Securities Registration: Employee Benefit Plan (s-8)
August 31 2018 - 12:45PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on August
31, 2018
Registration No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
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FORM
S-8
Registration
Statement
Under
the Securities Act of 1933
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Acme
United Corporation
(Exact
name of Registrant as specified in its charter)
Connecticut
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06-0236700
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification
Number)
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55
Walls Drive
Fairfield,
Connecticut 06824
(Address of principal executive offices, including zip code)
Acme United Corporation 2012 Employee Stock Option Plan
(Full
Title of the Plan)
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Paul
Driscoll
Vice
President, Chief Financial Officer,
Secretary
and Treasurer
55
Walls Drive
Fairfield,
Connecticut 06824
(Name
and address of agent for service
(203)
254-6060
(Telephone
number, including area code, of agent for service)
copy
to:
Merritt
A. Cole, Esq.
Earp
Cohn P.C.
123
South Broad Street, Suite 1030
Philadelphia,
Pennsylvania 19109-1022
Phone
(215) 963-9520
Fax
(215) 963-9620
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Indicate
by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller
reporting company or an emerging growth company. See definitions of “large accelerated filer”,” accelerated
filer” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of
the Exchange Act.
Large
accelerated filer [_] Accelerated filer [_] Non-accelerated filer [_] Smaller
Reporting Company [X]
Emerging
growth company [_]
CALCULATION
OF REGISTRATION FEE
Title of securities to be registered
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Amount to be registered (1)
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Proposed maximum offering price per share
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Proposed maximum aggregate offering price
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Amount of registration fee
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Common Stock, par value $2.50 per share
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185,500
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(2)
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$
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22.66
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(4)
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$
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4,203,430
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$
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523.33
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54,500
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(3)
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$
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21.38
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(5)
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$
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1,165,210
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$
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133.53
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Total:
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240,000
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|
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$
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5,368,640
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$
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656.86
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(1) Pursuant
to Rule 416 under the Securities Act of 1933 (the “Securities Act”), this Registration Statement covers, in addition
to the number of shares stated herein, an indeterminate amount of additional shares of the Company’s common stock, par value
$2.50 per share (the “Common Stock”), that may become issuable pursuant to the anti-dilution or other adjustment provisions
of the Acme United Corporation 2012 Employee Stock Option Plan, as amended (the “Employee Plan”).
(2) Consisting
of shares of Common Stock issuable upon exercise of options which have been granted under the Employee Plan.
(3) Consisting
of shares of Common Stock issuable upon exercise of options which may be granted under the Employee Plan.
(4) Determined
pursuant to 457(h)(1) under the Securities Act, based upon the exercise price of the options.
(5) Estimated pursuant to Rules 457 (c) and 457 (h)(1) under the Securities Act, solely for the purpose of calculating
the registration fee, based upon the average of the high and low prices for shares of the Common Stock reported on the NYSE Mkt
on August 24, 2018.
Explanatory Note.
The Company is filing this Registration
Statement on Form S-8 for the purpose of registering a total of 240,000 shares of Common Stock, par value $2.50 per share, of the
Company (the “Common Stock”), which consist of:
an additional 240,000 shares of Common Stock, which may be issued pursuant
to the Acme United Corporation 2012 Employee Stock Option Plan, as amended (the “Employee Plan”) and
Pursuant to Rule 416 under the Securities Act of 1933,
as amended (the “Securities Act”), this Registration Statement also covers an indeterminate amount of additional shares
of Common Stock, which may become issuable pursuant to the respective anti-dilution or other adjustment provisions of the Employee
Plan.
In accordance with Instruction E of the General Instruction to
Form S-8, the contents of the Registration Statement on Form S-8 (Reg. No. 333-206440) filed on August 31, 2017 by the Company
with the U.S. Securities and Exchange Commission (the “Commission”) relating to the Employee Plan is incorporated
by reference herein to the extent not otherwise modified or superseded by this Registration Statement.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) promulgated under the Securities Act. Such documents
need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents and the documents incorporated herein by reference pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities
Act (the "Prospectus").
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 and made a part of this Prospectus:
(a)
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our Annual Report on Form 10-K for the fiscal year ended December
31, 2017, filed on March 15, 2018;
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(b)
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(i)
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our Quarterly Reports
on Form 10-Q for the quarters ended March 31, 2018 and June 30, 2018, filed on May 10, 2018, and August 9, 2018, respectively.
