UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (date of earliest event reported): July 1, 2005
Connecticut 01-07698 06-0236700
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) file number) Identification No.)
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1931 Black Rock Turnpike, Fairfield, Connecticut 06825
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (203) 332-7330
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[_] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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ITEM 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective July 1, 2005, Acme United Corporation (the "Company") restated its Certificate of Incorporation. The Restated Certificate of Incorporation reflects the numerous amendments previously made to the Company's Certificate of Incorporation and omits the provisions thereof which are no longer in effect. However, the Restated Certificate of Incorporation did not itself make any new substantive changes to the Certificate of Incorporation as previously in effect. A copy of the Company's Restated Certificate of Incorporation appears as Exhibit 3(i) to this Report.
ITEM 8.01. Other Events.
a. Description of the Company's Common Stock.
Common Stock.
The authorized capital stock of the Company consists of 8,000,000 shares of Common Stock, par value $2.50 per share. As of June 30, 2005, there were 3,554,983 shares of Common Stock issued and outstanding and a total of approximately 641,138 shares of Common Stock reserved for issuance upon exercise of outstanding stock options and options that may be granted in the future under the Company's 2002 Employee Stock Option Plan, as amended and the Company's 2005 Non-salaried Director Stock Option Plan.
Holders of Common Stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Accordingly, holders of the majority of shares of Common Stock entitled to vote in any election of directors may elect all of the directors standing for election. Holders of Common Stock are entitled to receive ratably such dividends, if any, as may be declared by the Board of Directors out of funds legally available therefor. Upon the liquidation, dissolution or winding up of the Company, the holders of Common Stock are entitled to share ratably in all assets of the Company available for distribution after the payment of all debts, liabilities and any preferences. Holders of Common Stock, as such, have no preemptive, subscription, redemption or conversion rights. The outstanding shares of Common Stock are fully paid and non-assessable.
Connecticut Law and Certain Charter and Bylaw Provisions.
Restrictions on Business Combinations.
The Company is subject to the provisions of the Connecticut Business Corporation Act (the "Act"). The Act prohibits a Connecticut corporation, such as the Company, from engaging in a merger, consolidation or other business combination with an interested shareholder (generally, the beneficial owner of 10% or more of a corporation's voting stock) for five (5) years following the time the shareholder became an interested shareholder unless, prior to that time, the corporation's board of directors and a majority of the non-employee directors, of which there must be at least two, approved the business combination or the transaction that resulted in the shareholder becoming an interested shareholder. After five years, business combinations may occur only if approved by 80% of the outstanding shares of the corporation and by two-thirds of the voting power of the corporation other than voting power held by an interested shareholder who is a party to the proposed business combination. The Company has not chosen and does not currently intend to "elect out" of the application of this statute.
The Company's Restated Certificate of Incorporation contains certain provisions which limit the personal liability of a director to the Company or its shareholders for monetary damages for breach of duty as a director to an amount equal to the compensation received by the director for serving the Company during the year of the violation, so long as the breach did not 1) involve a knowing and culpable violation of law by the director; 2) enable the director or an associate to receive an improper personal economic gain; 3) show a lack of good faith and a conscious disregard for the duty of the director to the Company under circumstances in which the director was aware that his conduct or omission created an unjustifiable risk of serious injury to the Company; 4) constitute a sustained and unexcused pattern of inattention that amounted to an abdication of the director's duty to the Company; or 5) create liability under the Act for the distribution of an illegal dividend. The Certificate of Incorporation also contains provisions indemnifying the Company's directors and officers to the fullest extent permitted by the Act. The Company believes that these provisions
will assist the Company in attracting and retaining qualified individuals to serve as directors and officers.
Registrar and Transfer Agent.
The registrar and transfer agent for the Common Stock is American Stock Transfer Company, New York, NY.
b. Specimen Common Stock Certificate.
The text of the form of the certificate representing shares of the Common Stock appears as Exhibit 4.1 hereto.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits. Exhibit Number Description -------------- ----------- 3(i) Restated Certificate of Incorporation. 4.1 Specimen Common Stock Certificate. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
ACME UNITED CORPORATION
By /s/ PAUL G. DRISCOLL
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Paul G. Driscoll
Vice President and
Chief Financial Officer
Dated: July 8, 2005
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EXHIBIT INDEX
Exhibit Number Description 3(i) Restated Certificate of Incorporation. 4.1 Specimen Common Stock Certificate. |
EXHIBIT 3(i)
Restated Certificate of Incorporation
RESTATED CERTIFICATE OF INCORPORATION
Article I. The name of the corporation is Acme United Corporation.
