As filed with the Securities and Exchange Commission on August 17, 2009
Registration No. 333-______
UNITED STATES
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 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
One Liberty place, Suite 1800
Philadelphia, Pennsylvania 19103-7395
Phone (215) 864-7000
Fax (215) 864-7123
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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
=================================================================================================================
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 94,562 (2) $ 7.90 (3) $ 747,040 $ 41.68
55,438 (4) $ 8.52 (5) $ 472,332 $ 26.36
Total 150,000 $ 68.04
=================================================================================================================
(1) Pursuant to Rule 416 under the Securities Act of 1933, 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 June 2009 under the Employee Plan.
(3) Exercise price of options granted in June 2009.
(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
of 1933, 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 12, 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 Acme United Corporation Employee Stock Option Plan, as amended (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 referred to
above, are also being registered hereunder.
(2)
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 of 1933, as amended (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, 2008,
filed on March 10, 2009;
(b) our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009 and
June 30, 2009, filed on May 5, 2009 and August 14, 2009, respectively.
(c) our Current Reports on Form 8-K filed February 27, 2009, April 17, 2009, and
July 17, 2009.
(d) the description of our Common Stock contained in the 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.
(3)
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.
(4)
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 UHY LLP, independent registered public
accounting firm
23.2 Consent of Ernst & Young LLP, independent registered public
accounting firm
23.3 Consent of Brody Wilkinson PC (included in Exhibit 5.1)
99.02* Employee Stock Option Plan, as amended
- ------------------
* Incorporated by reference to the Company's Form 8-K filed on April 27,
2007, except that the number of shares authorized to be issued under the
Plan, as amended, pursuant to Section 3(a) shall be increased from 460,000
shares to 610,000 shares.
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.
(5)
(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.
(6)
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 17th day of
August, 2009.
ACME UNITED CORPORATION
By: /s/ Walter C. Johnsen
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Walter C. Johnsen, Chairman 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, 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 17th day of August, 2009:
Signature Title Date
/s/ Walter C. Johnsen Chairman of the Board
- ----------------------------- and Chief Executive
Walter C. Johnsen Officer and Director
/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
(7)
/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
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Exhibit No. Identification of Exhibit
5.1 Opinion of Brody Wilkinson PC
23.1 Consent of UHY LLP, independent registered public
accounting firm
23.2 Consent of Ernst & Young LLP, independent registered public
accounting firm
23.3 Consent of Brody Wilkinson PC (included in Exhibit 5.1)
99.02* Employee Stock Option Plan, as amended
- ------------------
* Incorporated by reference to the Company's Form 8-K filed on April 27,
2007, except that the number of shares authorized to be issued under the
Plan, as amended, pursuant to Section 3(a) shall be increased from 460,000
shares to 610,000 shares.
(8)