As filed with the Securities and Exchange Commission on April 20, 1999
File No. _______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Action Products International, Inc.
(Exact name of issuer as specified in its charter)
Florida 59-2095427
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
344 Cypress Road
Ocala, Florida 34472
(Address of principal executive offices) (Zip Code)
Action Products International, Inc.
1996 Stock Option Plan
(Full title of the plan)
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344 Cypress Road
Ocala, Florida 34472
Telephone No.: (352) 687-2202
(Name and address of agent for service)
Copy to:
Joel D. Mayersohn, Esq.
Atlas, Pearlman, Trop & Borkson, P.A.
200 East Las Olas Boulevard, Suite 1900
Fort Lauderdale, FL 33301
(954) 763-1200
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CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered share(1) price(1) fee(1)
================================================================================
Common Stock
($.001 par value) 900,000 shares $3.20 $2,880,720 $801
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of (i) 634,000 shares underlying
outstanding options under the 1996 Stock Option Plan at a weighted average
exercise price of $3.52 per share and (ii) the 266,000 balance of shares
reserved for issuance under the 1996 Stock Option Plan at $2.44, comprising the
average of the bid and ask price of the Common Stock of the Company on the
NASDAQ SmallCap Market on April 20, 1999.
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<TABLE>
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ACTION PRODUCTS INTERNATIONAL, INC.
CROSS REFERENCE SHEET REQUIRED BY ITEM 501(b) OF REGULATION S-K
Form S-8 Item Number
and Caption Caption in Prospectus
--------------------- ---------------------
<S> <C>
1. Forepart of Registration Facing Page of Registration Statement
Statement and Outside Front and Cover Page of Prospectus
Cover Page of Prospectus
2. Inside Front and Outside Back Inside Cover Page of Prospectus and
Cover Pages of Prospectus Outside Cover Page of Prospectus
3. Summary Information, Risk Not Applicable
Factors and Ratio of Earnings
to Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Not Applicable
8. Plan of Distribution Cover Page of Prospectus
9. Description of Securities to be Description of Securities; Action
Registered Products International, Inc. 1996
Stock Option Plan
10. Interests of Named Experts Legal Matters
and Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Certain Documents
Information by Reference by Reference
13. Disclosure of Commission Indemnification of Directors and Officers;
Position on Indemnification for Undertakings
Securities Act Liabilities
</TABLE>
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PROSPECTUS
ACTION PRODUCTS INTERNATIONAL, INC.
900,000 Shares of Common Stock
($.001 par value)
Issued Pursuant to the Action Products International, Inc. 1996 Stock
Option Plan
This Prospectus is part of a Registration Statement which registers
900,000 shares of Common Stock, $.001 par value (such shares being referred to
as the "Shares"), of Action Products International, Inc. (the "Company"), which
may be issued, as set forth herein, to officers, directors, key employees and
consultants of the Company pursuant to the exercise of non-qualified or
incentive stock options to purchase up to 900,000 shares of Common Stock under
and in accordance with the Action Products International, Inc. 1996 Stock Option
Plan (the "Plan") (the Plan covers the issuance of up to 900,000 shares of
Common Stock). All of the Option Shares have been or will be granted or issued
to officers, directors, key employees and consultants pursuant to individual
written Option Agreements. Such selling stockholders may sometimes hereafter be
collectively referred to as the "Selling Security Holders". The Selling Security
Holders may sell all or a portion of the Shares from time to time in the Nasdaq
SmallCap Market, in negotiated transactions, directly or through brokers or
otherwise, and such Shares will be sold at market prices prevailing at the time
of such sales or at negotiated prices, and the Company will not receive any
proceeds from such sales, except upon exercise of the Options.
No person has been authorized by the Company to give any information or
to make any representation other than as contained in this Prospectus, and if
given or made, such information or representation must not be relied upon as
having been authorized by the Company. Neither the delivery of this Prospectus
nor any distribution of the Shares issuable under the terms of the Agreement
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED ON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL SECURITIES IN ANY STATE TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH STATE.