Article II. The purposes for which the Company is constituted are:
(a) To manufacture, buy, sell, own and deal in shears, scissors, cutlery, hardware, rulers, articles of wood or metal or both, school supplies, surgical instruments, and any and all kinds of real and personal property, including, but without limitation, patents, licenses, trade-marks and trade-names; and
(b) To engage, directly or indirectly, as principal or as agent, in any manufacturing, service, wholesaling, retailing, brokerage, or other business, activity, or course of conduct not prohibited by law.
Article III. The amount of Capital Stock of this corporation is Twenty Million Dollars ($20,000,000.00), divided into 8,000,000 shares of Common Stock of the par value of Two Dollars and Fifty Cents ($2.50) a share. The holders of Common Stock shall have no pre-emptive rights.
Article IV. Subject to the provisions of Connecticut General Statutes section 33-775, the corporation shall indemnify an individual who is a party to a proceeding because he is a director or officer of the corporation against liability (as defined in subdivision 5 of Connecticut General Statutes section 33-770) in the proceeding if:
(1)(A) he conducted himself in good faith; (B) he reasonably believed (i) in the case of conduct in his official capacity, that his conduct was in the best interests of the corporation; and (ii) in all other cases, that his conduct was at least not opposed to the best interests of the corporation; and (C) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; or
(2) such liability arises from any action taken, or any failure to take any action, as a director or officer, except liability that (A) involved a knowing and culpable violation of law by the director or officer; (B) enabled the director, officer or an associate, as defined in Connecticut General Statutes section 33-840, to receive an improper personal gain; (C) showed a lack of good faith and a conscious disregard for the duty of the director or officer to the corporation under circumstances in which the director or officer was aware that his conduct or omission created an unjustifiable risk of serious injury to the corporation; (D) constituted a sustained and unexcused pattern of inattention that amounted to an abdication of the director's or officer's duty to the corporation; or (E) created liability under Connecticut General Statutes section 33-757. This provision shall not affect the indemnification of or advance of expenses to a director or officer for any liability stemming from acts or omissions occurring prior to the effective date of this provision.
Article V. The personal liability of a director to this corporation or its shareholders for monetary damages for breach of duty as a director is hereby limited to an amount equal to the compensation received by such director for serving the corporation during the year of the violation, provided such breach did not (A) involve a knowing and culpable violation of law by the director; (B) enable the director or an associate, as defined in Connecticut General Statutes section 33-840, to receive an improper personal economic gain; (C) show a lack of good faith and a conscious disregard for the duty of the director to the corporation under circumstances in which the director was aware that his conduct or omission created an unjustifiable risk of serious injury to the corporation; (D) constitute a sustained and unexcused pattern of inattention that amounted to an abdication of the director's duty to the corporation; or (E) create liability under Connecticut General Statutes section 33-757. This provision shall not limit or preclude the liability of a director for any act or omission occurring prior to the effective date of this provision.
[SPECIMEN STOCK CERTIFICATE]
KW 6170 CUSIP 004816 10 4
ACME UNITED CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF CONNECTICUT
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $2.50 EACH
OF THE COMMON STOCK OF
ACME UNITED CORPORATION transferable on the books of the Company by the holder hereof in person, or by duly authorized attorney, upon surrender of this certificate properly endorsed. This certificate and the shares evidenced hereby are issued and shall be held subject to all of the provisions of the Certificate of Incorporation of the Company, to all of which the holder hereof by acceptance assents. This certificate is not valid unless countersigned and registered by a Transfer Agent and Registrar.
WITNESS the seal of the Company and the signatures of its duly authorized officers.
[SEAL]
Dated:
/s/ Paul Driscoll /s/ Walter C. Johnsen
President
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Countersigned and Registered:
AMERICAN STOCK TRANSFER COMPANY
Transfer Agent
and Registrar
By:
Authorized Officer
ACME UNITED CORPORATION
The Company will furnish to the holder hereof, upon request and without charge, a full statement of the designations, terms, limitations and relative rights and preferences of the shares of each class authorized to be issued by the Company.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT- Custodian
______________________________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act___________________________________
(Name)
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Additional abbreviations may also be used though not in the above list.
For value received _______________________ hereby sell, assign and transfer unto
------------------------------------------------------------------------ Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ---------------------------------------------
Attorney to transfer the said stock on the books of the within-named Corporation with full power of substitution in the premises.
Dated, _________________________