<PAGE>
As filed with the Securities and Exchange Commission on July 9, 1998
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)
DELAWARE 22-3265462
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 DUBLIN AVENUE
COLUMBUS, OHIO 43215
(Address of Registrant's principal executive offices)
------------------------------
ACORN PRODUCTS, INC.
1997 NONEMPLOYEE DIRECTOR STOCK
INCENTIVE PLAN
(Full Title of the Plan)
------------------------------
J. Mitchell Dolloff
Vice President and General Counsel
Acorn Products, Inc.
500 Dublin Avenue
Columbus, Ohio 43215
(614) 222-4400
(Name, address and telephone number of agent for service)
------------------------------
Copies of Correspondence to:
Robert J. Tannous, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed
Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share* Offering Price* Fee*
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value.... 25,000 $6.75 $168,750 $50.00
- --------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h), based upon the average of the high and low prices of Acorn
Common Stock as reported on the Nasdaq National Market System on July 6, 1998.
This Registration Statement shall be deemed to cover an indeterminate number of
additional shares of Acorn Products, Inc. Common Stock, $.001 par value, as may
be issuable pursuant to future stock dividends, stock splits or similar
transactions.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information concerning the Acorn Products,
Inc. 1997 Nonemployee Director Stock Incentive Plan, specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not filed as part of this Registration Statement in accordance with the Note to
Part I of the Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Securities and
Exchange Commission (the "Commission") by the Registrant pursuant to Sections,
13(a), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference:
1. Annual Report on Form 10-K for the year ended August 1, 1997, as
filed with the Commission on October 31, 1997;
2. Current Report on Form 8-K, dated August 22, 1997, as filed with
the Commission on August 22, 1997;
3. Current Report on Form 8-K, dated September 18, 1997, as filed
with the Commission on September 18, 1997;
4. Quarterly Reports on Form 10-Q for the quarters ended October 31,
1997, January 30, 1998, and May 1, 1998, as filed with the
Commission on December 15, 1997, March 13, 1998, and June 15,
1998, respectively; and
5. Proxy Statement for the Annual Meeting of Stockholders held on
December 9, 1997, as filed with the Commission on November 5,
1997.
The description of Acorn's Common Stock which is contained in Acorn's
Form 8-A (Registration No. 0-22717) filed with the Commission pursuant to
Section 12 of the Exchange Act, as updated in any amendment or report filed for
the purpose of updating such descriptions, are hereby incorporated by reference.
All documents filed by Acorn, pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement 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
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
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 of 1933, as amended (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) 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 upon application that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court 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.
<PAGE>
ITEM 8. EXHIBITS
Exhibit Exhibit
Number Description
- ------- -----------
4(a) * Acorn Products, Inc. 1997 Nonemployee Director Stock Incentive
Plan
4(b) Amended and Restated Certificate of Incorporation of Acorn
Products, Inc. (Previously filed as Exhibit 3.1 to Registration
Statement on Form S-1 (Registration No. 333-25325), and
incorporated herein by reference).
4(c) Amended and Restated Bylaws of Acorn Products, Inc. (Previously
filed as Exhibit 3.2 to Registration Statement on Form S-1
(Registration No. 333-25325), and incorporated herein by
reference).
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur (included in Exhibit 5
filed herewith).
23(b)* Consent of Ernst & Young LLP.
24 * Power of Attorney.
- -------------------------
* Filed with this Registration Statement
<PAGE>
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on June 29, 1998.
ACORN PRODUCTS, INC.
