The Exhibit Index begins on page .
As filed with the Securities and Exchange Commission on May ,
1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
===========================================
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
===========================================
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 No.)
75 Kings Highway Cutoff 06430
- ----------------------- -----
Fairfield, CT (Zip Code)
- -------------
(Addresses of principal
executive offices)
ACME UNITED CORPORATION AMENDED AND RESTATED STOCK OPTION PLAN
==============================================================
(Full title of plan)
(Name, address and telephone
number of agent for service) (Copy to:)
Cheryl L. Kendall Bruce E. Dillingham, Esquire
75 Kings Highway Cutoff Marsh, Day & Calhoun
Fairfield, CT 06430 2507 Post Road
(203) 332-7330 Southport, CT 06490
(203) 259-8993
CALCULATION OF REGISTRATION FEE
=================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
Common Stock
(par value 60,000 $5.875 $352,500 $106.80
$2.50 per shares (1) (1) (1)
share)
(1) Pursuant to Rule 457(h)(1), the proposed maximum offering
price per share, proposed maximum aggregate offering price and the
amount of the registration fee are based on the average of the
daily high and low prices of Acme United Corporation Common Stock
on the American Stock Exchange on May 5, 1997 (i.e., $5.875 per
share).
<PAGE 2>
PART I. Information Required in the Section 10(a) Prospectus
ITEM 1. Plan Information*
ITEM 2. Registrant Information and Employee Plan Annual
Information*
PART II. Information Required in the Registration Statement
ITEM 3. Incorporation of Documents by Reference
The following documents have been filed by Acme United Corporation
(the "Registrant") with the Securities and Exchange Commission and
are incorporated herein by reference:
1. Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934 (the "Exchange Act").
2. 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 the Form 10K referred to above.
3. The description of Registrant's Common Stock contained in
Registrant's S- 1 Registration Statement No. 230682 filed
with the Commission on November 7, 1968 and amended by
Substantive Amendment No. 1 on December 31, 1968 and by
Substantive Amendment No. 2 on January 31, 1969.
In addition, all documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act
of 1934 subsequent to the filing 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 de-registers
all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such prior
statement. The documents required to be so modified or superseded
shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
*Information required by Part I to be contained in the Section
10(a) prospectus is omitted from the registration statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
<PAGE 3>
ITEM 4. Description of Securities
A description of the Registrant's Common Stock has been
incorporated by reference into this Registration Statement. See
Item 3, above.
ITEM 5. Interests of Named Experts and Counsel
None
ITEM 6. Indemnification of Directors and Officers
Connecticut General Statutes Sections 33-771 through 33-778 provide
for mandatory, permissive and court-ordered indemnification of
directors who are parties to a proceeding. For purposes of these
indemnification statutes a "proceeding" is defined as any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and
whether formal or informal.
A. Unless limited by its certificate of incorporation, a
corporation shall indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director of the
corporation against reasonable expenses incurred by him in
connection with the proceeding. The Registrant has no provision in
its certificate of incorporation limiting the effect of this
mandatory indemnification.
B. A corporation may indemnify a person who is made a party to a
proceeding because he is or was a director if: 1) he conducted
himself in good faith; and 2) he reasonably believed (A) in the
case of conduct in his official capacity with the corporation, that
his conduct was in its best interests, and (B) in all other cases,
that his conduct was at least not opposed to its best interests;
and (3) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
A corporation is authorized to indemnify a director in a specific
case only after a determination has been made that indemnification
of the director is permissible in the circumstances because he has
met this standard of conduct set forth in the previous paragraph.
This determination must be made: 1) by the board of directors by
majority vote of a quorum consisting of directors not at the time
parties to the proceeding; 2) if such a quorum cannot be obtained,
by majority vote of a committee duly designated by the board of
directors, in which designation directors who are parties may
participate, consisting solely of two or more directors not at the
time parties to the proceeding; 3) by special legal counsel (a)
selected by the board of directors or its committee, or (b) if a
quorum of directors cannot be obtained and a committee cannot be
designated as provided above, selected by majority vote of the full
board of directors, in which selection directors who are parties
may participate; or 4) by the shareholders, but shares owned or
voted under the control of directors who are at the time parties to
the proceeding may not be voted on the determination.
