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As filed with the Securities and Exchange Commission on May 3, 1995
Sequential page 1 of 11. Exhibit Index located at sequential page 8.
Registration Statement No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN CONSUMER PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-1376833
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
31100 Solon Road
Solon, Ohio 44139
(Address of principal executive offices)
AMERICAN CONSUMER PRODUCTS, INC.
AMENDED AND RESTATED STOCK OPTION PLAN
(Full title of the plan)
------------------------
Stephan W. Cole
President
American Consumer Products, Inc.
31100 Solon Road
Solon, Ohio 44139
(216) 248-7000
(Name, address, and telephone number, including area code,
of agent for service)
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Approximate date of offering hereunder: As soon as practicable after the
effective date of this Registration Statement.
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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
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Common Stock 187,500 shs. $2.50 (1) $468,750 (1) $ 161.64 (1)
$.10 par value
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(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents heretofore filed with the Commission are
incorporated herein by reference and made a part hereof: (i) the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994, (ii)
all reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), since the end of the fiscal year
covered by the Annual Report on Form 10-K, referred to in subsection (i) above,
and (iii) a description of the Registrant's shares of Common Stock set forth in
the Registrant's Registration Statement on Form 8-A filed with the Commission
under the 1934 Act, including any amendment or report filed for the purpose of
updating that description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the 1934 Act after the date of this Registration
Statement and prior to the filing of a posteffective amendment that indicates
that all securities offered have been sold or that deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part of this Registration Statement from the
date of filing of those documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation, and, accordingly, Delaware
law and the current Restated Certificate of Incorporation of the Registrant
apply with respect to indemnification of directors and officers. Accordingly,
the provisions of both (1) Delaware law and (2) the Registrant's Restated
Certificate of Incorporation relating to indemnification of directors and
officers are discussed below.
The Restated Certificate of Incorporation of the Registrant provides
for the indemnification of directors, officers, and employees for expenses
incurred by them and judgments rendered against them in actions, suits, or
proceedings brought against them as such directors, officers, and employees,
respectively. The Restated Certificate of Incorporation of the Registrant
permits the Registrant to advance expenses incurred by any director or officer
indemnified under the Restated Certificate of
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Incorporation in a legal proceeding prior to final disposition of the
proceeding. The Registrant also has entered into Indemnity Agreements with
each of its directors and officers which (a) provide directors and officers
with the indemnification to which they are now entitled notwithstanding any
repeal or amendment of the Registrants' Restated Certificate of Incorporation;
(b) obligate the Registrant to use its best efforts to maintain liability
insurance for its directors and officers no less favorable than its current
liability insurance; (c) assure the directors and officers of indemnification
directly from the Registrant that would be essentially coextensive with that
provided by the Registrant's current liability insurance, should that insurance
be unavailable or less comprehensive in the future; and (d) provide further
assurance to the directors and officers that the expenses will be reimbursed as
they are incurred.
The Registrant maintains liability insurance for all of its directors
and officers. This insurance also insures the Registrant against amounts
payable to indemnify directors and officers, subject to policy limits and
retention amounts.
Section 145 of the General Corporation Law of Delaware provides that a
corporation may indemnify or agree to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee, or
agent of another corporation, against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the action, suit, or
proceeding if he acted in good faith and in a manner 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. Any such indemnification, unless ordered by a court, may
be made by the corporation only as authorized in the specific case upon a
determination by a majority vote of a quorum of disinterested directors, by a
written opinion by independent legal counsel, or by the stockholders that
indemnification of the director, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct.
To the extent that a director, officer, employee, or agent has been
successful in the merits or otherwise in defense of any action, suit, or
proceeding
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referred to above, Section 145 of the General Corporation Law of Delaware
requires that the corporation indemnify him against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with the
action, suit, or proceeding.
Section 145 of the General Corporation Law of Delaware requires a
corporation, unless the corporation's certificate of incorporation or bylaws
specifically state otherwise, to advance a director's of officer's expenses,
including attorneys' fees, incurred in defending the action, suit, or
proceeding, as they are incurred, upon receipt of an undertaking by the
director or officer to repay such amounts if it is ultimately determined that
he is not entitled to be indemnified by the corporation.