By: /s/ Gabe Mihaly
------------------------------------------
Gabe Mihaly, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Gabe Mihaly )
- ----------------------- President, Chief Executive Officer, )
Gabe Mihaly and Director ) June 29, 1998
(Principal Executive Officer) )
)
* Stephen M. Kasprisin )
- ----------------------- Vice President and Chief Financial )
Stephen M. Kasprisin Officer )
(Principal Accounting and ) June 29, 1998
Financial Officer) )
)
* Conor D. Reilly )
- ----------------------- Chairman of the Board of Directors ) June 29, 1998
Conor D. Reilly )
)
)
* William W. Abbott )
- ----------------------- Director ) June 29, 1998
William W. Abbott )
)
)
* Matthew S. Barrett )
- ----------------------- Director ) June 29, 1998
Matthew S. Barrett )
)
)
* Stephen A. Kaplan )
- ----------------------- Director ) June 29, 1998
Stephen A. Kaplan )
)
)
* John I. Leahy )
- ----------------------- Director ) June 29, 1998
John I. Leahy )
/s/ J. Mitchell Dolloff
*By: --------------------------------------
J. Mitchell Dolloff, attorney-in-fact
for each of the persons indicated
<PAGE>
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.
-------------------------
EXHIBITS
-------------------------
<PAGE>
EXHIBIT INDEX
Exhibit Exhibit
Number Description
- ------- -----------
4(a) * Acorn Products, Inc. 1997 Nonemployee Director Stock Incentive
Plan
4(b) Amended and Restated Certificate of Incorporation of Acorn
Products, Inc. (Previously filed as Exhibit 3.1 to
Registration Statement on Form S-1 (Registration No.
333-25325), and incorporated herein by reference).
4(c) Amended and Restated Bylaws of Acorn Products, Inc.
(Previously filed as Exhibit 3.2 to Registration Statement
on Form S-1 (Registration No. 333-25325), and incorporated
herein by reference).
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur (included in Exhibit 5
filed herewith).
23(b) * Consent of Ernst & Young LLP.
24 * Power of Attorney.
- -------------------------
* Filed with this Registration Statement
<PAGE>
ACORN PRODUCTS, INC.
1997 NONEMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
1. ESTABLISHMENT AND PURPOSE OF THE PLAN. This 1997 Nonemployee
Director Stock Incentive Plan (the "Plan") is established by Acorn Products,
Inc., a Delaware corporation (the "Company"), as of December 9, 1997. The Plan
is designed to enable the Company to attract and retain persons to serve as
nonemployee directors of the Company, UnionTools, Inc., a Delaware corporation
("UnionTools"), or the Company's other direct and indirect subsidiaries. The
Plan provides for the grant of options ("Options") that do not qualify as
incentive stock options under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"), for the grant of stock appreciation rights ("Stock
Appreciation Rights") and for the sale or grant of restricted stock ("Restricted
Stock").
2. STOCK SUBJECT TO THE PLAN. The maximum number of shares of stock
that may be subject to Options or Stock Appreciation Rights granted hereunder
and the number of shares of stock that may be sold as Restricted Stock
hereunder, shall not in the aggregate exceed 25,000 shares of common stock,
$0.001 par value (the "Shares," and individually, a "Share"), of the Company,
subject to adjustment under Section 11 hereof. Anything contained herein to the
contrary notwithstanding, the aggregate number of Shares with respect to which
Options or stock appreciation rights may be granted during any calendar year to
any individual shall be limited to 25,000. The Shares that may be subject to
Options granted under the Plan, and Restricted Stock sold or granted under the
Plan, may be authorized and unissued Shares or Shares reacquired by the Company
and held as treasury stock.
Shares that are subject to the unexercised portions of any Options that
expire, terminate or are canceled, and Shares that are not required to satisfy
the exercise of any Stock Appreciation Rights that expire, terminate or are
canceled, and Shares of Restricted Stock that are reacquired by the Company
pursuant to the restrictions thereon, may again become available for the grant
of Options or Stock Appreciation Rights and the sale or grant of Restricted
Stock under the Plan. If a Stock Appreciation Right is exercised, any Option or
portion thereof that is surrendered in connection with such exercise shall
terminate and the Shares theretofore subject to the Option or portion thereof
shall not be available for further use under the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by
the Management Development and Compensation Committee (the "Committee")
consisting of not less than two members appointed by the Board of Directors (the
"Board") of the Company. If no persons are designated by the Board to serve on
the Committee, the Plan shall be administered by the Board and all references
herein to the Committee shall refer to the Board. From time to time, the Board
shall have the discretion to add, remove or replace members of the Committee and
shall have the sole authority to fill vacancies on the Committee. All actions of
the Committee shall comply with the provisions of Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Section 162(m) of the
Code.