<PAGE 4>
Authorization of indemnification and evaluation as to
reasonableness of expenses must be made in the same manner as the
determination that indemnification is permissible, except that if
the determination is made by special legal counsel, these matters
are to be determined by those entitled to select such counsel.
A corporation may not, however, indemnify a director in connection
with a proceeding by or in the right of the corporation in which
the director was adjudged liable to the corporation or in
connection with any other proceeding charging improper personal
benefit to him, whether or not involving his official capacity, in
which he was adjudged liable on the basis that personal benefit was
improperly received by him. Any indemnification permitted in
connection with a proceeding by or in the right of the corporation
is limited to reasonable expenses incurred by the director in
connection with the proceeding.
A corporation may advance reasonable expenses incurred by a
director in connection with a proceeding if: (1) the director
furnishes the corporation with a written affirmation of his good
faith belief that he has met the standard of conduct for receiving
indemnification; (2) the director furnishes the corporation with a
written undertaking to repay any advances if it is ultimately
determined that he did not meet the standard of conduct; and (3)
the corporation determines that the facts then known do not
preclude indemnification. The director's obligation to repay must
be a general unlimited obligation of the director but it need not
be secured and may be accepted without any reference to financial
ability.
C. Unless a corporation's certificate of incorporation provides
otherwise, a director of the corporation who is a party to a
proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the
court considers necessary may order indemnification if it
determines: (1) The director is entitled to mandatory
indemnification; or (2) the director is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not he met the standard of conduct for
permissive indemnification or was adjudged liable to the
corporation in connection with a proceeding by or in the right of
the corporation or in connection with any other proceeding charging
improper personal benefit to him, whether or not involving his
official capacity, in which he was adjudged liable on the basis
that personal benefit was improperly received by him, but if he was
adjudged so liable his indemnification is limited to reasonable
expenses incurred. The Registrant has no provision in its
certificate of incorporation limiting the effect of this provision.
D. Officers who are not directors of the corporation are entitled
to the same indemnification as directors. In addition, a
corporation may indemnify and advance expenses to an officer,
employee or agent who is not a director to the extent, consistent
with public policy, that is permitted by its certificate of
incorporation, by-laws, general or specific action of its board of
directors, or contract.
<PAGE 5>
E. The corporation laws of Connecticut which provide, among other
things, for the indemnification of directors and officers were
substantially revised effective January 1, 1997. Indemnification
under the prior law was always mandatory when the conditions for
providing indemnification were met. In deference to the prior law,
the current law provides that any corporation incorporated prior to
January 1, 1997, shall, except to the extent that the certificate
of incorporation expressly provides otherwise, provide its
directors and officers with the full amount of indemnification that
the corporation is permitted to provide to a director pursuant to
the new law subject only to a determination that indemnification is
permissible, as described above. The Registrant's certificate of
incorporation does not contain any provision that would alter the
scope of indemnification that directors or officers of corporations
formed prior to January 1, 1997, are afforded under the new law.
ITEM 7. Exemption from Registration Claimed
Not Applicable.
ITEM 8. Exhibits
4(a) Acme United Corporation Non-Salaried Director
Stock Option Plan
4(b) Forms of Stock Option Agreements pursuant to the
Acme United Corporation Non-Salaried Director
Stock Option Plan
5 Opinion of Counsel Regarding the Legality of the
Shares of Common Stock being Registered
24(a) Consent of Counsel (included in Exhibit 5)
24(b) Consent of Independent Accountants
ITEM 9. Undertakings
A. Rule 415 Offering. 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 6>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or most recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set
forth in the 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 law or high end 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% 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 the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and 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 by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in this 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. Filings Incorporating Subsequent Exchange Act Documents by
Reference. 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 any employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
<PAGE 7>
C. Securities and Exchange Commission Position on Indemnification.
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 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.
