-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, By+GsOAQf/nmF+uXQ25E2a7LhBUxTMS+chtnnxBTyueV5uX9vKgBOA/WGT0X9HhO I6uWzdLTvZdTX4bBx8aAGA== 0000904802-99-000082.txt : 19990916 0000904802-99-000082.hdr.sgml : 19990916 ACCESSION NUMBER: 0000904802-99-000082 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19990915 EFFECTIVENESS DATE: 19990915 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ACME ELECTRIC CORP CENTRAL INDEX KEY: 0000002070 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRICAL INDUSTRIAL APPARATUS [3620] IRS NUMBER: 160324980 STATE OF INCORPORATION: NY FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-87129 FILM NUMBER: 99711928 BUSINESS ADDRESS: STREET 1: 400 QUAKER RD CITY: EAST AURORA STATE: NY ZIP: 14052 BUSINESS PHONE: 7166553800 MAIL ADDRESS: STREET 1: 400 QUAKER ROAD CITY: EAST AURORA STATE: NY ZIP: 14052 S-8 1 As filed with the Securities and Exchange Commission on September 15, 1999 Registration No. 333-___ ___________________________________________________________________________ ___________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ACME ELECTRIC CORPORATION (Exact name of Registrant as specified in its charter) New York 16-0324980 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 400 Quaker State Road East Aurora, New York 14052-2199 (Address of Principal Executive Office) (Zip Code) ACME ELECTRIC CORPORATION 1998 STOCK OPTION PLAN (Full title of the plan) Michael A. Simon, Controller ACME ELECTRIC CORPORATION 400 Quaker State Road East Aurora, New York 14052-2199 (Name and address of agent for service) 716-655-3800 (Telephone number, including area code, of agent for service) Copy to: Phillips, Lytle, Hitchcock, Blaine & Huber LLP 3400 Marine Midland Center Buffalo, New York 14203 Attention: John B. Drenning, Esq. CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Max. Max. Amount securities Amount offering aggregate of to be to be price per offering registration registered registered (1) share (2) price (2) fee (3) __________ ______________ _________ _________ ____________ Common Stock $1 par value(4) 500,000 shares $6.344125 $3,172,062.50 $881.84 (1) The number of shares are subject to adjustment in accordance with the anti-dilution provisions of the Plans. Accordingly, this Registration Statement also covers an indeterminable number of shares which may be issuable in connection with such provisions. - 1 - (2) Pursuant to Rule 457(c), estimated solely for the purpose of determining the registration fee, as follows: (i) as to 101,000 shares now under option, on the basis of the aggregate price at which such shares may be purchased by the optionees, and (ii) as to the remaining 399,000 shares for which options have not yet been granted, on the basis of the average of the high and low prices of the Common Stock on the New York Stock Exchange on September 10, 1999. (3) This registration statement, pursuant to Instruction E to Form S-8, relates to 231,000 shares previously registered on Form S-8 (No. 33-79488 and No. 33-59523) in connection with a predecessor plan, with respect to which a registration fee of $1,679 has been paid. (4) This Registration Statement also pertains to rights to purchase shares of Common Stock. One-half right is attached to and trades with each share of Common Stock. Until the occurrence of certain events, the rights are not exercisable and will not be evidenced or transferred apart from the Common Stock. EXPLANATORY STATEMENT A total of 441,220 shares of Common Stock of Acme Electric Corporation (the "Company") were registered by Registration Statements on Form S-8, File Nos. 33-79488 and 33-59523 in connection with the Company's 1989 Incentive Stock Option Plan (the "1989 Plan"). On October 30, 1998 the shareholders of the Company approved the Acme Electric Corporation 1998 Stock Option Plan (the "1998 Plan") and thereupon the 1989 Plan terminated. Two Hundred Thirty One Thousand (231,000) authorized but not granted shares of Common Stock of the Company which were registered in connection with the 1989 Plan will not be issued under the 1989 Plan and, pursuant to Instruction E to Form S-8 and the telephonic interpretations of the Securities and Exchange Commission (Interpretation No. 86 of Section 6. Securities Act Forms of the Division of Corporation Finance's Manual of Publicly Available Telephone Interpretations - July 1997), are carried forward to, this Registration Statement on Form S-8 in connection with the 1998 Plan. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Pursuant to the instructions for Form S-8, the documents containing the information specified in Items 1 and 2 of Part I of Form S-8 are not being filed with the Securities and Exchange Commission as part of this Registration Statement, but will be sent or given to (optionees) as specified by Rule 428(b)(1). - 2 - PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents previously filed with the Commission are incorporated by reference in this Registration Statement. (a) The Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1998. (b) The Company's Quarterly Reports on Form 10-Q for the periods ended October 3, 1998, January 2, 1999 and April 3, 1999. (c) The description of the Common Stock contained in the Company's Registration Statement filed under Section 12 of the Securities Exchange Act of 1934, dated December 1, 1981 and the description of the Common Stock purchase rights contained in the Company's Registration Statement under Section 12 of the Securities Exchange Act of 1934 filed on November 15, 1993. In addition, all documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel. John B. Drenning, Secretary of the Company, is a partner in the law firm of Phillips, Lytle, Hitchcock, Blaine & Huber LLP, which has rendered the legality opinion included in this Registration Statement as Exhibit 5. Item 6. Indemnification of Directors and Officers The New York Business Corporation Law ("NYBCL") grants corporations broad powers to indemnify their present and former directors and officers against judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with threatened, pending or completed actions, suits or proceedings to which they are parties or are threatened to be made