The date of this Prospectus is April 20, 1999
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed with the Commission can be inspected and
copied at the public reference facilities of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Copies of this material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Company's Common Stock is traded on The Nasdaq SmallCap Market under the symbol
"APII". Electronic Reports and other information found through the Electronic
Data Gathering, Analysis & Retrieval System are probably available through the
Commission's website (http://www.sec.gov.).
The Company has filed with the Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), with respect to an aggregate of 900,000 shares of the
Company's Common Stock, issued or to be issued to officers, directors, key
employees or consultants to the Company under the Plan. This Prospectus, which
is Part I of the Registration Statement, omits certain information contained in
the Registration Statement. For further information with respect to the Company
and the shares of the Common Stock offered by this Prospectus, reference is made
to the Registration Statement, including the exhibits thereto. Statements in
this Prospectus as to any document are not necessarily complete, and where any
such document is an exhibit to the Registration Statement or is incorporated by
reference herein, each such statement is qualified in all respects by the
provisions of such exhibit or other document, to which reference is hereby made,
for a full statement of the provisions thereof. A copy of the Registration
Statement, with exhibits, may be obtained from the Commission's office in
Washington, D.C. (at the above address) upon payment of the fees prescribed by
the rules and regulations of the Commission, or examined there without charge.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
years ended December 31, 1997 and 1998.
(b) Quarterly Reports on Form 10-QSB for the quarterly periods
ended March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The Company's Current Report on Form 8-K filed February
26, 1998.
(d) All reports and documents filed by the Company pursuant to
Sections 13, 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which de-registers all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
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hereof from the respective date of filing of such documents. Any statement
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus 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 modified or superseded shall not be deemed, except as so modified or
superseded, to constitute part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Investor Relations, Action
Products International, Inc., 344 Cypress Road, Ocala, Florida 34472.
THE COMPANY
Action Products International, Inc. (the "Company") began its
operations in 1977 and subsequently incorporated in Florida in 1980. The Company
designs, manufactures and markets toys and published products in a creative
portfolio of educationally-minded product lines. The Company's products are sold
primarily to toy stores, specialty retailers, education outlets, museums, zoos,
aquariums, theme parks and attractions in the United States and worldwide. Since
1996 the Company has evolved into a manufacturer and producer of toys and
published products from its previous role as a toy and book distributor.
The Company sells its educational toy products lines under the name
"Action Products(tm)". The lines include such brands as SpaceVoyagers(tm),
Woodkits(tm), Imaginetics(tm) and PowerBalls(tm) which include figurines,
activity kits, and other toy and gift items with a strategic emphasis on space,
dinosaurs, science and nature, and other non-violent categories. The Company
also sells toys under a license from Discovery Channel(R). The Company's
products are derived from approximately 20 sources and are produced by outside
manufacturing companies in the United States, Mexico, Taiwan, Hong Kong and,
increasingly, China, and are brought in directly by the Company as finished
goods.
The Company publishes its line of educational books under the name
"Action Publishing(tm)". The line includes children's activity, coloring and
sticker books and CD-ROMs on topics such as nature, science, dinosaurs and
aerospace. Its books are produced both domestically and overseas.
Action Products International, Inc. 1996 Stock Option Plan
The Company's 1996 Stock Option Plan was adopted by the Board of
Directors on May 28, 1996 and by a majority of the shareholders of the
outstanding Common Stock of the Company on May 22, 1997.
Under the Plan, the Company has reserved the aggregate of 900,000
shares of Common Stock for issuance pursuant to options granted under the Plan
("Plan Options"). The Board of Directors or the Compensation Committee of the
Board of Directors (the "Committee") of the
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Company administers the Plan including, without limitation, the selection of the
persons who will be granted Plan Options under the Plan, the type of Plan
Options to be granted, the number of shares subject to each Plan Option and the
Plan Option price.