SIGNATURES
Pursuant to the requirement 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 this 6th day of May, 1997.
Acme United Corporation
By:/s/ Walter C. Johnsen
----------------------------
Walter C. Johnsen
President and Chief Executive Officer
[Principal Executive Officer]
<PAGE 8>
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 Title Date
- --------- ----- ----
/s/ Walter C. Johnsen President, Chief Executive May 6, 1997
Walter C. Johnsen Officer and Director
/s/ Gary D. Penisten Chairman of the Board May 6, 1997
Gary D. Penisten and Director
/s/ Cheryl L. Kendall Vice President, Treasurer, May 6, 1997
Cheryl L. Kendall Secretary and Principal
Financial Officer
/s/ Richard L. Windt Controller and Principal May 6, 1997
Richard L. Windt Accounting Officer
/s/ Newman M. Marsilius Director May 6, 1997
Newman M. Marsilius
/s/ Wayne R. Moore Director May 6, 1997
Wayne R. Moore
/s/ George R. Dunbar Director May 6, 1997
George R. Dunbar
/s/ David W. Clark Director May 6, 1997
David W. Clark
/s/ Henry C. Wheeler Director May 6, 1997
Henry C. Wheeler
/s/ James L.L. Tullis Director May 6, 1997
James L.L. Tullis
<PAGE 9>
INDEX OF EXHIBITS ACCOMPANYING THE S-8 REGISTRATION STATEMENT
Exhibit Description Sequential
Page
Number
4(a) Acme United Corporation Non-Salaried Director Stock
Option Plan
4(b) Form of Stock Option Agreements pursuant
to the Acme United Corporation Non-Salaried Director
Stock Option Plan.
5 Opinion of Marsh, Day & Calhoun Regarding
the Legality of the Shares of Common Stock
24(a) Consent of Marsh, Day & Calhoun*
24(b) Consent of Coopers & Lybrand L.L.P.
*Included in exhibit 5.
<PAGE 10>
Exhibit 4(a)
AMENDED AND RESTATED ACME UNITED CORPORATION
NON-SALARIED DIRECTOR STOCK OPTION PLAN
I. GENERAL
1.1 Purpose of the Plan
The purpose of the Acme United Corporation Non-Salaried
Director Stock Option Plan (the "Plan") is to enable Acme United
Corporation (the "Company") to attract and retain persons of
exceptional ability to serve as directors of the Company and to
align the interests of directors and shareholders in enhancing the
value of the Company's common stock (the "Common Stock").
1.2 Administration of the Plan
The Plan shall be administered by the Compensation Committee
or its successors (the "Committee") of the Company's Board of
Directors (the "Board") which shall have full and final authority
in its discretion to interpret, administer and amend the provisions
of the Plan; to adopt rules and regulations for carrying out the
Plan; to decide all questions of fact arising in the application of
the Plan; and to make all other determinations necessary or
advisable for the administration of the Plan. The Committee shall
consist of at least two persons and shall meet once each fiscal
year, and at such additional times as it may determine or as is
requested by the chief executive officer of the Company.
1.3 Eligible Participants
Commencing April 22, 1996 each member of the Board who is not
a salaried employee of the Company or any of its subsidiaries
shall be a participant (a "Participant") in the Plan.
1.4 Grants Under the Plan
Grants under the Plan shall be in the form of stock options as
described in Section II (an "Option" or "Options").
1.5 Shares
The aggregate number of shares of Common Stock, including
shares reserved for issuance pursuant to the exercise of Options,
which may be issued under the terms of the Plan, may not exceed
60,000 shares and hereby are reserved for such purpose. Whenever
any outstanding grant or portion thereof expires, is canceled or
forfeited or is otherwise terminated for any reason without having
been exercised, the Common Stock allocable to the expired,
forfeited, canceled or otherwise terminated portion of the grant
may again be the subject of further grants hereunder.
