As filed with the Securities and Exchange Commission on July 8, 2005
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)
1931 Black Rock Turnpike
Fairfield, Connecticut 06825
(Address of principal executive offices, including zip code)
Acme United Corporation 2005 Non-Salaried Director Stock Option Plan
Acme United Corporation 2002 Employee Stock Option Plan, as amended
(Full Title of the Plans)
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Paul Driscoll
Chief Financial Officer
1931 Black Rock Turnpike
Fairfield, Connecticut 06825
(Name and address of agent for service)
(203) 332-7330
(Telephone number, including area code, of agent for service)
copy to:
Merritt A. Cole, Esq.
Dilworth Paxson LLP
3200 Mellon Bank Center
1735 Market Street
Philadelphia, Pennsylvania 19103
Phone (215) 575-7000
Fax (215) 575-7200
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities To Be Amount Being Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Common Stock, par value
$2.50 per share............. 151,938 $17.99(2) $2,733,365(2) $321.72
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Common Stock, par value
$2.50 per share............. 171,500 $17.02(3) $1,826,508(3) $214.98
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Common Stock, par value
$2.50 per share............. 7,500 $15.15(4) $113,625(4) $13.37
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TOTAL 330,938 $550.07
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457 (c) and 457 (h) under the Securities Act of 1933,
as amended (the "Securities Act"), based upon the average of the high
and low prices for a share of Common Stock reported on the American
Stock Exchange as of July 1, 2005.
(3) Calculated pursuant to Rule 457 (h)(1) under the Securities Act; the
171,500 shares are issuable upon exercise of outstanding options
granted under the 2002 Employee Stock Option Plan, which options have
exercise prices in the range of $3.35 - $17.02 per share.
(4) Calculated pursuant to Rule 457 (h)(1) under the Securities Act; the
7,500 shares are issuable upon exercise of outstanding options granted
under the 2005 Non-Salaried Director Stock Option Plan, which options
have an exercise price of $15.15 per share.
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 of 1933, as amended (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").
Explanatory Note.
This Registration Statement on Form S-8 is being filed for the purpose of
registering:
(i) 50,000 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 (the "Director Plan");
and
(ii) 280,938 shares of Common Stock which may be issued pursuant to
the Company's 2002 Employee Stock Option Plan (the "Employee
Plan").
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.
In February 2002, the Board of Directors of the Company approved the Employee
Plan, subject to stockholder approval. Stockholder approval of the Employee Plan
was received at the Annual Meeting of Stockholders held on April 22, 2002. In
February 2005, the Board of Directors of the Company approved the Director Plan
as well as an amendment to the Employee Plan to increase the number of shares of
Common Stock which may be issued pursuant to the Employee Plan from 150,000
shares to 300,000 shares, both subject to stockholder approval. Stockholder
approval of the Director Plan and of the amendment to the Employee Plan was
received at the Annual Meeting of Stockholders held on April 25, 2005. (Options
to purchase a total of 19,062 shares of Common Stock under the Employee Plan
have been previously exercised and such 19,062 shares are not being registered
hereunder.)
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 year ended December 31,
2004;
|X| our Quarterly Report on Form 10-Q for the quarter ended March 31,
2005;
|X| our Current Reports on Form 8-K filed February 9, 2005, March 3,
2005, March 11, 2005, March 30, 2005, March 31, 2005, and April
21, 2005; 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 have filed in the past, or 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.
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
4.1 Restated Certificate of Organization(a)
4.2 Bylaws of the Company(b)
4.3 Specimen Common Stock Certificate(c)
4.4 2005 Non-Salaried Director Stock Option Plan(d)
4.5 2002 Employee Stock Option Plan, as amended
4.6 Form of Option Agreement
5.1 Opinion of Brody, Wilkinson and Ober, P.C.
23.1 Consent of Brody, Wilkinson and Ober, P.C. (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent registered public
accounting firm
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(a) Incorporated by reference to Exhibit 3(i) to the Company's Form 8-K filed on
July 8, 2005.
(b) Incorporated by reference to Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for year ended December 31, 2004.
(c) Incorporated by reference to Exhibit 4.1 to the Company's Form 8-K filed on
July 8, 2005.
(d) Incorporated by reference to Exhibit B to the Company's definitive proxy
statement on Schedule 14A filed on March 29, 2005.
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.
(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.
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 City of Fairfield, State of Connecticut, on the 8th day of
July, 2005.
ACME UNITED CORPORATION
By: /s/ Walter C. Johnsen
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Walter C. Johnsen, President 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 below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
/s/ Walter C. Johnsen President, Chief Executive Officer July 8, 2005
-------------------------------------------- and Director
Walter C. Johnsen
/s/ Paul Driscoll Vice President and July 8, 2005
-------------------------------------------- Chief Financial Officer
Paul Driscoll
/s/ Gary D. Penisten Chairman of the Board July 8, 2005
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Gary D. Penisten
/s/ Wayne R. Moore Director July 8, 2005
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Wayne R. Moore
/s/ George R. Dunbar Director July 8, 2005
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George R. Dunbar
/s/ Richmond Y. Holden, Jr. Director July 8, 2005
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Richmond Y. Holden, Jr.
/s/ Brian S. Olschan Director July 8, 2005
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Brian S. Olschan
/s/ Stevenson E. Ward III Director July 8, 2005
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Stevenson E. Ward III
/s/ Susan H. Murphy Director July 8, 2005
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Susan H. Murphy
Exhibit Index
Exhibit No. Identification of Exhibit
4.1 Restated Certificate of Organization(a)
4.2 Bylaws of the Company(b)
4.3 Specimen Common Stock Certificate(c)
4.4 2005 Non-Salaried Director Stock Option Plan(d)
4.5 2002 Employee Stock Option Plan, as amended
4.6 Form of Option Agreement
5.1 Opinion of Brody, Wilkinson and Ober, P.C.
23.1 Consent of Brody, Wilkinson and Ober, P.C. (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent registered public
accounting firm
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(a) Incorporated by reference to Exhibit 3(i) to the Company's Form 8-K filed on
July 8, 2005.
(b) Incorporated by reference to Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for year ended December 31, 2004.
(c) Incorporated by reference to Exhibit 4.1 to the Company's Form 8-K filed on
July 8, 2005.
(d) Incorporated by reference to Exhibit B to the Company's definitive proxy
statement on Schedule 14A filed on March 29, 2005.