As filed with the Securities and Exchange Commission on August 16, 2007
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
Registration Statement
Under the Securities Act of 1933
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Acme United Corporation
(Exact name of Registrant as specified in its charter)
Connecticut 06-0236700
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
60 Round Hill Road
Fairfield, Connecticut 06824
(Address of principal executive offices, including zip code)
Acme United Corporation 2005 Non-Salaried Director Stock Option Plan
Acme United Corporation Employee Stock Option Plan
(Full Title of the Plans)
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Paul Driscoll
Vice President, Chief Financial Officer,
Secretary and Treasurer
60 Round Hill Road
Fairfield, Connecticut 06824
(Name and address of agent for service)
(203) 254-6060
(Telephone number, including area code, of agent for service)
copy to:
Merritt A. Cole, Esq.
White and Williams LLP
1800 One Liberty Place
Philadelphia, Pennsylvania 19103-7395
Phone (215) 864-7000
Fax (215) 864-7123
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CALCULATION OF REGISTRATION FEE
=================================================================================================================
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to registered (1) offering price aggregate registration
be registered per share offering price fee
- -----------------------------------------------------------------------------------------------------------------
Common Stock, par value
$2.50 per share
Issuable under the
2005 Non-Salaried
Director Stock
Option Plan 40,000 (2) $ 14.50 (4) $ 580,000 (4) $ 17.80
Issued or issuable under
the Employee Stock 106,438 (2) $ 14.50 (4) $ 1,543,351 (4) $ 43.38
Option Plan 52,062 (3) $ 14.93 (5) $ 777,285 $ 23.86
1,500 (3) $ 14.85 (5) $ 22,275 $ 0.68
Total 200,000 $ 89.73
=================================================================================================================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act") this Registration Statement covers, in addition to the
number of shares stated herein, any additional shares of the Company's
common stock that become issuable by reason of any stock splits, stock
dividends or similar transactions.
(2) Represents additional shares of the Common Stock of the Company issuable
upon exercise of options which may be granted under the Employee Stock
Option Plan or the 2005 Non-Salaried Director Stock Option Plan,
respectively.
(3) Represents additional shares of the Common Stock of the Company issuable
upon exercise of outstanding options granted under the Employee Stock
Option Plan.
(4) Estimated pursuant to Rules 457 (c) and 457 (h)(1) under the Securities
Act, solely for the purpose of calculating the registration fee, based upon
the average of the high and low prices for a share of the Company's Common
Stock reported on the American Stock Exchange as of August 14, 2007.
(5) Calculated pursuant to Rule 457(h)(1) under the Securities Act. The amount
shown represents the exercise price of options granted under the Employee
Stock Option Plan outstanding as of the date of this Registration
Statement.
EXPLANATORY NOTES.
(a) As permitted by General Instruction E to Form S-8 regarding the
registration of additional securities of the same class as other securities
for which a registration statement filed on Form S-8 relating to an
employee benefit plan is effective, the contents of the following are
incorporated herein by reference:
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission on July 8, 2005 (File No. 333-12478) with respect to the Acme
United Corporation 2005 Non-Salaried Director Stock Option Plan and the
Acme United Corporation 2002 Employee Stock Option Plan, as amended.
(b) This Registration Statement on Form S-8 is being filed for the purpose of
registering:
(i) 40,000 additional shares of common stock, par value $2.50 per
share (the "Common Stock") of Acme United Corporation (the
"Company")which may be issued pursuant to the Company's 2005
Non-Salaried Director Stock Option Plan, as amended (the
"Director Plan"); and
(ii) 160,000 additional shares of Common Stock which may be issued
pursuant to the Company's Employee Stock Option Plan, as amended
(the "Employee Plan").
(iii) Pursuant to Rule 416 under the Securities Act, an indeterminate
amount of additional shares of Common Stock, which may become
issuable pursuant to the anti-dilution or other adjustment
provisions of the option plans referred to above, are also being
registered hereunder.
On February 27, 2007, the Board of Directors of the Company approved the
amendment of the Employee Plan and the Director Plan to increase the number of
shares of Common Stock, subject to shareholder approval. Shareholder approval of
the respective amendments to the Employee Plan and the Director Plan was
received at the Annual Meeting of Shareholders held on April 23, 2007. The plans
were amended as follows:
(a) The amendment to the Director Plan increases the number of shares
of Common Stock which may be issued pursuant to the Director
Plan, by 40,000 shares, from 50,000 to 90,000 shares.