<PAGE 11>
Notwithstanding the foregoing, the number of shares of Common
Stock available for grants at any time under the Plan shall be
reduced to such lesser amount as may be required pursuant to the
methods of calculation necessary so that the exemptions provided
pursuant to Rule 16b-3 under the Securities Exchange Act of 1934 as
amended (the "Exchange Act") will continue to be available for
transactions involving all current and future grants. In addition,
during the period that any grants remain outstanding under the
Plan, the Committee may make good faith adjustments with respect to
the number of shares of Common Stock attributable to such grants
for purposes of calculating the maximum number of shares of Common
Stock available for the granting of future grants under the Plan,
provided that following such adjustments the exemptions provided
pursuant to Rule 16b-3 under the Exchange Act will continue to be
available for transactions involving all current and future grants.
1.7 Definitions
The following definitions shall apply to the Plan:
(a) "Disability" shall have the meaning provided in the
Company's applicable disability plan or, in the absence of such a
definition, when a Participant becomes totally disabled (as
determined by a physician mutually acceptable to the participant
and the Company) before termination of his or her service on the
Board if such total disability continues for more than three (3)
months.
(b) "Fair Market Value" means the average of the high and low
sales prices of the shares of Common Stock on such date on the
principal national securities exchange or automated quotation
system of a registered securities association on which such shares
of Common Stock are listed or admitted to trading. If the shares
of Common Stock on such date are not listed or admitted to trading,
the Fair Market Value shall be the value established by the Board
in good faith.
II. OPTIONS
2.1 Terms and Conditions of Options
Each Participant who is elected a director on April 28, 1997
and who has not received any prior grant under this Plan shall
receive a grant of an Option to purchase 10,000 shares of Common
Stock on April 28, 1997. If and to the extent Options granted
hereunder lapse as a result of termination or surrender, additional
Options shall be granted to any Director or Directors who are first
elected after April 28, 1997, which Options shall be in such
amounts (not to exceed 10,000 shares per Director) and shall vest
at such times as the Committee shall determine.
2.2 Nonqualified Stock Options
The terms of the Options shall, at the time of grant, provide
that the Options will not be treated as incentive stock options
within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
<PAGE 12>
2.3 Option Price
The option price per share shall be the Fair Market Value of
the Common Stock on the date the Option is granted.
2.4 Term and Exercise of Options
(a) The term of an Option shall not exceed ten (10) years from
the date of grant. Except as provided in this Section 2.4, after a
Participant ceases to serve as a director of the Company for any
reason, including, without limitation, retirement, or any other
voluntary or involuntary termination of a Participant's service as
a director (a "Termination"), the unexercisable portion of an
Option shall immediately terminate and be null and void, and the
unexercised portion of any outstanding Options held by such
Participant shall terminate and be null and void for all purposes,
after thirty (30) days (or, for any option granted prior to April
28, 1997 three (3) months) have elapsed from the date of the
Termination unless extended by the Committee, in its sole
discretion, within thirty (30) days from the date of the
Termination. Upon a Termination as a result of death or
Disability, any outstanding Options may be exercised by the
Participant or the participant's legal representative within twelve
(12) months after such death or Disability; provided, however, that
in no event shall the period extend beyond the expiration of the
option term.
(b) Options shall become exercisable in whole or in part
after one (1) year has elapsed from the date of grant for Options
granted prior to April 28, 1997. In no event, however, shall an
Option be exercised after the expiration of (10) years from the
date of grant.
(c) Options granted April 28, 1997, and later shall become
exercisable as follows:
25% - one day after date of grant
25% - one day and one year after date of grant
25% - one day and two years after date of grant
25% - one day and three years after date of grant
(d) A Participant, by written notice to the Company, may
designate one or more persons (and from time to time change such
designation) including his or her legal representative, who, by
reason of his or her death, shall acquire the right to exercise all
or a portion of the Option. If no designation is made before the
death of the Participant, the Participant's Option may be exercised
by the personal representative of the participant's estate or by a
person who acquired the right to exercise such Option by will or
the laws of descent and distribution. If the person with exercise
rights desires to exercise any portion of the Option, such person
must do so in accordance with the terms and conditions of this
Plan.