All actions of the Committee shall be authorized by a majority vote
thereof at a duly called meeting. The Committee shall have the sole authority,
in its absolute discretion, to adopt, amend, and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan, to construe and interpret the Plan, the rules and regulations, and the
agreements and other instruments evidencing Options and Stock Appreciation
Rights granted and Restricted Stock sold or granted under the Plan and to make
all other determinations deemed necessary or advisable for the administration of
1
<PAGE>
the Plan. All decisions, determinations, and interpretations of the Committee
shall be final and conclusive upon the Eligible Directors, as hereinafter
defined. Notwithstanding the foregoing, any dispute arising under any Agreement
(as defined below) shall be resolved pursuant to the dispute resolution
mechanism (if any) set forth in such Agreement.
Subject to the express provisions of the Plan, the Committee shall
determine the number of Shares subject to grants or sales and the terms thereof,
including the provisions relating to the exercisability of Options and Stock
Appreciation Rights, lapse and non-lapse restrictions upon the Shares obtained
or obtainable under the Plan and the termination and/or forfeiture of Options
and Stock Appreciation Rights and Restricted Stock under the Plan. The terms
upon which Options and Stock Appreciation Rights are granted and Restricted
Stock is sold or granted shall be evidenced by a written agreement executed by
the Company and the Participant (as defined below) to whom such Options, Stock
Acquisition Rights and Restricted Stock are sold or granted (the "Agreement").
4. ELIGIBILITY. Persons who shall be eligible for grants of Options
or Stock Appreciation Rights or sales or grants of Restricted Stock hereunder
("Eligible Directors") shall be directors of the Company who are not employees
of the Company, UnionTools or the Company's other direct or indirect
subsidiaries ("Participant").
5. TERMS AND CONDITIONS OF OPTIONS. No Option shall be granted for
a term of more than ten years and thirty days. Options may, in the discretion of
the Committee, be granted with associated Stock Appreciation Rights or be
amended so as to provide for associated Stock Appreciation Rights. The Agreement
may contain such other terms, provisions and conditions as may be determined by
the Committee as long as such terms, conditions and provisions are not
inconsistent with the Plan.
6. EXERCISE PRICE OF OPTIONS. The exercise price per share for each
Option granted hereunder shall be set forth in the Agreement.
Payment for Shares purchased upon exercise of any Option granted
hereunder shall be in cash at the time of exercise, except that, if either
the Agreement so provides or the Committee so permits, and if the Company is
not then prohibited from purchasing or acquiring Shares, such payment may be
made in whole or in part with Shares owned for more than six months. The
Committee also may on an individual basis permit payment or agree to permit
payment by such other alternative means as may be lawful, including by
delivery of an executed exercise notice together with irrevocable
instructions to a broker promptly to deliver to the Company the amount of
sale or loan proceeds required to pay the exercise price.
7. DETERMINATION OF FAIR MARKET VALUE. The Fair Market Value of a
Share for the purposes of the Plan shall mean the average of the high and low
sale prices of a Share on the date such determination is required herein, or if
there were no sales on such date, the average of the closing bid and asked
prices, as reported on the principal United States securities exchange on which
the Shares are listed or, in the absence of such listing, on the Nasdaq National
Market or, if Shares are not at the time listed on a national securities
exchange or traded on the Nasdaq National Market, the value of a Share on such
date as determined in good faith by the Committee.
8. NON-TRANSFERABILITY. Except to the extent provided otherwise in
the Agreement, any Option granted under the Plan shall by its terms be
nontransferable by the Participant other than by will
2
<PAGE>
or the laws of descent and distribution (in which case such descendant or
beneficiary shall be subject to all terms of the Plan applicable to
Participants) and is exercisable during the Participant's lifetime only by the
Participant or by the Participant's guardian or legal representative.
