As filed with the Securities and Exchange Commission on September 15, 1999
Registration No. 333-___
___________________________________________________________________________
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ACME ELECTRIC CORPORATION
(Exact name of Registrant as specified in its charter)
New York 16-0324980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 Quaker State Road
East Aurora, New York 14052-2199
(Address of Principal Executive Office) (Zip Code)
ACME ELECTRIC CORPORATION 1998 STOCK OPTION PLAN
(Full title of the plan)
Michael A. Simon, Controller
ACME ELECTRIC CORPORATION
400 Quaker State Road
East Aurora, New York 14052-2199
(Name and address of agent for service)
716-655-3800
(Telephone number, including area code, of agent for service)
Copy to: Phillips, Lytle, Hitchcock, Blaine & Huber LLP
3400 Marine Midland Center
Buffalo, New York 14203
Attention: John B. Drenning, Esq.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Max. Max. Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered (1) share (2) price (2) fee (3)
__________ ______________ _________ _________ ____________
Common Stock
$1 par
value(4) 500,000 shares $6.344125 $3,172,062.50 $881.84
(1) The number of shares are subject to adjustment in accordance with
the anti-dilution provisions of the Plans. Accordingly, this Registration
Statement also covers an indeterminable number of shares which may be
issuable in connection with such provisions.
<PAGE> - 1 -
(2) Pursuant to Rule 457(c), estimated solely for the
purpose of determining the registration fee, as follows: (i) as
to 101,000 shares now under option, on the basis of the aggregate
price at which such shares may be purchased by the optionees, and
(ii) as to the remaining 399,000 shares for which options have
not yet been granted, on the basis of the average of the high and
low prices of the Common Stock on the New York Stock Exchange on
September 10, 1999.
(3) This registration statement, pursuant to Instruction E
to Form S-8, relates to 231,000 shares previously registered on
Form S-8 (No. 33-79488 and No. 33-59523) in connection with a
predecessor plan, with respect to which a registration fee of
$1,679 has been paid.
(4) This Registration Statement also pertains to rights to
purchase shares of Common Stock. One-half right is attached to
and trades with each share of Common Stock. Until the occurrence
of certain events, the rights are not exercisable and will not be
evidenced or transferred apart from the Common Stock.
EXPLANATORY STATEMENT
A total of 441,220 shares of Common Stock of Acme Electric
Corporation (the "Company") were registered by Registration
Statements on Form S-8, File Nos. 33-79488 and 33-59523 in
connection with the Company's 1989 Incentive Stock Option Plan
(the "1989 Plan"). On October 30, 1998 the shareholders of the
Company approved the Acme Electric Corporation 1998 Stock Option
Plan (the "1998 Plan") and thereupon the 1989 Plan terminated.
Two Hundred Thirty One Thousand (231,000) authorized but not
granted shares of Common Stock of the Company which were
registered in connection with the 1989 Plan will not be issued
under the 1989 Plan and, pursuant to Instruction E to Form S-8
and the telephonic interpretations of the Securities and Exchange
Commission (Interpretation No. 86 of Section 6. Securities Act
Forms of the Division of Corporation Finance's Manual of Publicly
Available Telephone Interpretations - July 1997), are carried
forward to, this Registration Statement on Form S-8 in connection
with the 1998 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions for Form S-8, the documents
containing the information specified in Items 1 and 2 of Part I
of Form S-8 are not being filed with the Securities and Exchange
Commission as part of this Registration Statement, but will be
sent or given to (optionees) as specified by Rule 428(b)(1).
<PAGE> - 2 -
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 in this Registration
Statement.
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1998.
(b) The Company's Quarterly Reports on Form 10-Q for
the periods ended October 3, 1998, January 2, 1999 and April 3,
1999.
(c) The description of the Common Stock contained in
the Company's Registration Statement filed under Section 12 of
the Securities Exchange Act of 1934, dated December 1, 1981 and
the description of the Common Stock purchase rights contained in
the Company's Registration Statement under Section 12 of the
Securities Exchange Act of 1934 filed on November 15, 1993.
In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the filing
of a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold
or which deregisters all 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 documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
John B. Drenning, Secretary of the Company, is a partner in
the law firm of Phillips, Lytle, Hitchcock, Blaine & Huber LLP,
which has rendered the legality opinion included in this
Registration Statement as Exhibit 5.
Item 6. Indemnification of Directors and Officers
The New York Business Corporation Law ("NYBCL") grants
corporations broad powers to indemnify their present and former
directors and officers against judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with
threatened, pending or completed actions, suits or proceedings to
which they are parties or are threatened to be made parties by
reason of being or having been such directors or officers,
subject to specified conditions and exclusions; gives a director
<PAGE> - 3 -
or officer who successfully defends an action the right to be so
indemnified; and permits a corporation to buy directors' and
officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be
entitled under any by-laws, agreement, vote of shareholders or
otherwise.
The Certificate of Incorporation and the By-Laws of the
registrant provide for indemnification of directors and officers
of the registrant to the fullest extent permitted by the NYBCL
against expenses, liability and loss incurred by them in
connection with any action, suit or proceeding to which they are,
or are threatened to be, made parties by reason of their
relationship with the registrant. In addition, the registrant
has entered into indemnification agreements with each of its
directors, providing for substantial indemnification rights and a
mechanism for administering such rights.