Plan Options granted under the Plan may either be options qualifying as
incentive stock options ("Incentive Options") under Section 422 of the Internal
Revenue Code of 1986, as amended, or options that do not qualify ("Non-Qualified
Options"). Any Incentive Option granted under the Plan must provide for an
exercise price of not less than 100% of the fair market value of the underlying
shares on the date of such grant, but the exercise price of any Incentive Option
granted to an eligible employee owning more than 10% of the Company's Common
Stock must be at least 110% of such fair market value as determined on the date
of the grant. The term of each Plan Option and the manner in which it may be
exercised is determined by the Board of Directors or the Committee, provided
that no Plan Option may be exercisable more than 10 years after the date of its
grant and, in case of an Incentive Option granted to an eligible employee owning
more than 10% of the Company's Common Stock, no more than five years after the
date of the grant.
The exercise price of Non-Qualified Options shall be determined by the
Board of Directors or the Committee, but shall in no event be less than 75% of
the fair market value of the underlying shares on the date of grant.
Officers, key employees, board members and consultants of the Company
are eligible to receive Non-Qualified Options under the Plan. Only officers, key
employees and consultants of the Company who are employed by the Company are
eligible to receive Incentive Options.
If an optionee's employment is terminated for any reason, other than
his death, disability or retirement, the Plan Option granted to him shall lapse
to the extent unexercised on the earlier of the expiration date or the date of
termination. If the optionee dies during the term of his employment, the Plan
Option granted to him shall lapse to the extent unexercised on the earlier of
the expiration date of the Plan Option or the date 30 days following the date of
the optionee's death. If the optionee is permanently and totally disabled within
the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, the Plan
Option granted to him lapses to the extent unexercised on the earlier of the
expiration date of the option or one year following the date of such disability.
Plan Options will immediately terminate if employment is terminated for cause as
determined by the Company.
The Board of Directors or Committee may amend, suspend or terminate the
Plan at any time, except that no amendment shall be made without shareholder
approval which (i) increases the total number of shares subject to the Plan,
(ii) materially increases the benefits accruing to Plan participants, or (iii)
materially modifies the requirements as to eligibility for participation in the
Plan. Unless the Plan shall theretofore have been suspended or terminated by the
Board of Directors, the Plan shall terminate on May 29, 2006. any such
termination of the Plan shall not affect any Plan Options granted under the Plan
prior to the actual date on which such action occurred.
The following discussion is based on federal income tax laws and
regulations in effect on May 31, 1996. It does not purport to be a complete
description of the federal income tax
4
<PAGE>
consequences of the Plan, nor does it describe the consequences of state, local
or foreign tax laws which may be applicable. Accordingly, any person receiving a
grant under the Plan should consult with his own tax adviser.
An employee granted an Incentive Stock Option does not recognize
taxable income either at the date of grant or at the date of this timely
exercise. However, the excess of the fair market value of Common Stock received
upon exercise of the Incentive Stock Option over the Option exercise price is an
item of tax preference under Section 57(a)(3) of the Code and may be subject to
the alternative minimum tax imposed by Section 55 of the Code. Upon disposition
of stock acquired on exercise of an Incentive Stock Option, long-term capital
gain or loss is recognized in an amount equal to the difference between the
sales price and then Incentive Stock Option exercise price, provided that the
Option holder has not disposed of the stock within two years from the date of
grant and within one year from the date of exercise. If the Incentive Stock
Option holder disposes of the acquired stock (including the transfer of acquired
stock in payment of the exercise price of an Incentive Stock Option) without
complying with both of these holding period requirements ("Disqualifying
Disposition"), the option holder will recognize ordinary income at the time of
such Disqualifying Disposition to the extent of the difference between the
exercise price and the lesser of the fair market value of the stock on the date
the Incentive Stock Option is exercised (the value six months after the date of
exercise may govern in the case of an employee whose sale of stock at a profit
could subject him to suit under Section 16(b) of the Securities Exchange Act of
1934) or the amount realized on such Disqualifying Disposition. Any remaining
gain or loss is treated as a short-term or long-term capital gain or loss,
depending on how long the shares are held. In the event of a Disqualifying
Disposition, the Incentive Stock Option tax preference described above may not
apply (although, where the Disqualifying Disposition occurs subsequent to the
year the Incentive Stock Option is exercised, it may be necessary for the
employee to amend his return to eliminate the tax preference items previously
reported). The Company is not entitled to a tax deduction upon either exercise
of an Incentive Stock Option or disposition of stock acquired pursuant to such
an exercise, except to the extent that the Option holder recognized ordinary
income in a Disqualifying Disposition.
