acme_s8081210.htm
As filed
with the Securities and Exchange Commission on August 12, 2010
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
Registration
Statement
Under the
Securities Act of 1933
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 Employee Stock Option Plan
(Full
Title of the Plan)
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
1650
Market Street
Philadelphia,
Pennsylvania 19103-7395
Phone
(215) 864-7000
Fax (215)
864-7123
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definition of “accelerated filer and large accelerated filer” in Rule 12b-2
of the Exchange Act (Check one).
Large accelerated
filer [ ] Accelerated
filer [ ] Non-accelerated
filer [ ] Smaller
Reporting Company [X]
| CALCULATION OF
REGISTRATION FEE |
|
| |
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|
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|
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|
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Title
of securities
to be
registered
|
|
Amount to
be
registered (1)
|
|
|
Proposed
maximum
offering
price
per
share
|
|
|
Proposed
maximum
aggregate
offering
price
|
|
|
Amount
of
registration
fee
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Common
Stock,par
value $2.50
per share |
|
112,562 |
(2) |
|
$ |
10.10 |
(3) |
|
$ |
1,136,876 |
|
|
$ |
81.06 |
|
| |
|
37,438 |
(4) |
|
$ |
10.46 |
(5) |
|
$ |
391,601 |
|
|
$ |
27.92 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total |
|
150,000 |
|
|
|
|
|
|
|
|
|
|
$ |
108.98 |
|
| |
|
|
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|
|
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|
(1) Pursuant
to Rule 416 under the Securities Act of 1933 (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
under the Acme United Corporation Employee Stock Option Plan (“Employee Plan”)by
reason of any stock splits, stock dividends or similar
transactions.
(2) Represents
shares of the Common Stock of the Company issuable upon exercise of options
granted in August 2010 under the Employee Plan.
(3) Exercise
price of options granted in August 2010.
(4) Represents
additional shares of the Common Stock of the Company issuable upon exercise
of options which may be granted under the Employee Plan.
(5) 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 shares of the Company’s Common Stock reported on the
NYSE AMEX on August 11, 2009.
Explanatory
Note.
This
Registration Statement on Form S-8 is being filed for the purpose of
registering:
(i) 150,000
additional shares of Common Stock which may be issued pursuant to the the
Employee Plan.
(ii) 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 Employee Plan are also
being registered hereunder.
In
accordance with Instruction E of the General Instructions to Form S-8, the
contents of the Registration Statement on Form S-8 (Reg. No.
333-145516)previously filed by the Company with the Securities and Exchange
Commission (the "Commission") relating to the Employee Plan are
incorporated by reference herein to the extent not otherwise modified or
superseded by this Registration Statement.
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
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:
(a) our
Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on
March 9, 2010;
(b) our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010 and June
30, 2010, filed on May 10, 2010 and August 12, 2010, respectively.
(c) our
Current Reports on Form 8-K filed January 27, February 26, April 16, April 21
(two reports) and July 23, 2010.
(d) the
description of our Common Stock contained in our Current Report on
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 (the “Exchange Act”)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, because the Company’s class of Common Stock is registered under
Section 12 of the Exchange Act.
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 |
| |
|
| 5.1 |
Opinion of
Brody Wilkinson PC |
| 23.1 |
Consent of
independent registered public accounting firm |
| 23.3 |
Consent of
Brody Wilkinson PC (included in Exhibit
5.1) |
| 24.1 |
Power of
attorney (included on signature page of this
Registration Statement) |
| 99.02 |
Employee Stock
Option Plan, as amended |
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 Town of
Fairfield, State of Connecticut, on the 12th day of August, 2010.
| |
ACME UNITED
CORPORATION |
| |
|
|
| |
By: |
/s/ Walter C. Johnsen |
| |
|
Walter C.
Johnsen, Chairman and Chief |
| |
|
Executive
Officer |
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, with 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 12th day of August, 2010:
| Signature |
|
Title |
| |
|
|
| /s/ Walter C.
Johnsen |
|
Chairman of the
Board and Chief Executive Officer and Director |
| Walter C.
Johnsen |
|
|
| |
|
|
| /s/ Brian S.
Olschan |
|
President, Chief
Operating Officer
and Director |
| Brian S.
Olschan |
|
|
| |
|
|
| /s/ Paul
Driscoll |
|
Vice President,
Chief Financial Officer,
Secretary and
Treasurer |
| Paul
Driscoll |
|
|
| |
|
|
| /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/ Stevenson E.
Ward III |
|
Director |
| Stevenson E. Ward
III |
|
|
Exhibit
Index
| Exhibit No. |
Identification of
Exhibit |
| |
|
| 5.1 |
Opinion of
Brody Wilkinson PC |
| 23.1 |
Consent of
independent registered public accounting firm |
| 23.3 |
Consent of
Brody Wilkinson PC (included in Exhibit
5.1) |
| 24.1 |
Power of
attorney (included on signature page of this
Registration Statement) |
| 99.02 |
Employee Stock
Option Plan, as amended |