9. STOCK APPRECIATION RIGHTS. The Committee may, under such terms
and conditions as it deems appropriate, grant to any Eligible Director selected
by the Committee, Stock Appreciation Rights, which may or may not be associated
with Options. Upon exercise of a Stock Appreciation Right, the Participant shall
be entitled to receive payment of an amount equal to the excess of the Fair
Market Value of the underlying Shares on the date of exercise over the exercise
price of the Stock Appreciation Rights. Such payment may be made in additional
Shares valued at their Fair Market Value on the date of exercise or in cash, or
partly in Shares and partly in cash, as the Committee may designate. The
Committee may require that any Stock Appreciation Right shall be subject to the
condition that the Committee may at any time, in its absolute discretion, not
allow the exercise of such Stock Appreciation Right. The Committee may further
impose such conditions on the exercise of Stock Appreciation Rights as may be
necessary or desirable to comply with Rule 16b-3 under the Exchange Act.
10. RESTRICTED STOCK. The Committee may sell or grant Restricted
Stock under the Plan (either independently or in connection with the exercise of
options or Stock Appreciation Rights under the Plan) to Eligible Directors
selected by the Committee. The Committee shall in each case determine the number
of Shares of Restricted Stock to be sold or granted, the price at which such
Shares are to be sold, if applicable, and the terms or duration of the
restrictions to be imposed upon those Shares.
11. ADJUSTMENTS. If at any time the class of Shares subject to the
Plan is changed into or exchanged for a different number or kind of shares or
securities, as the result of any one or more reorganizations, recapitalizations,
stock splits, reverse stock splits, stock dividends or similar events, or in the
event of a rights offering to purchase Shares at a price substantially below
Fair Market Value, an appropriate adjustment consistent with such change,
exchange or offering shall be made in the number, exercise or sale price and/or
type of shares or securities for which Options or Stock Appreciation Rights may
thereafter be granted and Restricted Stock may thereafter be sold or granted
under the Plan in such manner as the Committee may deem equitable to prevent
substantial dilution or enlargement of the rights granted to, or available for,
participants in the Plan. Any such adjustment in outstanding Options or in
outstanding rights to purchase Restricted Stock shall be made without changing
the aggregate exercise price applicable to the unexercised portions of such
Options or the aggregate purchase price of such Restricted Stock, as the case
may be.
12. CHANGE OF CONTROL. Notwithstanding any provision of this Plan to
the contrary, in the event of a Change of Control (as defined below), all
Options and Stock Appreciation Rights that have been granted by the Board as of
the date thereof shall vest and become exercisable, as the case may be,
immediately prior to the effective time of any Change of Control and all
conditions to exercise thereof shall be deemed to have been met.
For purposes of this Section 12, the following terms shall have the
following meanings:
"Affiliate" of any specified Person (as defined in Section 13(d) of the
Exchange Act) shall mean (i) any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with
such specified Person or (ii) any Person who is a director or officer (a) of
such
3
<PAGE>
Person, (b) of any subsidiary of such Person or (c) of any Person described in
clause (i) above. For purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meaning correlative to the foregoing.
"Change of Control" shall mean: (i) the acquisition by any Person (as
defined in Section 13(d) of the Exchange Act) other than TCW or Oaktree, of
beneficial ownership (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except such Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time) of securities of the
Company (a) having 25% or more of the total voting power of the then outstanding
voting securities of the Company and (b) having more voting power than the
securities of the Company beneficially owned by Oaktree; (ii) during any twelve
month period, a change in the Board occurs such that Incumbent Members do not
constitute a majority of the Board; (iii) a sale of all or substantially all of
the assets of the Company or UnionTools; or (iv) the consummation of a merger or
consolidation of the Company with any other Person, provided, however, that no
Change of Control shall have occurred pursuant to this clause (iv) if (A) after
such merger or consolidation the voting securities of the Company prior to such
merger or consolidation continue to represent more than 50% of the combined
voting power of such Person or (B) if such merger or consolidation does not
result in a material change in the beneficial ownership of the Company's voting
securities.