In respect to the holder of Non-Qualified Options, the option holder
does not recognize taxable income on the date of the grant of the Non-Qualified
Option, but recognizes ordinary income generally at the date of exercise in the
amount of the difference between the option exercise price and the fair market
value of the Common Stock on the date of exercise. However, if the holder of
Non-Qualified Options is subject to the restrictions on the resale of Common
Stock under Section 16 of the Securities Exchange Act of 1934, such person
generally recognizes ordinary income at the end of the six month period
following the date of exercise in the amount of the difference between the
option exercise price and the fair market value of the Common Stock at the end
of the six month period. Nevertheless, such holder may elect within 30 days
after the date of exercise to recognize ordinary income as of the date of
exercise. The amount of ordinary income recognized by the Option holder is
deductible by the Company in the year that income is recognized.
Restrictions Under Securities Laws
The sale of any shares of Common Stock must be made in compliance with
federal and state securities laws. Officers, directors and 10% or greater
stockholders of the Company, as
5
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well as certain other persons or parties who may be deemed to be "affiliates" of
the Company under the federal securities laws, should be aware that resales by
affiliates can only be made pursuant to an effective registration statement,
Rule 144 or any other applicable exemption. Officers, directors and 10% or
greater stockholders are also subject to the "short-swing" profit rule of
Section 16(b) of the Securities Exchange Act of 1934.
DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized to issue 15,000,000 shares of Common Stock,
$.001 par value per share, of which as of the date of this prospectus, 1,624,900
shares of Common Stock are outstanding. All outstanding shares of Common Stock
are, and all shares of Common Stock to be outstanding pursuant to the issuance
of Common Stock underlying the Options will be, validly authorized and issued,
fully paid and nonassessable.
The holders of Common Stock are entitled to one vote for each share
held of record on all matters submitted to a vote of shareholders. Subject to
the preferential dividend rights applicable to shares of any series of preferred
stock, the holders of shares of Common Stock shall be entitled to receive
ratably such dividends as may be declared by the Board of Directors out of funds
legally available therefor. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after distribution in
full of the preferential amounts to be distributed to the holders of shares of
the preferred stock, the holders of shares of the Common Stock shall be entitled
to receive all of the remaining assets of the Corporation available for
distribution to its shareholders, ratably in proportion to the number of shares
of the Common Stock held by them. Holders of Common Stock have no preemptive
rights and have no rights to convert their Common Stock into any other
securities.
Preferred Stock
The Company is authorized to issue up to 10,000,000 shares of Preferred
Stock, $.001 par value per share, of which no shares are outstanding as of the
date hereof. The Preferred Stock may be issued in one or more series, the terms
of which may be determined at the time of issuance by the Board of Directors,
without further action by shareholders, and may include voting rights (including
the right to vote as a series on particular matters), preferences as to
dividends and liquidation, conversion rights and redemption rights. All shares
of Preferred Stock of any one series shall be identical in all respects with all
other shares of such series, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall be
payable, and if cumulative, shall accumulate.
