As filed with the Securities and Exchange Commission on August 17,
2015
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) |
55 Walls Drive
Fairfield, Connecticut 06824
(Address
of principal executive offices, including zip code)
Acme United Corporation 2012 Employee
Stock Option Plan
(Full Title of the Plan)
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Paul Driscoll
Vice President, Chief Financial Officer,
Secretary and Treasurer
55 Walls Drive
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.
Earp Cohn P.C.
123 South Broad Street, Suite 2170
Philadelphia, Pennsylvania 19109-1022
Phone (215) 963-9520
Fax (215) 963-9620
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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 definitions of “large accelerated
filer”,” accelerated filer” and “smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer [_] Accelerated
filer [_] Non-accelerated filer [_] Smaller Reporting Company [X]
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 |
| |
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| | | |
| | | |
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Common
Stock, par value $2.50 per share | |
| 180,000 | (3) | |
$ | 18.22
| (2) | |
$ | 3,279,600 | | |
$ | 300.74 | |
Total: | |
| 180,000 | | |
| | | |
$ | 3,279,600 | | |
$ | 300.74 | |
(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, an indeterminate amount of additional shares of the Company’s common stock , par
value $2.50 per share (the “Common Stock”), that may become issuable pursuant to the anti-dilution or other adjustment
provisions of the Acme United Corporation 2012 Employee Stock Option Plan, as amended effective April 20, 2015 (the “Employee
Plan”).
(2) 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 Common Stock reported on the NYSE MKT on August 7, 2015.
(3) Consisting of shares of Common Stock
issuable upon exercise of options which have been or may be granted under the Employee Plan.
Explanatory Note.
The Company is filing this Registration Statement on Form S-8 for
the purpose of registering a total of 180,000 shares of Common Stock, par value $2.50 per share, of the Company (the “Common
Stock”) which consist of:
(i) an additional 180,000 shares of Common Stock, par value $2.50
per share, of the Company (the “Common Stock”) which may be issued pursuant to the Acme United Corporation 2012 Employee
Stock Option Plan, as amended effective April 20, 2015 (the “Employee Plan”) and,
(ii) Pursuant to Rule 416 under the
Securities Act of 1933, as amended (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.
In accordance with Instruction E of the General Instruction to Form
S-8, the contents of the Registration Statement on Form S-8 (Reg. No. 333-198220) filed on August 18, 2014 by the Company with
the Securities and Exchange Commission (the “Commission”) relating to the 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, 2014, filed on March 6, 2015; |
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(b) |
(i) |
our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2015 and June 30, 2015, filed on May 13, 2015 and August 14, 2015, respectively. |
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(ii) |
our Current Reports on Form 8-K filed
on February 26, April 17, April 22, and July 22, 2015 (other than the portions of those documents not deemed to be filed); and |
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(c) |
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 that we file 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 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 ("CGS") Sections
33-770 through 33-779 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, arbitrative 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. |
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Identification of Exhibit |
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5.1 |
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Opinion of Brody Wilkinson PC |
23.1 |
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Consent
of Marcum LLP, independent registered public accounting firm
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23.3 |
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Consent of Brody Wilkinson PC (included in Exhibit 5.1) |
24.1 |
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Power of attorney (included on signature page of this Registration Statement) |
4.02* |
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Employee Stock Option Plan, as amended |
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* Incorporated by reference to the Company’s quarterly report
on Form 10-Q for the quarter ended June 30, 2012, filed on August 14, 2012, except that the number of shares of Common Stock authorized
to be issued under the Employee Plan, as amended, pursuant to Section 3(a) shall be increased from 520,000 to 700,000 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 reports filed with
or furnished to the Commission 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 17th day of August, 2015.
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ACME UNITED CORPORATION |
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By: |
/s/ Walter C. Johnsen |
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Walter C. Johnsen, Chairman of the Board 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 17th day of August, 2015:
Signature |
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Title |
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/s/ Walter C. Johnsen |
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Walter C. Johnsen |
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Chairman of the Board, Chief Executive Officer and Director |
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/s/ Brian S. Olschan |
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Brian S. Olschan |
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President, Chief Operating Officer and Director |
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/s/ Paul Driscoll |
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Paul Driscoll |
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Vice President, Chief Financial Officer, Secretary and Treasurer |
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/s/ Rex L. Davidson |
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Rex L. Davidson |
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Director |
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/s/ Richmond Y. Holden, Jr. |
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Richmond Y. Holden, Jr. |
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Director |
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/s/ Susan H. Murphy |
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Susan H. Murphy |
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Director |
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/s/ Stevenson E. Ward III |
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Stevenson E. Ward III |
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Director |
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Exhibit
Index
Exhibit No. |
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Identification of Exhibit |
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5.1 |
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Opinion of Brody Wilkinson PC |
23.1 |
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Consent
of Marcum LLP, independent registered public accounting firm
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23.3 |
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Consent of Brody Wilkinson PC (included in Exhibit 5.1) |
24.1 |
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Power of attorney (included on signature page of this Registration Statement) |
4.02* |
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Employee Stock Option Plan, as amended |
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* Incorporated by reference to the
Company’s quarterly report on Form 10-Q for the quarter ended June 30, 2012, filed on August 14, 2012, except that the number
of shares of Common Stock authorized to be issued under the Employee Plan, as amended, pursuant to Section 3(a) shall be increased
from 520,000 to 700,000 shares.
Exhibit 5.1
August 17, 2015
Board of Directors
Acme United Corporation
55 Walls Drive
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 a total of an additional 180,000 shares of Common Stock, par value $2.50 per share, of the Company
(the “Shares”) issuable upon exercise of options granted or which may be granted pursuant to the Acme United Corporation
2012 Employee Stock Option Plan, as amended effective April 20, 2015 (the “Plan”).
We have examined and are familiar with
(i) the Restated Certificate of Incorporation and the Bylaws of the Company as presently in effect; (ii) a Certificate of Existence
for the Company issued by the Connecticut Secretary of the State dated August 10, 2015; (iii) the corporate proceedings approving
the Plan; (iv) the Plan; (v) a form of option agreement under the Plan; and (vi) 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 documents 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 Shares pursuant to the Plan and the related option
agreements thereunder after the date hereof, including payment to the Company of the required option exercise 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.
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Very truly yours, |
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BRODY WILKINSON PC |
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By: |
/s/ James E. Rice |
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James E. Rice, Vice President |
Exhibit
23.1
Consent of Marcum LLP, Independent Registered
Public Accounting Firm
We consent to the incorporation by reference in this Registration
Statement of Acme United Corporation on Form S-8 of our report dated March 6, 2015, with respect to our audits of the consolidated
financial statements of Acme United Corporation as of December 31, 2014 and 2013 and for the years then ended, appearing in the
Annual Report on Form 10-K of Acme United Corporation for the year ended December 31, 2014.
/s/ Marcum LLP
Marcum LLP
New Haven, Connecticut
August 17, 2015
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