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As filed with the Securities and Exchange Commission on July 25, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ACORN PRODUCTS, INC.
(Exact name of Registrant as specified in its charter)
500 DUBLIN AVENUE
COLUMBUS, OHIO 43215
(Address of principal executive offices, including zip code)
DELAWARE 22-3265462
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
ACORN PRODUCTS, INC.
1997 STOCK INCENTIVE PLAN
(Full title of the plans)
GAVRIL MIHALY
500 DUBLIN AVENUE
COLUMBUS, OHIO 43215
(614) 222-4400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
J. MITCHELL DOLLOFF, ESQ. CONOR D. REILLY
GENERAL COUNSEL AND VICE-PRESIDENT GIBSON, DUNN & CRUTCHER
500 DUBLIN AVENUE 200 PARK AVENUE
COLUMBUS, OHIO 43215 NEW YORK, NEW YORK 10166
(614) 222-4400 (212) 351-4000
CALCULATION OF REGISTRATION FEE
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==================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, 730,000 SHARES N/A $9,418,200 $2,854
$0.001 PAR VALUE
==================================================================================================
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(1) Pursuant to Rule 416, there also is being registered such number of
additional shares of Common Stock which may become available for
issuance pursuant to the foregoing plans in the event of certain
changes in outstanding shares, including reorganizations,
recapitalizations, stock splits, stock dividends and reverse stock
splits.
(2) Estimated solely for the purpose of calculating the registration fee.
The registration fee has been calculated in accordance with Rule 457(h)
under the Securities Act of 1933 as follows: (i) in the case of 400,900
shares registered with respect to the 1997 Stock Incentive Plan, based
upon the average price of the Common Stock on July 22, 1997 and (ii) in
the case of 329,100 shares registered with respect to the 1997 Stock
Incentive Plan, based upon an aggregate exercise price of $4,607,400.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the
Registrant with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Registrant's latest annual report filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or if
no such report has been filed, the Registrant's
registration statement on Form S-1 (File No.
333-25325);
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act, since the end of the
fiscal year covered by Registrant's latest annual
report referred to in (a) above;
(c) The description of the Common Stock contained in the
Registrant's effective registration statement on Form
8-A (File No. 000-22717), including any amendment or
report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment hereto that indicates that all
securities offered hereunder have been sold or that deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports and
documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such earlier statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock registered hereby will be
passed upon for the Registrant by Gibson, Dunn & Crutcher LLP, New York, New
York. Conor D. Reilly, a partner of Gibson, Dunn & Crutcher LLP is Chairman of
the Board and a director of the Registrant. J. Mitchell Dolloff was an associate
at Gibson, Dunn & Crutcher LLP prior to becoming General Counsel and
Vice-President of the Registrant on June 24, 1997.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
Registrant under certain circumstances from liabilities (including reimbursement
of expenses incurred) arising under the Securities Act.
As permitted by the DGCL, the Registrant's Certificate of Incorporation
(the "Charter") provides that, to the fullest extent permitted by the DGCL, no
director shall be liable to the Registrant or to its stockholders for monetary
damages for breach of his fiduciary duty as a director. Delaware law does not
permit the elimination of liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or stock redemptions
or repurchases or (iv) for any transaction from which the director derives an
improper personal benefit. The effect of this provision in the Charter is to
eliminate the rights of the Registrant and its stockholders (through
stockholders' derivative suits on behalf of the Registrant) to recover monetary
damages against a director for breach of fiduciary duty as a director thereof
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i)-(iv), inclusive, above. These
provisions will not alter the liability of directors under federal securities
laws.
The Registrant's Bylaws (the "Bylaws") provide that the Registrant may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Registrant) by reason of the fact that he is or was a director,
officer, employee or agent of the Registrant or is or was serving at the request
of the Registrant as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
The Bylaws also provide that the Registrant may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Registrant to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorneys'
fees)
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actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Registrant unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the Court of Chancery of the State of
Delaware or the court in which such action was brought shall deem proper.
The Bylaws also provide that to the extent a director or officer of the
Registrant has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for in the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
Registrant may purchase and maintain insurance on behalf of a director or
officer of the Registrant against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the Registrant would have the power to indemnify him against such liabilities
under such Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.01 Acorn Products, Inc. 1997 Stock Incentive Plan, incorporated by reference to Exhibit 10.4 to
Amendment No. 1 to the Registrant's Registration Statement on Form S-1 (Registration No.
333-25325) filed with the Commission on May 23, 1997.
4.02 Amended and Restated Certificate of Incorporation of the
Registrant, filed with the Delaware Secretary of State on April
15, 1997, incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-25325) filed with the Commission on April 17, 1997.
4.03 Bylaws of the Registrant, incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-25325) filed with the Commission on
April 17, 1997.