Shares of any series of Preferred Stock that shall be issued and
thereafter acquired by the Corporation through purchase, redemption (whether
through the operation of a sinking fund or otherwise), conversion, exchange or
otherwise, shall upon appropriate filing and recording to the extent required by
law, have the status of authorized and unissued shares of Preferred Stock and
may be reissued as part of such series or as part of any other series of
Preferred Stock. Unless otherwise provided in the resolution or resolutions of
the Board of Directors providing for
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the issuance thereof, the number of authorized shares of stock of any series of
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by resolution or resolutions of the Board of
Directors and appropriate filing and recording to the extent required by law. In
case the number of shares of any such series of Preferred Stock shall be
decreased, the shares representing such decrease shall, unless otherwise
provided in the resolution or resolutions of the Board of Directors providing
for the issuance thereof, resume the status of authorized but unissued shares of
Preferred Stock, undesignated as to series.
TRANSFER AND WARRANT AGENT AND REGISTRAR
The transfer agent and registrar for the securities of the Company is
Continental Stock Transfer and Trust Company, 2 Broadway, New York, New York
10004.
LEGAL MATTERS
Certain legal matters in connection with the securities being offered
hereby will be passed upon for the Company by Atlas, Pearlman, Trop & Borkson,
P.A., Counsel for the Company, Fort Lauderdale, Florida.
EXPERTS
The Consolidated Financial Statements of the Company included in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1997,
incorporated by reference herein have been incorporated herein in reliance on a
report of Moore Stephens Lovelace, P.L., independent certified public
accountants, incorporated by reference herein and upon the authority of that
firm as experts in auditing and accounting.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided for in such statute. The Company's Bylaws provide that the Company
shall indemnify and may insure its officers and directors to the fullest extent
permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Florida law. In addition,
each director will continue to be subject to liability for (i) violations of
criminal laws, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful, (ii)
deriving an improper personal benefit from a transaction, (iii) voting for or
assenting to an unlawful distribution, and (iv) willful misconduct or conscious
disregard for the best interests of the Company in a proceeding by or in the
right of the Company to procure a judgment in its favor or in a proceeding by or
in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the Federal securities laws.
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The effect of the foregoing is to require the Company to indemnify the
officers and directors of the Company for any claim arising against such persons
in their official capacities if such person acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed in (a) through (d) below are incorporated by
reference in the Registration Statement. All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), 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 in the Registration Statement and to be part
thereof from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-KSB for the fiscal
years ended December 31, 1997 and 1998.
(b) Quarterly Reports on Form 10-QSB for the quarterly periods
ended March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The Company's Current Report on Form 8-K filed February
26, 1998.
(d) All reports and documents filed by the Company pursuant to
Sections 13, 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which de-registers all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
respective date of filing of such documents. Any statement incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus 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 modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus.
Item 4. Description of Securities
A description of the Company's securities is set forth in the
Prospectus incorporated as a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
A description of the indemnification of the Registrant's officers and
directors is set forth above under the heading "Indemnification of Directors and
Officers."
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Item 7. Exemption from Registration Claimed
Inasmuch as the employees, executives, directors and consultants who
receive the Shares of the Company will be either knowledgeable, sophisticated or
have access to comprehensive information relevant to the Company, such
transaction was undertaken in reliance on the exemption from registration
provided by Section 4(2) of the Act. Alternatively, the Company will rely upon
the exemption afforded by Regulation D under the Act. As a condition precedent
to such grant, such security holders were required to express an investment
intent and consent to the imprinting of a restrictive legend on each stock
certificate to be received from the registrant.
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<CAPTION>
Item 8. Exhibits
Exhibit Description
<S> <C>
(4) Action Products International, Inc.'s 1996 Stock Option Plan(1)
(5) Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating to the issuance
of shares pursuant to the Action Products International, Inc. 1996 Stock
Option Plan*
(23.1) Consent of Atlas, Pearlman, Trop & Borkson, P.A. included in the opinion
filed as exhibit (5) hereto*
(23.2) Consent of independent certified public accountants*
</TABLE>
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* Filed herewith.