<PAGE 13>
2.5 Notice of Exercise
When exercisable pursuant to the terms of the Plan and the
governing stock option agreement, an Option shall be exercised by
the Participant as to all or part of the shares subject to the
Option by delivering written notice of exercise to the Company at
its principal business office or such other office as the Company
may from time to time direct, (a) specifying the number of shares
to be purchased, (b) accompanied by a check payable to the Company
in an amount equal to the full exercise price of the number of
shares being exercised, and (c) containing such further provisions
consistent with the provisions of the Plan as the Company may from
time to time prescribe. No Option may be exercised after the
expiration of the term specified in Section 2.4 hereof.
2.6 Limitation of Exercise Periods
The Committee may limit the time periods within which an
Option may be exercised if a limitation on exercise is deemed
necessary in order to effect compliance with applicable law.
2.7 Change in Control
Notwithstanding anything herein to the contrary, if a Change
in Control has occurred, then the Option shall immediately become
exercisable on the date such Change in Control occurred.
III. GENERAL PROVISIONS
3.1 General Restrictions
Each grant under the Plan shall be subject to the requirement
that if the Committee shall determine, at any time, that (a) the
listing, registration or qualification of the shares of Common
Stock subject or related thereto upon any securities exchange or
under any state or federal law, or (b) the consent or approval of
any government regulatory body, or (c) an agreement by the
Participant with respect to the disposition of shares of Common
Stock, is necessary or desirable as a condition of, or in
connection with, the granting or the issuance or purchase of shares
of Common Stock thereunder, such grant may not be consummated in
whole or in part unless such listing, registration, qualification,
consent, approval or agreement shall have been effected or obtained
free of any conditions not acceptable to the Committee.
3.2 Adjustments for Changes in Capitalization
In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, rights offer,
liquidation, dissolution, merger, consolidation, spin-off or sale
of assets, or any other change in or affecting the corporation
structure or capitalization of the Company, the Board shall make
such adjustments as the Committee may recommend, and as the Board
in its discretion may deem appropriate, in the number and kind of
shares authorized by the Plan, in the number, Option price or kind
of shares covered by the grants and in any outstanding grants under
the Plan in order to prevent substantial dilution or enlargement
thereof.
<PAGE 14>
3.3 Amendments
Without further approval of the shareholders, the Board may
discontinue the Plan at any time and may amend it from time to time
in such respect as the Board may deem advisable, unless shareholder
or regulatory approval is required by law or regulation, and
subject to any conditions established by the terms of such
amendment; provided, however, that the Plan may not be amended more
than once every six (6) months other than to comport with changes
in the Code, the Employee Retirement Income Security Act or the
rules thereunder.
3.4 Modification, Substitution or Cancellation of Grants
No rights or obligations under any outstanding Option may be
altered or impaired without the Participant's consent. Any grant
under the Plan may be canceled at any time with the consent of the
Participant, and a new grant may be provided to such Participant in
lieu thereof.
3.5 Shares Subject to the Plan
Shares distributed pursuant to the Plan shall be made
available from authorized but unissued shares or from shares
purchased or otherwise acquired by the Company for use in the Plan,
as shall be determined from time to time by the Committee.
3.6 Rights of a Shareholder
Participants under the Plan, unless otherwise provided by the
Plan, shall have no rights as shareholders by reason thereof unless
and until certificates for shares of Common Stock are issued to
them.
3.7 Withholding
If a Participant is to experience a taxable event in
connection with the receipt of shares of Common Stock pursuant to
an Option exercise, the Participant shall pay the amount equal to
the federal, state and local income taxes and other amounts as may
be required by law to be withheld to the Company prior to the
issuance of such shares of Common Stock.
3.8 Nonassignability
Except as expressly provided in the Plan, no grant shall be
transferable except by will, the laws of descent and distribution
or a qualified domestic relations order ("QDRO") as defined by the
Code or Title I of the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder. During the lifetime of
the Participant, except as expressly provided in the Plan, grants
under the Plan shall be exercisable only by such Participant or by
the guardian or legal representative of such Participant or
pursuant to a QDRO.