4.04 Form of Certificate for shares of Common Stock, $0.001 par value per share, of the Registrant
incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-25325) filed with the commission on May 23, 1997.
5.01 Opinion of Gibson, Dunn & Crutcher LLP
23.01 Consent of Ernst & Young L.L.P.
23.02 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.01)
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24.01 Power of Attorney (included on signature page of this Registration Statement)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) 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;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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 the 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 and of the estimated maximum offering range may be
reflected in the form of 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 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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
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the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) 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, 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 New York, State of New York, on July 25, 1997.
ACORN PRODUCTS, INC.
By: /s/ Gavril Mihaly
--------------------------------------
Gavril Mihaly
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gavril Mihaly and Conor D. Reilly and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution for him and in his name, place and stead, in
any and all capacities to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorneys-in-fact and agent or any of them or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacity indicated on
July 25, 1997.
SIGNATURE TITLE
--------- -----
/s/ Gavril Mihaly Director, President and
-------------------------- Chief Executive Officer
Gavril Mihaly (Principal Executive Officer)
/s/ Stephen M. Kasprisin Chief Financial Officer and Treasurer
-------------------------- (Principal Financial and Accounting Officer)
Stephen M. Kasprisin
/s/ Conor D. Reilly Chairman of the Board
--------------------------
Conor D. Reilly
/s/ William W. Abbott Director
--------------------------
William W. Abbott
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Director
--------------------------
Matthew S. Barrett
/s/ Stephen A. Kaplan Director
--------------------------
Stephen A. Kaplan
/s/ John I. Leahy Director
--------------------------
John I. Leahy
2
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
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4.01 Acorn Products, Inc. 1997 Stock Incentive Plan, incorporated by
reference to Exhibit 10.4 to Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-25325) filed
with the Commission on May 23, 1997.
4.02 Amended and Restated Certificate of Incorporation of the Registrant, as
filed with the Delaware Secretary of State on April 15, 1997,
incorporated herein by reference to Exhibit 3.1 of the Registrant's
Registration Statement on Form S-1 (No. 333-25325)
4.03 Bylaws of the Registrant, incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-1 (Registration No.
333-25325) filed with the Commission on April 17, 1997.
4.04 Form of Certificate for shares of Common Stock, $0.001 par value per
share, of the Registrant incorporated by reference to Exhibit 4.1 to
Amendment No. 1 to the Registrant's Registration Statement on Form S-1
(Registration No. 333-25325) filed with the commission on May 23, 1997.
5.01 Opinion of Gibson, Dunn & Crutcher LLP
23.01 Consent of Ernst & Young LLP
23.02 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.01)
24.01 Power of Attorney (included on signature page of this Registration
Statement)
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July 25, 1997
(212) 351-4000 C 07329-00031
Acorn Products, Inc.
500 Dublin Avenue
Columbus, Ohio 43216-1930
Re: Registration Statement on Form S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") of Acorn Products, Inc., a Delaware corporation (the
"Company"), filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the issuance of up to 730,000 shares (the "Shares") of Common
Stock, par value $.001 per share, of the Company pursuant to the Company's 1997
Stock Incentive Plan (the "Plan").
For the purposes of the opinion set forth below, we have examined and
are familiar with the proceedings taken and proposed to be taken by the Company
in connection with the issuance of the Shares, including, among other things,
such corporate records of the Company and certificates of officers of the
Company and of public officials and such other documents as we have deemed
relevant and necessary as the basis for the opinions set forth below. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such copies.
<PAGE> 2
Acorn Products, Inc.
July 25, 1997
Page 2
Based upon the foregoing examination and in reliance thereon, and
subject to the assumptions stated and relying on statements of fact contained in
the documents that we have examined and subject to the completion of the
proceedings to be taken by the Company prior to the sale of the Shares, it is
our opinion that when (i) the Registration Statement has become effective under
the Securities Act and (ii) the Shares have been issued and sold as contemplated
in the Registration Statement and the Plan and duly delivered, the Shares will
be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the United States of America and the General
Corporation Law of the State of Delaware. In rendering this opinion, we assume
no obligation to revise or supplement this opinion should current laws, or the
interpretations thereof, be changed.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
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Exhibit 23.01
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Stock Incentive Plan of Acorn Products, Inc. and
Subsidiaries of our report dated October 4, 1996 (except for Notes 3, 4, 11 and
13 as to which the d ate is June 2, 1997), with respect to the consolidated
financial statements and schedules of Acorn Products, Inc. included in the
Registration Statement on Form S-1 (No. 333-25325) which became effective with
the Securities and Exchange Commission on June 23, 1997.
/s/ ERNST & YOUNG L.L.P.
Columbus, Ohio
July 25, 1997