parties by reason of being or having been such directors or officers, subject to specified conditions and exclusions; gives a director - 3 - or officer who successfully defends an action the right to be so indemnified; and permits a corporation to buy directors' and officers' liability insurance. Such indemnification is not exclusive of any other rights to which those indemnified may be entitled under any by-laws, agreement, vote of shareholders or otherwise. The Certificate of Incorporation and the By-Laws of the registrant provide for indemnification of directors and officers of the registrant to the fullest extent permitted by the NYBCL against expenses, liability and loss incurred by them in connection with any action, suit or proceeding to which they are, or are threatened to be, made parties by reason of their relationship with the registrant. In addition, the registrant has entered into indemnification agreements with each of its directors, providing for substantial indemnification rights and a mechanism for administering such rights. As permitted by the NYBCL, the registrant's Certificate of Incorporation provides that a director of the registrant shall not be liable for any breach of duty as a director, except to the extent that a judgment or other final adjudication adverse to him establishes that (1) his acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law, (2) he personally gained in fact a financial profit or other advantage to which he was not legally entitled or (3) his acts violated Section 719 of the NYBCL. In addition, the directors and officers of the registrant are covered by insurance policies indemnifying them against certain liabilities, including certain liabilities arising under the Securities Act of 1933, which might be incurred by them in such capacities. Item 7. Exemption from Registration. Not applicable. Item 8. Exhibits See the Exhibit Index, below. Item 9. Undertakings (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; - 4 - (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed - 5 - in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. - 6 - SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in East Aurora, New York on August 23, 1999. ACME ELECTRIC CORPORATION By:/s/Robert J. McKenna ______________________________ ROBERT J. McKENNA Chairman, President and Chief Executive Officer - 7 - POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints ROBERT J. McKENNA, as his true and lawful attorney-in-fact, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission under the Securities Act of 1933, granting unto said attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. SIGNATURE CAPACITY DATE _________ ________ ____ /s/Robert J. McKenna Chairman, President and Chief August 23, 1999 _____________________ Executive Officer (Principal Robert J. McKenna Executive Officer) and Director /s/Michael A. Simon Controller (Principal Financial August 24, 1999 _____________________ Officer and Principal Michael A. Simon Accounting Officer) /s/Robert D. Batting Director August 23, 1999 _____________________ Robert D. Batting /s/Robert T. Brady Director August 23, 1999 _____________________ Robert T. Brady /s/Randall L. Clark Director August 23, 1999 _____________________ Randall L. Clark /s/Terry M. Manon Director August 23, 1999 _____________________ Terry M. Manon - 8 - INDEX TO EXHIBITS Exhibit Page Number _______ ___________ 5 - Opinion of Phillips, Lytle, Hitchcock, Blaine & Huber LLP as to the legality of the securities registered. 23(a) - Consent of PricewaterhouseCoopers LLP 23(b) - Consent of Phillips, Lytle, Hitchcock, Blaine & Huber LLP (included in Exhibit 5) 24 - Power of Attorney (included with signature page) - 9 - EXHIBITS 5 AND 23(b) ____________________ OPINION OF PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP AS TO THE LEGALITY OF THE SECURITIES REGISTERED - 10 - September 15, 1999 Acme Electric Corporation 400 Quaker Road East Aurora, New York 14052-2199 Re: Acme Electric Corporation - Registration Statement on Form S-8 __________________________________________________ Gentlemen: This opinion is given in connection with a Registration Statement (Form S-8) being filed by Acme Electric Corporation (the "Company") with the Securities and Exchange Commission relating to 500,000 shares of Common Stock, $1 par value ("Common Stock") to be issued pursuant to options exercised under the Acme Electric Corporation 1998 Stock Option Plan (the "Plan"). We have examined and are familiar with the Company's Certificate of Incorporation, By-laws, resolutions of its directors and other documents and corporate records and proceedings relating to the organization of the Company, proposed issuance of securities and adoption of the Plan by the Company. We have also examined such other documents and proceedings that we have considered necessary for the purpose of this opinion. Based upon such examination, we are of the opinion that: 1. The Company has been duly organized and is a validly existing corporation under the laws of the State of New York. 2. The 500,000 shares of Common Stock which may be issued by the Company have been duly authorized and, when issued in accordance with the terms of the Registration Statement and the Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. Very truly yours, PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP - 11 - EXHIBIT 23(a) _____________ CONSENT OF PricewaterhouseCoopers LLP INDEPENDENT PUBLIC ACCOUNTANTS - 12 - CONSENT OF INDEPENDENT ACCOUNTANTS __________________________________ We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 5, 1998 relating to the financial statements, which appear in the 1998 Annual Report to Shareholders of Acme Electric Corporation, which is incorporated by reference in Acme Electric Corporation's Annual Report on Form 10-K for the year ended June 30, 1998. We also consent to the incorporation by reference of our report dated August 5, 1998 relating to the financial statement/ schedules, which appears in such Annual Report on Form 10-K. /s/ PricewaterhouseCoopers LLP ______________________________ PRICEWATERHOUSECOOPERS LLP Buffalo, New York September 15, 1999 - 13 - -----END PRIVACY-ENHANCED MESSAGE-----