<PAGE 15>
3.9 Nonuniform Determinations
Determinations by the Committee under the Plan (including,
without limitation, determinations of the persons to receive
grants, the form, amount and timing of such grants, and the terms
and provisions of such grants and the agreements evidencing the
same) need not be uniform and may be made by it selectively among
persons who receive, or are eligible to receive, awards under the
Plan, whether or not such persons are similarly situated.
3.10 Effective Date; Duration
The Plan, as amended, shall become effective as of the date
the shareholders approve the Plan. No grant may be given under the
Plan after May 31, 2006, but grants theretofore granted may extend
beyond such date.
3.11 Change in Control
Notwithstanding anything herein to the contrary, if a Change
in Control of the Company occurs, then all Options shall become
fully exercisable as of the date such Change in Control occurred.
For the purposes of the Plan, a Change in Control of the Company
shall be deemed to have occurred upon the earliest of the following
events:
(a) when the Company acquires actual knowledge that any
person (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the beneficial owner (as defined in Rule 13d-
3 of the Exchange Act) directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of
the Company's then-outstanding securities;
(b) upon the first purchase of Common Stock pursuant to
a tender or exchange offer (other than a tender or exchange offer
made by the Company);
(c) upon the approval by the Company's shareholders of
(1) a merger or consolidation of the Company with or into another
corporation (other than a merger or consolidation in which the
Company is the surviving corporation and which does not result in
any capital reorganization or reclassification or other change in
the Company's then-outstanding shares of Common Stock), (ii) a sale
or disposition of all or substantially all of the Company's assets
or (iii) a plan of liquidation or dissolution of the Company; or
(d) if the Board of Directors or any designated
committee determines in its sole discretion that any person (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than a person who exercised a controlling influence as of the
effective date of the Plan, directly or indirectly exercises a
controlling influence over the management or policies of the
Company.
<PAGE 16>
3.12 Governing Law
The Plan and all actions taken thereunder shall be governed by
and construed in accordance with the laws of the State of
Connecticut.
(As amended February 25, 1997, subject to shareholder approval).
<PAGE 17>
Exhibit 4(b)
ACME UNITED CORPORATION
NON-SALARIED DIRECTOR'S STOCK OPTION AGREEMENT
THIS DIRECTOR'S STOCK OPTION AGREEMENT (the "Agreement") is
effective as of the day of , 199 between Acme United
Corporation, a Connecticut corporation (the "Company"), and
______________________, a non-salaried director of the Company (the
"Optionee").
W I T N E S S E T H
Section 1. GRANT OF STOCK OPTION. Pursuant to the provisions
of Article II of the Acme United Corporation's Non-Salaried
Director Stock Option Plan (the "Plan"), the Company hereby grants
to the Optionee, subject to the terms and conditions of the Plan
(which terms and conditions are hereby incorporated by reference),
the right and option (the "Stock Option") to purchase from the
Company ( ) shares of common stock, par value
$2.50, of the Company (the "Common Stock"), subject to the terms
and conditions of this Agreement. The Stock Option shall not
constitute an incentive stock option within the meaning of the
Internal Revenue Code of 1986, as amended (the "Code").
Section 2. TERMS AND CONDITIONS. The stock Option is subject
to the following terms and conditions:
(a) PRICE. The purchase price per share shall be
$___________.
(b) EXPIRATION DATE. The Stock Option shall expire
10 years after the date hereof, or , 199 .
(c) EXERCISE OF OPTION. The Stock Option may be
exercised, to the extent exercisable by its terms and by the terms
of the Plan, in whole, or from time to time in part, at any time
prior to the expiration hereof pursuant to a written notice of
exercise delivered to the Company at its principal business office
or such other location as the Company may direct (1) specifying the
number of shares to be purchased, and (2) accompanied by a check
payable to the Company in an amount equal to the full exercise
price of the number of shares being exercised.
This Option is further subject to the following
limitations on exercise by the Optionee:
1. With respect to 25% of the Shares (_____) of
Common Stock, the Optionee's right of exercise under this Option
shall be subject only to the general limitations set forth in the
Plan with respect to all stock options which are intended to be
Incentive Stock Options.
