Registration
Number 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SUBURBAN OSTOMY SUPPLY CO., INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-2675674
(State of Incorporation) (IRS Employer Identification Number)
75 October Hill Road, Holliston, MA 01746
(Address of Principal Executive Offices)
(508) 429-1000
(Registrant's telephone number, including area code)
SUBURBAN OSTOMY SUPPLY CO., INC.
1995 Stock Option Plan
(Full title of the Plan)
James Westra, Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
l01 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(l) Per Share Price Fee(2)
Common Stock, 688,820 shares $11.3125 $7,792,276.25 $2,362
(1) Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plan to which this Registration
Statement relates.
(2) The registration fee has been calculated with respect to 688,820 shares
registered on the basis of the average of the high and low sale prices
on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") on February 14, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. 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 (prior to filing of a Post-Effective Amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold) shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 or the latest Prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, which contains either
directly or by incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been filed.
(b) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or the Prospectus referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company under the Securities Exchange
Act of 1934, including any amendment or report filed for the purpose of updating
such description.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Hutchins, Wheeler &
Dittmar, A Professional Corporation, Boston, Massachusetts. James Westra, who is
a stockholder of Hutchins, Wheeler & Dittmar, A Professional Corporation, owns
1,500 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides as follows:
"Section 67. Indemnification of directors, officers, employees and
other agents of a corporation, and persons who serve at its request as
directors, officers, employees or other agents of another organization, or who
serve at its request in any capacity with respect to any employee benefit plan,
may be provided by it to whatever extent shall be specified in or authorized by
(i) the articles of organization or (ii) a by-law adopted by the stockholders or
(iii) a vote adopted by the holders of a majority of the shares of stock
entitled to vote on the election of directors. Except as the articles of
organization or by-laws otherwise require, indemnification of any persons
referred to in the preceding sentence who are not directors of the corporation
may be provided by it to the extent authorized by the directors. Such
indemnification may include payment by the corporation of expenses incurred in
defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an undertaking by the
person indemnified to repay such payment if he shall be adjudicated to be not
entitled to indemnification under this section which undertaking may be accepted
without reference to the financial ability of such person to make repayment. Any
such indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any such employee benefit
plan.
No indemnification shall be provided for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not
limit any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or other agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization or with
respect to any employee benefit plan, against any liability incurred
by him in any such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such
liability."
Article 7 of the Amended and Restated By-laws of the Company provides
as follows:
ARTICLE 7
Indemnification of Directors and Others
Section 7.1 Definitions
For purposes of this Article 7:
(a) "Director/officer" means any person who is serving or has served as
a Director, officer, employee or other agent of the Corporation appointed or
elected by the Board of Directors or the stockholders of the Corporation, or who
is serving or has served at the request of the Corporation as a Director,
officer, trustee, principal, partner, employee or other agent of any other
corporation.
(b) "Proceeding" means any action, suit or proceeding, civil or
criminal, brought or threatened in or before any court, tribunal, administrative
or legislative body or agency.
(c) "Expense" means any fine or penalty, and any liability fixed by a
judgment, order, decree or award in a Proceeding and any professional fees and
other disbursements reasonably incurred in connection with a Proceeding.
Section 7.2 Right to Indemnification
Except as limited by law or as provided in Sections 7.3 and 7.4 of this
Article 7, each Director/officer (and his heirs and personal representatives)
shall be indemnified by the Corporation against all Expenses incurred by him in
connection with each Proceeding in which he is involved as a result of his
serving or having served as a Director/officer.
Section 7.3 Indemnification not Available
No indemnification shall be provided to a Director/officer with respect
to a Proceeding as to which it shall have been adjudicated that he did not act
in good faith in the reasonable belief that his action was in the best interests
of the Corporation.
Section 7.4 Compromise or Settlement
In the event that a Proceeding is compromised or settled so as to
impose any liability or obligation on a Director/officer or upon the
Corporation, no indemnification shall be provided as
to said Director/officer with respect to such Proceeding if such
Director/officer shall have been adjudicated not to have acted in good faith in
the reasonable belief that his action was in the best interests of the
Corporation.
Section 7.5 Advances
The Corporation shall pay sums on account of indemnification in advance
of a final disposition of a Proceeding, upon receipt of an undertaking by the
Director/officer to repay such sums if it is subsequently established that he is
not entitled to indemnification pursuant to Sections 7.3 and 7.4 hereof, which
undertaking may be accepted without reference to the financial ability of such
person to make repayment.
Section 7.6 Not Exclusive
Nothing in this Article 7 shall limit any lawful rights to
indemnification existing independently of this Article 7.
Section 7.7 Insurance
The provisions of this Article 7 shall not limit the power of the Board
of Directors to authorize the purchase and maintenance of insurance on behalf of
any Director/officer against any Expense, whether or not the Corporation would
have the power to indemnify him against such Expense under this Article 7.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Number Description
4 1995 Stock Option Plan.
5 Opinion of Hutchins, Wheeler & Dittmar, A
Professional Corporation, as to legality of shares
being registered and consent of Hutchins, Wheeler &
Dittmar, A Professional Corporation.
23 Consents of Independent Public Accountants -
included in Registration Statement under heading
"Consent of Independent Public Accountants."
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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;
(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)(l)(i) and (a)(l)(ii) do not apply if 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 section 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 section 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.
(c) The undersigned registrant hereby undertakes, that, 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 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.
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 Holliston, Massachusetts on February 6, 1997.
SUBURBAN OSTOMY SUPPLY CO., INC.
By /s/ Herbert P. Gray
Herbert P. Gray
Chief Executive Officer
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.
Signature Title Date
/s/ Herbert P. Gray Chairman of the Board February 6, 1997
Herbert P. Gray of Directors and
Chief Executive Officer
(principal executive officer)
/s/ Donald H. Benovitz President and Director February 6, 1997
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Donald H. Benovitz
/s/ Stephen N. Aschettino Vice President, Chief February 6, 1997
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Stephen N. Aschettino Financial Officer and
Treasurer (principal
financial and accounting
officer)
/s/ Martin J. Mannion Director February 6, 1997
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Martin J. Mannion
/s/ Joseph F. Trustey Director February 6, 1997
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Joseph F. Trustey
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SUBURBAN OSTOMY SUPPLY CO., INC.
(Exact name of registrant as specified in its charter)