(1) Incorporated by reference to the exhibit as filed with the Company's
Proxy Statement as filed with the Commission in April 1997.
Item 9. Undertakings
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings or sales are
being made, a post-effective amendment to this Registration Statement 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;
(b) That, for the purposes of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(c) 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.
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(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in 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.
(3) Insofar as indemnification for liabilities arising under the Act
may be permitted to Directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Ocala and the State of Florida, on the 20th day
of April, 1999.
ACTION PRODUCTS INTERNATIONAL, INC.
By: /s/ Ronald S. Kaplan
------------------------------------
Ronald S. Kaplan, Chairman of the
Board, President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Ronald S. Kaplan Director, President and April 20, 1999
- ------------------------- Chief Executive Officer
Ronald S. Kaplan
April 20, 1999
/s/ Delton G. de Armas Chief Financial
- ------------------------- Officer and Secretary
Delton G. de Armas
/s/ Richard Gordon, Jr. Director April 20, 1999
- -------------------------
Richard Gordon, Jr.
/s/ Judith Kaplan Director April 20, 1999
- -------------------------
Judith Kaplan
/s/ Ronald E. Tuchman Director April 20, 1999
- -------------------------
Ronald E. Tuchman
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
(5) Opinion of Atlas, Pearlman, Trop & Borkson, P.A. relating
to the issuance of shares pursuant to the Action Products
International, Inc. 1996 Stock Option Plan
(23.1) Consent of Atlas, Pearlman, Trop & Borkson, P.A. included
in the opinion filed as exhibit (5) hereto
(23.2) Consents of independent certified public accountants
Opinion of Atlas, Pearlman, Trop & Borkson, P.A.
relating to the issuance of shares of securities
pursuant to the Action Products International, Inc.
1996 Stock Option Plan
<PAGE>
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
New River Center, Suite 1900
200 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
(954) 763-1200
April 20, 1999
Action Products International, Inc.
344 Cypress Road
Ocala, Florida 34472
Re: Registration Statement on Form S-8; Action Products International,
Inc. - 1996 Stock Option Plan
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission (the "Commission") with respect to the
registration by Action Products International, Inc. (the "Company") of an
aggregate of 900,000 shares of Common Stock, par value $.001 per share (the
"Common Stock"), to be sold pursuant to the above-referenced Registration
Statement and the Company's Amended 1996 Stock Option Plan (the "Plan"). The
shares of Common Stock to be sold consist of 900,000 shares of Common Stock to
be issued under various Common Stock Purchase Options (the "Options") pursuant
to the Plan.
In our capacity as counsel to the Company, we have examined the
original, certified, conformed, photostat or other copies of the Company's
Articles of Incorporation (as amended), By-Laws and corporate minutes provided
to us by the Company. In all such examinations, we have assumed the genuineness
of all signatures on original documents, and the conformity to originals or
certified documents of all copies submitted to us as conformed, photostat or
other copies. In passing upon certain corporate records and documents of the
Company, we have necessarily assumed the correctness and completeness of the
statements made or included therein by the Company and we express no opinion
thereon.
Based upon and in reliance of the foregoing, we are of the opinion that
the shares of Common Stock to be issued upon exercise of the Options, when
issued in accordance with the terms thereof, will be validly issued, fully paid
and non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement on Form S-8 to be filed with the Commission.
Very truly yours,
/s/ ATLAS, PEARLMAN, TROP & BORKSON, P.A.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our Firm under the caption "Experts" in the
registration statement on Form S-8 and related prospectus of Action Products
International, Inc. and to the incorporation by reference therein of our report
dated January 26, 1999, with respect to the financial Statements of Action
Products International, Inc. included in it's Annual Report on Form 10-KSB for
the year ended December 31, 1998.
/s/ MOORE STEPHENS LOVELACE, P.A
---------------------------------
MOORE STEPHENS LOVELACE, P.A
CERTIFIED PUBLIC ACCOUNTANTS
Orlando, Florida
April 20, 1999