(b) The amendment to the Employee Plan increases the number of shares
of Common Stock which may be issued pursuant to the Employee
Plan, by 160,000 shares, from 300,000 shares to 460,000 shares.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be
sent or given to participants as specified by Rule 428(b)(1) promulgated under
the Securities Act. Such documents need not be filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated herein by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act
(the "Prospectus").
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission are incorporated by
reference and made a part of this prospectus.
|X| our Annual Report on Form 10-K for the fiscal year ended December 31, 2006,
filed on March 15, 2007;
|X| our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2007
and June 30, 2007, filed on May 15, 2007 and August 7, 2007, respectively;
|X| our Current Reports on Form 8-K filed August 3, 2007, July 27, 2007, April
27, 2007, April 20, 2007 and March 2, 2007; and
|X| the description of our Common Stock contained in the Form 8-K filed on July
8, 2005, including any amendment to that form that we may file in the future,
for the purpose of updating the description of our common stock.
All documents we have filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 subsequent to the effective date of this
Registration Statement, prior to the filing of a post-effective amendment which
indicates that all securities offered by this prospectus have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this prospectus and to be a part of this prospectus
from the date of filing of such documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in any other subsequently filed
document which also is or is deemed to be incorporated by reference modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Connecticut General Statutes Sections ("CGS") 33-771 through 33-778 provide for
mandatory, permissive and court-ordered indemnification of directors who are
parties to a proceeding. For purposes of these indemnification statutes a
"proceeding" is defined as any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal.
The Company's Restated Certificate of Incorporation provides that the Company
shall indemnify an individual who is a party to a proceeding because he is a
director or officer of the corporation against liability in the proceeding if:
(1)(A) he conducted himself in good faith; (B) he reasonably
believed (i) in the case of conduct in his official capacity, that his conduct
was in the best interests of the corporation; and (ii) in all other cases, that
his conduct was at least not opposed to the best interests of the corporation;
and (C) in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful; or
(2) such liability arises from any action taken, or any failure to
take any action, as a director or officer, except liability that (A) involved a
knowing and culpable violation of law by the director or officer; (B) enabled
the director, officer or an associate (as defined in the CGS) to receive an
improper personal gain; (C) showed a lack of good faith and a conscious
disregard for the duty of the director or officer to the corporation under
circumstances in which the director or officer was aware that his conduct or
omission created an unjustifiable risk of serious injury to the corporation; (D)
constituted a sustained and unexcused pattern of inattention that amounted to an
abdication of the director's or officer's duty to the corporation; or (E)
created liability under the CGS for the illegal payment of dividends.
The Registrant has obtained directors' and officers' reimbursement and liability
insurance against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Identification of Exhibit
4.01* Restated Certificate of Organization
4.02** Bylaws of the Company
5.1 Opinion of Brody, Wilkinson and Ober, P.C.
23.1 Consent of Ernst & Young LLP, independent registered public
accounting firm
23.2 Consent of Brody, Wilkinson and Ober, P.C. (included in
Exhibit 5.1)
-2-
24.1 Power of Attorney of Directors and Officers (included on the
signature page below)
99.01*** 2005 Non-Salaried Director Stock Option Plan, as amended
99.02*** Employee Stock Option Plan, as amended
- ------------------
* Incorporated by reference to the Company's Form 8-K filed on July 8, 2005.
** Incorporated by reference to the Company's Form 8-K filed on
February 28, 2006.
*** Incorporated by reference to the Company's Form 8-K filed on April 27, 2007.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(b) To reflect in the prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(c) To include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement; provided, however, that
paragraphs (1)(a) and (1)(b) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
-3-
(4) That, for the purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the exchange
Act) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Fairfield, State of Connecticut, on the 16th day of
August, 2007.
ACME UNITED CORPORATION
By: /s/ Walter C. Johnsen
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Walter C. Johnsen, Chairman of the
Board and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Walter C. Johnsen and Paul Driscoll, or either of
them, as true and lawful attorneys-in-fact and agents with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities to sign the Registration Statement filed herewith and any
or all amendments to said Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, the Securities
and Exchange Commission granting unto said attorney-in-fact and agents the full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agents or any of them, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
below on the 16th day of August, 2007:
Signature Title
- --------- -----
/s/ Walter C. Johnsen Chairman of the Board
- ---------------------------- and Chief Executive
Walter C. Johnsen Officer and Director
/s/ Gary D. Penisten Chairman Emeritus of
- ---------------------------- the Board and Director
Gary D. Penisten
-5-
/s/ Brian S. Olschan President, Chief
- ---------------------------- Operating Officer and
Brian S. Olschan Director
/s/ Paul Driscoll Vice President, Chief
- ---------------------------- Financial Officer,
Paul Driscoll Secretary and
Treasurer
/s/ Rex L. Davidson Director
- ----------------------------
Rex L. Davidson
/s/ Richmond Y. Holden, Jr. Director
- ----------------------------
Richmond Y. Holden, Jr.