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(ii)
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our Current Reports on Form 8-K filed
on February 27, April 20, April 24, and July 23, 2018 (other than the portions of those documents not deemed to be filed); and
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(c)
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the description of our Common Stock contained in our Current
Report on Form 8-K filed on July 8, 2005, including any amendment to that form that we may file in the future, for the purpose
of updating the description of our Common Stock.
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All documents that we file pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) subsequent to the effective date of this Registration
Statement, prior to the filing of a post-effective amendment which indicates that all securities offered by this Prospectus have
been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Prospectus
and to be a part of this prospectus from the date of filing of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated
by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute
a part of this Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Connecticut General Statutes ("CGS") Sections 33-770 through
33-779 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, arbitrative or investigative and whether formal or informal.
The Company's Restated Certificate of Incorporation provides that
the Company shall indemnify an individual who is a party to a proceeding because he is a director or officer of the corporation
against liability 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 the CGS) 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 the CGS for the illegal payment of dividends.
The Registrant has obtained directors' and officers' reimbursement
and liability insurance against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit No.
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Identification of Exhibit
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5.1
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Opinion of Brody Wilkinson PC
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23.1
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Consent
of Marcum LLP, independent registered public accounting firm
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23.3
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Consent of Brody Wilkinson PC (included in Exhibit 5.1)
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24.1
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Power of attorney (included on signature page of this Registration Statement)
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4.02(1)
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2012 Employee Stock Option Plan
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4.03(2)
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Amendment to the 2012 Employee Stock Option Plan
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4.04(3)
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Non-Qualified Stock Option Agreement
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(1) Incorporated by reference to Exhibit 10.1 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, filed with the Commission on August 14,
2012, except that the total number of shares of Common Stock authorized to be issued under the Employee Plan pursuant to
Section 3(a) thereof shall be 1,180,000 shares.
(2) Incorporated by reference Exhibit 10.1 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the Commission on May 13,
2016.
(3) Incorporated by reference to Exhibit 10.2 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the Commission on May 13,
2016.
Item 9. Undertakings
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this 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 low or high end of the estimated maximum offering range may be reflected
in the form of a 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;
(c) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply
if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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.
(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.
(4) That, for the purposes of determining any liability under the
Securities 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 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.
(5) Insofar as indemnification for liabilities arising under the
Securities 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 Commission such indemnification is against public policy
as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements 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 the 31st day of August, 2018.
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ACME UNITED CORPORATION
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By:
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/s/ Walter C. Johnsen
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Walter C. Johnsen, Chairman of the Board and Chief Executive
Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Walter C. Johnsen and Paul Driscoll, or either of them, as true and lawful attorneys-in-fact
and agents with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities
to sign the Registration Statement filed herewith and any or all amendments to said Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents the full power and authority to do and perform each and every act and thing requisite and necessary
to be done in and about the foregoing, as to all intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agents or any of them, 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 indicated below on the 31st day of August, 2018:
Signature
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Title
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/s/ Walter C. Johnsen
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Walter C. Johnsen
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Chairman of the Board, Chief Executive Officer and Director
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/s/ Brian S. Olschan
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Brian S. Olschan
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President, Chief Operating Officer and Director
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/s/ Paul Driscoll
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Paul Driscoll
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Vice President, Chief Financial Officer, Secretary and Treasurer
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/s/ Rex L. Davidson
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Rex L. Davidson
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Director
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/s/ Richmond Y. Holden, Jr.
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Richmond Y. Holden, Jr.
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Director
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/s/ Susan H. Murphy
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Susan H. Murphy
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Director
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/s/ Stevenson E. Ward III
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Stevenson E. Ward III
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Director
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Exhibit Index
Exhibit No.
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Identification of Exhibit
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5.1
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Opinion of Brody Wilkinson PC
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23.1
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Consent
of Marcum LLP, independent registered public
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23.3
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Consent of Brody Wilkinson PC (included in Exhibit 5.1)
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24.1
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Power of attorney (included on signature page of this Registration Statement)
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4.02(1)
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2012 Employee Stock Option Plan
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4.03(2)
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Amendment to the 2012 Employee Stock Option Plan
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4.04(3)
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Non-Qualified Stock Option Agreement
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(1) Incorporated by reference to Exhibit 10.1 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, filed with the Commission on August 14,
2012, except that the total number of shares of Common Stock authorized to be issued under the Employee Plan pursuant to
Section 3(a) thereof shall be 1,180,000 shares.
(2) Incorporated by reference Exhibit 10.1 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the Commission on May 13,
2016.
(3) Incorporated by reference to Exhibit 10.2 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the Commission on May 13,
2016.
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