Section 145 of the General Corporation Law of Delaware provides that
the indemnification authorized by that Section shall not be exclusive of and
shall be in addition to any other rights granted to those seeking
indemnification under the certificate of incorporation or bylaws or any
agreement, vote of stockholders or disinterested directors, or otherwise.
Section 145 also provides that insurance and other similar forms of protection
are permitted.
ITEM 8. EXHIBITS
The Exhibits to this Registration Statement are listed in the Exhibit
Index on sequential page 8.
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
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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered
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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 Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's Annual Report pursuant to Section 13(a) or Section
15(d) of the 1934 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.
(c) The Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to any meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X
is not set forth in the prospectus, to deliver, or cause to be delivered, to
each person to whom the prospectus is sent or given the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide the
interim financial information.
(d) Insofar as indemnification for liabilities arising under
the Securities Act of 1993, as amended, 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 the indemnification is against public policy
as expressed in the Securities Act of 1993, as amended, and is, therefore,
unenforceable. In the event a claim or 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
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the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1993, as amended, 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, the
Registrant has duly caused this Registration Statement on Form S-8 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Solon, State of Ohio, on May 3, 1995.
AMERICAN CONSUMER PRODUCTS, INC.
By:/s/Stephan W. Cole
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Stephan W. Cole, President
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 dates, indicated.
/s/ Stephan W. Cole President and Treasurer
- ------------------------- (Principal Executive and
Stephan W. Cole Financial Officer); Director
/s/ Richard F. Bern Executive Vice President and
- ------------------------- Secretary; Director
Richard F. Bern
/s/ Joel M. Falck Vice President-Finance
- ------------------------- (Principal Accounting Officer)
Joel M. Falck
Director
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Jeffrey A. Cole
/s/ Malvin E. Bank Director
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Malvin E. Bank
Director
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Frank W. Hulse
May 3, 1995
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AMERICAN CONSUMER PRODUCTS, INC.
INDEX TO EXHIBITS
Sequential
Exhibit Description Page No.
------- ----------- --------
5 Opinion of Thompson, Hine and 9
Flory, as to the legality of
the shares of Common Stock
being registered.
23(a) Consent of Arthur Andersen LLP 11
23(b) Consent of Thompson, Hine and N/A
Flory (set forth in their
opinion referenced as Exhibit 5).
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EXHIBIT 5
[Thompson, Hine and Flory Letterhead]
May 3, 1995
American Consumer Products, Inc.
31100 Solon Road
Solon, Ohio 44139
Gentlemen:
As counsel for American Consumer Products, Inc., a Delaware corporation
(the "Company"), we are familiar with the Registration Statement on Form S-8
(the "Registration Statement") to be filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, with respect to a maximum of 187,500 shares of Common Stock in the
aggregate, $.10 par value, of the Company (the "Shares") to be issued upon the
exercise of options granted under American Consumer Products, Inc. Amended and
Restated Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined the following:
1. The Restated Certificate of Incorporation and the Bylaws of
the Company, each as currently in effect;
2. The records relating to the organization of the Company and
such other records of corporate proceedings and such other documents as
we deemed it necessary to examine as a basis for the opinions
hereinafter expressed;
3. The Registration Statement (including Exhibits thereto); and
4. Copies of the Plan, and the records of the proceedings of
the Board of Directors and stockholders of the Company relating to the
adoption and approval thereof.
Based upon that examination, we are of the opinion that:
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American Consumer Products, Inc. Page 2
May __, 1995
A. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware.
B. The Shares have been duly authorized and, when issued and
delivered upon exercise of the options granted pursuant to the Plan
and in the manner contemplated by the Registration Statement, will be
validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this Opinion as Exhibit 5(a)
to the Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Gregory A. Smith
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EXHIBIT 23(a)
Consent of Independent Public Accountants
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As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
March 23, 1995 included in American Consumer Products, Inc.'s Form 10-K for the
year ended December 31, 1994 and to all references to our firm included in this
registration statement.
ARTHUR ANDERSEN LLP
May 3, 1995