"Incumbent Members" shall mean the members of the Board on the date
immediately preceding the commencement of a twelve-month period, provided that
any person becoming a Director during such twelve-month period whose election or
nomination for election was approved by a majority of the Directors who, on the
date of such election or nomination for election, comprised the Incumbent
Members shall be considered one of the Incumbent Members in respect of such
twelve-month period.
"Oaktree" shall mean Oaktree Capital Management, LLC and its Affiliates,
including any partnerships, separate accounts or other entities managed by
Oaktree.
"TCW" shall mean: TCW Special Credits Plus Fund; TCW Special Credits
Fund III; TCW Special Credits Fund IIIb; TCW Special Credits Fund IV; TCW
Special Credits Trust; TCW Special Credits Trust IIIb; TCW Special Credits Trust
IV; TCW Special Credits Trust IVa; TCW Special Credits, as investment manager of
Delaware State Employees' Retirement Fund, Weyerhauser Company Pension Trust and
The Common Fund for Bond Investments; and any of their respective
Affiliates.
13. INVESTMENT REPRESENTATION. Each Agreement may provide that, upon
demand by the Committee for such a representation, the Optionee shall deliver to
the Committee at the time of any exercise of an Option a written representation
that the Shares to be acquired upon such exercise are to be acquired for
investment and not for resale or with a view to the distribution thereof. Upon
such demand, delivery of such representation prior to the delivery of any Shares
issued upon exercise of an Option shall be a condition precedent to the right of
the Optionee or such other person to purchase any Shares.
4
<PAGE>
14. DURATION OF THE PLAN. Options and Stock Appreciation Rights may
not be granted and Restricted Stock may not be sold or granted under the Plan
after December 9, 2007.
15. AMENDMENT AND TERMINATION OF THE PLAN. The Board may at any time
alter, amend, suspend or terminate the Plan. The Committee may amend the Plan or
any Agreement issued hereunder to the extent necessary for any Option or Stock
Appreciation Right granted or Restricted Stock sold or granted under the Plan to
comply with applicable tax or securities laws.
No Option or Stock Appreciation Right may be granted or Restricted Stock
sold or granted during any suspension or after the termination of the Plan. No
amendment, suspension or termination of the Plan or of any Agreement issued
hereunder shall, without the consent of the affected holder of such Option or
Stock Appreciation Right or Restricted Stock, alter or impair any rights or
obligations in any Option or Stock Appreciation Right or Restricted Stock
theretofore granted or sold to such holder under the Plan.
16. NATURE OF THE PLAN. The grant, exercise or sale of securities
under the Plan is intended to qualify for the exemption from short swing profits
liability under Section 16(b) of the Exchange Act, provided by Rule 16b-3
promulgated thereunder, as such Rule is now in effect or hereafter amended.
17. CANCELLATION OF OPTIONS. Any Option granted under the Plan may
be canceled at any time with the consent of the holder and a new Option may be
granted to such holder in lieu thereof.
18. WITHHOLDING TAXES. Whenever Shares are to be issued with respect
to the exercise of Options or amounts are to be paid or income earned with
respect to Stock Appreciation Rights or Restricted Stock under the Plan, the
Committee in its discretion may require the Participant to remit to the Company,
prior to the delivery of any certificate or certificates for such Shares or the
payment of any such amounts, all or any part of the amount determined in the
Committee's discretion to be sufficient to satisfy federal, state and local
withholding tax obligations (the "Withholding Obligation") that the Company or
its counsel determines may arise with respect to such exercise, issuance or
payment. Pursuant to a procedure established by the Committee, the Participant
may (i) request the Company to withhold delivery of a sufficient number of
Shares or a sufficient amount of the Participant's compensation or (ii) deliver
a sufficient number of previously-issued Shares, to satisfy the Withholding
Obligation.
19. NO RIGHTS AS STOCKHOLDER. No Participant shall have any rights
as a Stockholder with respect to any Shares subject to his or her Option or
Stock Appreciation Right prior to the date of issuance to him or her of a
certificate or certificate for such Shares.