2. With respect to a further 25% of the shares
(______) of Common Stock, in addition to the general limitations
set forth in the Plan, the Optionee shall in no event have any
right of exercise until ___________. In the event the Optionee is
not a director of the Company on ____________, his right of
exercise with respect to said shares and with respect to the shares
referred to in subsections 3 and 4 of this Section, shall
immediately lapse and shall be of no further force or effect.
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3. With respect to a further 25% of the shares
(______) of Common Stock, in addition to the general limitations
set forth in the Plan, the Optionee shall in any event have no
right of exercise until _______________. In the event the Optionee
is not a director of the Company on ______________, his right of
exercise with respect to said shares and with respect to the shares
referred to in subsection 4 of this Section, shall immediately
lapse and shall be of no further force or effect.
4. With respect to the balance of 25% of the shares
(______) of Common Stock, in addition to the general limitations
set forth in the Plan, the Optionee shall in any event have no
right of exercise until ______________. In the event the Optionee
is not a director of the Company on _____________, his right of
exercise with respect to said shares shall immediately lapse and
shall be of no further force or effect.
(d) ELECTIVE DESIGNATION. The Optionee, by written
notice to the Company, may designate one or more persons (and from
time to time change such designation) including his or her legal
representative, who, by reason of his or her death, shall acquire
the right to exercise all or a portion of the Stock Option. If no
designation is made before the death of the Optionee, the
Optionee's Stock Option may be exercised by the personal
representative of the Optionee's estate, or by a person who
acquired the right to exercise such Stock Option by will or the
laws of descent and distribution. If the person with exercise
rights desires to exercise any portion of the Stock Option, such
person must do so in accordance with the terms and conditions of
this Agreement.
(e) EXERCISE UPON DEATH, DISABILITY OR TERMINATION
OF DIRECTORSHIP. Except as provided in this Section 2(e), after
the Optionee ceases to serve as a director of the Company for any
reason, including, without limitation, retirement or any other
voluntary or involuntary termination of the Optionee's service as a
director (a "Termination"), the unexercisable portion of the Stock
Option shall immediately terminate and be null and void, and the
unexercised portion of any outstanding Stock Options held by such
Optionee shall terminate and be null and void for all purposes
after (30) days from the date of the Termination unless extended by
the Committee, in its sole discretion, within thirty (30) days from
the date of the Termination. Upon a Termination as a result of
death or Disability, any outstanding Stock Options may be exercised
by the Optionee or the Optionee's legal representative within
twelve (12) months after such death or Disability; provided,
however, that in no event shall the period extend beyond the
expiration of the option's term.
(f) EXPIRATION. In no event shall Optionee or, on
Optionee's death, Optionee's successors, exercise the Stock Option
after the expiration date specified in Section 2(b) of this
Agreement.
Section 3. NONTRANSFERABILITY. The Stock Option shall not be
assignable or transferable other than by will, the laws of descent
and distribution or a qualified domestic relations order ("QDRO")
as defined by the Code or Title I of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder. During
the lifetime of the Optionee, the Stock Option shall be exercisable
only by the Optionee or by the guardian or legal representative of
the Optionee or pursuant to a QDRO.
<PAGE 19>
Section 4. ADJUSTMENTS. In the event of a reorganization,
recapitalization, stock split, stock dividend, combination of
shares, rights offer, liquidation, dissolution, merger,
consolidation, spin-off or sale of assets, or any other change in
or affecting the corporate structure or capitalization of the
Company, then in any such event the number and kind of shares
subject to the Stock Option and the purchase price per share shall
be appropriately adjusted pursuant to Section 3.2 of the Plan
consistent with such change and in such manner as the Committee may
deem equitable to prevent substantial dilution or enlargement of
the rights granted to the Optionee hereunder. Any adjustment so
made shall be final and binding on the Optionee.
Section 5. NO RIGHTS AS SHAREHOLDER. The Optionee shall have
no right as a shareholder with respect to any shares subject to the
Stock Option prior to the date of issuance of a certificate or
certificates for such shares.