As permitted by the NYBCL, the registrant's Certificate
of Incorporation provides that a director of the registrant shall
not be liable for any breach of duty as a director, except to the
extent that a judgment or other final adjudication adverse to him
establishes that (1) his acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law,
(2) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled or (3) his acts
violated Section 719 of the NYBCL.
In addition, the directors and officers of the
registrant are covered by insurance policies indemnifying them
against certain liabilities, including certain liabilities
arising under the Securities Act of 1933, which might be incurred
by them in such capacities.
Item 7. Exemption from Registration.
Not applicable.
Item 8. Exhibits
See the Exhibit Index, below.
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 of 1933;
<PAGE> - 4 -
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
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 the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (ii) do not
apply if the registration statement is on Form S-3 or Form S-8,
and 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the
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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed
<PAGE> - 5 -
in the 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 Act and will be
governed by the final adjudication of such issue.
<PAGE> - 6 -
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all 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 East Aurora, New York on August 23,
1999.
ACME ELECTRIC CORPORATION
By:/s/Robert J. McKenna
______________________________
ROBERT J. McKENNA
Chairman, President and
Chief Executive Officer
<PAGE> - 7 -
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints ROBERT J.
McKENNA, as his true and lawful attorney-in-fact, with full power
of substitution, for him and in his name, place and stead, in any
and all capacities, to sign any or all amendments or
post-effective amendments to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission
under the Securities Act of 1933, granting unto said
attorney-in-fact full power and authority to do and perform each
and every act and thing requisite and 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 said attorney-in-fact, 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 and on the date indicated.
SIGNATURE CAPACITY DATE
_________ ________ ____
/s/Robert J. McKenna Chairman, President and Chief August 23, 1999
_____________________ Executive Officer (Principal
Robert J. McKenna Executive Officer) and Director
/s/Michael A. Simon Controller (Principal Financial August 24, 1999
_____________________ Officer and Principal
Michael A. Simon Accounting Officer)
/s/Robert D. Batting Director August 23, 1999
_____________________
Robert D. Batting
/s/Robert T. Brady Director August 23, 1999
_____________________
Robert T. Brady
/s/Randall L. Clark Director August 23, 1999
_____________________
Randall L. Clark
/s/Terry M. Manon Director August 23, 1999
_____________________
Terry M. Manon
<PAGE> - 8 -
INDEX TO EXHIBITS
Exhibit Page Number
_______ ___________
5 - Opinion of Phillips, Lytle,
Hitchcock, Blaine & Huber LLP as to
the legality of the securities
registered.
23(a) - Consent of PricewaterhouseCoopers LLP
23(b) - Consent of Phillips, Lytle, Hitchcock,
Blaine & Huber LLP (included in Exhibit 5)
24 - Power of Attorney (included with
signature page)
<PAGE> - 9 -
EXHIBITS 5 AND 23(b)
____________________
OPINION OF PHILLIPS, LYTLE, HITCHCOCK,
BLAINE & HUBER LLP AS TO THE LEGALITY
OF THE SECURITIES REGISTERED
<PAGE> - 10 -
September 15, 1999
Acme Electric Corporation
400 Quaker Road
East Aurora, New York 14052-2199
Re: Acme Electric Corporation - Registration Statement
on Form S-8
__________________________________________________
Gentlemen:
This opinion is given in connection with a Registration
Statement (Form S-8) being filed by Acme Electric Corporation
(the "Company") with the Securities and Exchange Commission
relating to 500,000 shares of Common Stock, $1 par value ("Common
Stock") to be issued pursuant to options exercised under the Acme
Electric Corporation 1998 Stock Option Plan (the "Plan"). We
have examined and are familiar with the Company's Certificate of
Incorporation, By-laws, resolutions of its directors and other
documents and corporate records and proceedings relating to the
organization of the Company, proposed issuance of securities and
adoption of the Plan by the Company. We have also examined such
other documents and proceedings that we have considered necessary
for the purpose of this opinion.
Based upon such examination, we are of the opinion
that:
1. The Company has been duly organized and is a
validly existing corporation under the laws of the
State of New York.
2. The 500,000 shares of Common Stock which may be
issued by the Company have been duly authorized
and, when issued in accordance with the terms of
the Registration Statement and the Plan, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an
Exhibit to the Registration Statement.
Very truly yours,
PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
<PAGE> - 11 -
EXHIBIT 23(a)
_____________
CONSENT OF PricewaterhouseCoopers LLP
INDEPENDENT PUBLIC ACCOUNTANTS
<PAGE> - 12 -
CONSENT OF INDEPENDENT ACCOUNTANTS
__________________________________
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated August 5,
1998 relating to the financial statements, which appear in the
1998 Annual Report to Shareholders of Acme Electric Corporation,
which is incorporated by reference in Acme Electric Corporation's
Annual Report on Form 10-K for the year ended June 30, 1998. We
also consent to the incorporation by reference of our report
dated August 5, 1998 relating to the financial statement/
schedules, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
______________________________
PRICEWATERHOUSECOOPERS LLP
Buffalo, New York
September 15, 1999
<PAGE> - 13 -