20. COMPLIANCE WITH GOVERNMENT LAW AND REGULATIONS. The Plan, the
grant and exercise of Options and Stock Appreciation Rights, and the grant and
sale of Restricted Stock thereunder, and the obligation of the Company to sell
and deliver Shares under such Options and Stock Appreciation Rights, shall be
subject to all applicable laws, rules and regulations and to such approvals by
any government or regulatory agency that may be required. The Company shall not
be required to issue or deliver any certificates for Shares prior to (i) the
listing of such Shares on any stock exchange on which Shares may then be listed
and (ii) the completion of any registration or qualification of such
5
<PAGE>
Shares under any state or federal law, or any ruling or regulation of any
governmental body which the Company shall, in its sole discretion, determine to
be necessary or advisable.
6
<PAGE>
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
Telephone: (614) 227-2000
Fax: (614) 227-2100
July 9, 1998
Acorn Products, Inc.
500 Dublin Avenue
Columbus, Ohio 43215
Re: Registration Statement on Form S-8
Acorn Products, Inc. 1997 Nonemployee Director Stock Incentive
Plan (the "Plan")
Ladies and Gentlemen:
We have acted as counsel for Acorn Products, Inc., a Delaware
corporation ("Acorn"), in connection with the Registration Statement on Form S-8
(the "Registration Statement"), filed by Acorn with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
registration of 25,000 shares of Acorn Common Stock, $.001 par value (the
"Shares"), to be issued under the Plan.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of the registrant as we have deemed
necessary.
Based on the foregoing, we are of the opinion that the Shares will, when
issued and paid for in accordance with the provisions of the Plan, be legally
issued, fully paid and nonassessable, and entitled to the benefits of the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Acorn Products, Inc. 1997 Nonemployee
Director Stock Incentive Plan of our report dated September 12, 1997, with
respect to the consolidated financial statements and schedules of Acorn
Products, Inc. included in its Annual Report (Form 10-K) for the year ended
August 1, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Columbus, Ohio
July 6, 1998
<PAGE>
POWER OF ATTORNEY
Each of the undersigned officers and/or directors of Acorn Products,
Inc., a Delaware corporation (the "Company"), hereby appoints Gabe Mihaly,
Stephen M. Kasprisin, and J. Mitchell Dolloff as his true and lawful attorneys-
in-fact, or any of them individually with power to act without the other, as his
true and lawful attorney-in-fact, in his name and on his behalf, and in any and
all capacities stated below, to sign and to cause to be filed with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 to register under the Securities Act of 1933, as amended, 25,000 shares of
Common Stock, $.001 par value, to be sold and distributed by the Company
pursuant to the Company's 1997 Nonemployee Director Stock Incentive Plan (the
"Plan") and such, and any and all amendments thereto, hereby granting unto said
attorneys, and to each of them, full power and authority to do and perform in
the name and on behalf of the undersigned, in any and all such capacities, every
act and thing whatsoever necessary to be done in and about the premises as fully
as each of the undersigned could or might do in person, hereby granting to each
such attorney full power of substitution and revocation, and hereby ratifying
all that any such attorney or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney
in counterparts if necessary, effective as of February 20, 1998.
SIGNATURE TITLE
/s/ Gabe Mihaly President, Chief Executive Officer
- --------------------------------- and a Director
Gabe Mihaly (Principal Executive Officer)
/s/ Stephen M. Kasprisin Vice President and Chief Financial
- --------------------------------- Officer
Stephen M. Kasprisin (Principal Accounting and Financial
Officer)
/s/ Conor D. Reilly Chairman of the Board of Directors
- ---------------------------------
Conor D. Reilly
/s/ William W. Abbott Director
- ---------------------------------
William W. Abbott
/s/ Matthew S. Barrett Director
- ---------------------------------
Matthew S. Barrett
/s/ Stephen A. Kaplan Director
- ---------------------------------
Stephen A. Kaplan
/s/ John I. Leahy Director
- ---------------------------------
John I. Leahy