Section 6. INCOME TAX WITHHOLDING. The parties hereto
recognize that, pursuant to Section 3.7 of the Plan, the Company
may be obligated to withhold federal, state or local income taxes
and social security taxes in connection with the exercise of the
Stock Option or in connection with the disposition of any shares of
Common Stock acquired by exercise of the Stock Option. The
Optionee agrees that upon demand the Optionee will promptly pay to
the Company any additional amounts as may be necessary to satisfy
such withholding tax obligation.
Section 7. INVESTMENT REPRESENTATION. As a condition
precedent to the exercise of the Stock Option with respect to any
shares the Optionee shall execute and deliver to the Company a
letter containing such investment representations as shall be
required by the Company's legal counsel to satisfy all applicable
securities laws and regulations.
Section 8. OPTIONEE BOUND BY PLAN. The Optionee hereby
acknowledges receipt of a copy of the Plan and agrees to be bound
by all the terms and provisions thereof. In the event of the terms
of this Agreement are deemed to conflict with any of the terms of
the Plan, the terms of the Plan shall prevail.
Section 9. NOTICES. Any notice hereunder to the Company
shall be addressed to it at its office, 75 Kings Highway Cutoff,
Fairfield, Connecticut 06430 and any notice hereunder to the
Optionee shall be addressed to him at
, subject to the right of either party to designate at any time
hereafter, in writing, some other address.
Section 10. DEFINED TERMS. Capitalized terms not otherwise
defined in this Agreement shall have the meaning ascribed to them
in the Plan.
Section 11. GOVERNING LAW AND BINDING EFFECT. This Agreement
shall be governed by the laws of the State of Connecticut and shall
inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrator, successors and
permitted assigns.
Section 12. COUNTERPARTS. This Agreement may be executed in
two counterparts, each of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its duly authorized officer and the
Optionee has executed this Agreement to be effective as of the days
and year first above written.
ACME UNITED CORPORATION
By: ____________________________
Its __________________________
________________________________
Optionee:
ATTEST:
_____________________________
Cheryl L. Kendall, Secretary
<PAGE 21>
James E. Rice
OPINION OF COUNSEL REGARDING THE LEGALITY OF THE SHARES OF COMMON
STOCK -- EXHIBIT 5
May 6, 1997
Acme United Corporation
75 Kings Highway Cutoff
Fairfield, CT 06430
Dear Sir or Madam:
We have acted as counsel for Acme United Corporation (the
"Company") in connection with the preparation and filing with the
Securities and Exchange Commission of the Form S-8 Registration
Statement (the "Registration Statement") relating to 60,000 shares
of Common Stock, par value $2.50 per share, of the Company (the
"Common Stock") to be offered pursuant to the Acme United
Corporation Non-Salaried Director Stock Option Plan (the "Plan").
We have examined and are familiar with (i) the Articles of
Incorporation and the Bylaws of the Company, (ii) the corporate
proceedings authorizing the issuance of 60,000 shares of Common
Stock pursuant to the Plan, and (ii) such other documents and
instruments as we have considered necessary for the purposes of the
opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of
the State of Connecticut.
2. Upon issuance and delivery of the shares of Common Stock
pursuant to the Plan and payment to the Company of the
option price for the Common Stock, such shares will be
validly issued, fully paid, and nonassessable.
We hereby consent to the use of this opinion and our names in
connection with the Registration Statement filed with the
Securities and Exchange Commission to register the shares of Common
Stock to be offered as aforesaid.
Very truly yours,
/s/ Marsh, Day & Calhoun
<PAGE 22>
Exhibit 24(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Acme United Corporation on Form S-8 (File No.________)
of our reports dated March 21, 1997, on our audits of the
consolidated financial statements and financial statement schedule
of Acme United Corporation as of December 31, 1996 and 1995, and
for the three years ended December 31, 1996, which reports are
included in the Annual Report on Form 10-K.
/s/ Cooper & Lybrand L.L.P.
Hartford, Connecticut
May 5, 1997
A:\EXH24B.CON