/s/ Susan H. Murphy Director
- ----------------------------
Susan H. Murphy
/s/ Stephen Spinelli Director
- ----------------------------
Stephen Spinelli
/s/ Stevenson E. Ward III Director
- ----------------------------
Stevenson E. Ward III
-6-
Exhibit Index
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Exhibit No. Identification of Exhibit
4.01* Restated Certificate of Organization
4.02** Bylaws of the Company
5.1 Opinion of Brody, Wilkinson and Ober, P.C.
23.1 Consent of Ernst & Young LLP, independent registered public
accounting firm
23.2 Consent of Brody, Wilkinson and Ober, P.C. (included in
Exhibit 5.1)
24.1 Powers of Attorney of Directors and Officers
(included on the signature page herein)
99.01*** 2005 Non-Salaried Director Stock Option Plan, as amended
99.02*** Employee Stock Option Plan, as amended
- ------------------
* Incorporated by reference to the Company's Form 8-K filed on July 8, 2005.
** Incorporated by reference to the Company's Form 8-K filed on
February 28, 2006.
*** Incorporated by reference to the Company's Form 8-K filed on April 27, 2007.
-7-
Exhibit 5.1
August 16, 2007
Board of Directors
Acme United Corporation
60 Round Hill Road
Fairfield, CT 06824
Dear Sirs and Madam:
We are corporate general counsel for Acme United Corporation (the
"Company"). We are delivering this opinion in connection with the filing with
the Securities and Exchange Commission (the "Commission") on or about the date
hereof of a Form S-8 Registration Statement (the "Registration Statement")
relating to (i) 160,000 shares of Common Stock, par value $2.50 per share, of
the Company (the "Common Stock") to be offered pursuant to the Acme United
Corporation Employee Stock Option Plan, as amended (the "Employee Plan"); and
(ii) 40,000 shares of Common Stock to be offered pursuant to the Acme United
Corporation 2005 Non-Salaried Director Stock Option Plan (the "Director Plan")
(both the 160,000 shares of Common Stock to be offered pursuant to the Employee
Plan and the 40,000 shares of Common Stock to be offered pursuant to the
Director Plan collectively, referred to herein as the "Shares").
We have examined and are familiar with (i) the Restated Certificate of
Incorporation and the Bylaws of the Company; (ii) the corporate proceedings
approving the Employee Plan and the Director Plan (both the Employee Plan and
the Director Plan are collectively, referred to herein as the "Plans"); (iii)
the Plans; and (iv) such other documents and instruments as we have considered
necessary for the purposes of the opinions hereinafter set forth.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all submitted to us as copies (including telecopies). This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Connecticut.
2. Upon issuance and delivery of the Shares pursuant to the
respective Plans and the relevant option agreements thereunder
after the date hereof, including payment to the Company of the
required option price for the Shares, the Shares will be validly
issued, fully paid, and nonassessable.
This opinion letter is provided to you for your benefit solely with
regard to the Registration Statement, may be relied upon by you only in
connection with the Registration Statement, and may not be relied upon by any
other person or for any other purpose without our prior written consent.
We are members of the Bar of the State of Connecticut and some of us
are members of other jurisdictions not relevant herein. In connection herewith,
we express no opinion on the laws of any jurisdiction other than the laws of the
State of Connecticut.
We hereby consent to the use of this opinion and our names in
connection with the Registration Statement filed with the Commission to register
the Shares.
Very truly yours,
BRODY, WILKINSON and OBER, P.C.
By: /s/ James E. Rice
----------------------------------
James E. Rice, Vice President
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form
S-8 ) pertaining to the Acme United Corporation 2005 Non-Salaried Director Stock
Option Plan and the Acme United Corporation Employee Stock Option Plan, of our
report dated March 9, 2007, with respect to the consolidated financial
statements and schedule of Acme United Corporation and subsidiaries included in
its Annual Report (Form 10-K) for the year ended December 31, 2006, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Hartford, Connecticut
August 10, 2007