AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1996
REGISTRATION NO. 333-6621
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUBURBAN OSTOMY SUPPLY CO., INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 5047 04-2675674
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
75 OCTOBER HILL ROAD
HOLLISTON, MA 01746
(508) 429-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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HERBERT P. GRAY
CHIEF EXECUTIVE OFFICER
SUBURBAN OSTOMY SUPPLY CO., INC.
75 OCTOBER HILL ROAD
HOLLISTON, MA 01746
(508) 429-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JAMES WESTRA, ESQUIRE JOHN J. HUBER, ESQUIRE
HUTCHINS, WHEELER & DITTMAR LATHAM & WATKINS
A PROFESSIONAL CORPORATION SUITE 1300
101 FEDERAL STREET 1001 PENNSYLVANIA AVENUE, N.W. WASHINGTON,
BOSTON, MASSACHUSETTS 02110 DC 20004
(617) 951-6600 (202) 637-2200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to a dividend or interest reinvestment plan, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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[PART II OF THE REGISTRATION STATEMENT IS BEING FILED WITH THIS AMENDMENT NO. 3
SOLELY FOR THE PURPOSE OF FILING EXHIBITS 3.3, 3.4 AND 4.1]
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses (other than underwriting discounts and commissions) payable in
connection with the sale of the Common Stock offered hereby (including the
Common Stock which may be issued pursuant to an over-allotment option) are as
follows:
AMOUNTS
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SEC Registration fee........................................... $ 21,652.00
NASD filing fee................................................ $ 6,753.00
Nasdaq National Market fee..................................... $ 46,700.00
Printing Expenses.............................................. $150,000.00
Legal fees and expenses........................................ $300,000.00
Accounting Fees and expenses................................... $125,000.00
Blue sky fees and expenses (including legal fees and ex-
penses)....................................................... $ 25,000.00
Transfer agent and registrar fees and expenses................. $ 20,000.00
Miscellaneous.................................................. $104,895.00
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Total...................................................... $800,000.00
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The Company will bear all expenses shown above.
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* All amounts are estimated, except SEC Registration, NASD and Nasdaq National
Market Fees.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of Chapter 156B of the Massachusetts Business Corporation Law,
which is applicable to the Company, provides as follows:
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
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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.
In addition, pursuant to its Articles of Organization and Bylaws, the
Company shall indemnify its directors and officers against expenses (including
judgments or amounts paid in settlement) incurred in any action, civil or
criminal, to which any such person is a party by reason of any alleged act or
failure to act in his capacity as such, except as to a matter as to which such
director or officer shall have been finally adjudged not to have acted in good
faith in the reasonable belief that his action was in the best interest of the
corporation.
The Underwriting Agreement provides that the Underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of the Company against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the "Act"). Reference is made to
the form of Underwriting Agreement filed as Exhibit 1 hereto.
The Company maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers and has entered into
indemnification agreements with its directors and certain of its officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, Suburban has issued the following securities,
none of which have been registered under the Securities Act of 1933, as
amended (the "Act"):
(a) On July 3, 1995, in connection with the recapitalization of the
Company, the Company sold: (i) an aggregate of 4,340,000 shares (after
giving effect to the 100 for 1 Common Stock split effected July 3, 1995,
the 50 for 1 Common Stock split effected April 10, 1996 and the 3.1 for 1
Common Stock split effected June 21, 1996) to Summit Ventures, Summit
Investors, Summit Debt Fund and BSC for an aggregate purchase price of
$100,000; and (ii) an aggregate of 66,500 shares of its Redeemable
Preferred Stock to Summit Partners for an aggregate consideration of
$6,650,000. In connection with the July 3, 1995 recapitalization, the
Company also issued $9,250,000 in principal amount of Summit Notes and the
Management Notes. Finally, in connection with the July 3, 1995
recapitalization, the Company granted to certain officers of the Company
options to purchase 620,000 (post-splits) shares of its Common Stock.
(b) In connection with the acquisition of St. Louis Ostomy the Company
issued the St. Louis Note.
(c) On October 12, 1995 and April 31, 1996, the Company issued an
aggregate of 23,250 shares (post-splits) of Common Stock upon the exercise
by Mr. Manos of option to purchase such shares, at exercise price of $0.81
per share (post-splits).
(d) On October 31, 1995, the Company granted to various employees options
to purchase an aggregate of 29,450 shares (post-splits) pursuant to the
Company's 1995 Stock Option Plan.
(e) On January 22, 1996, the Company issued the Bank Warrant.
ITEM 16. EXHIBITS
Exhibits:
1.1 Form of Underwriting Agreement
3.1 Restated Articles of Organization, as amended
3.2 Bylaws
*3.3 Restated Articles of Organization, as amended
*3.4 Amended and Restated Bylaws
*4.1 Specimen stock certificate representing shares of Common Stock
5.1 Form of Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to the legality of the securities being registered
10.1 Stock Purchase and Redemption Agreement, among the Company, Summit,
BSC, the Management Stockholders and Melvin Aronson, dated July 3, 1995
10.2 Subordinated Debenture Purchase Agreement among the Company, Summit
Debt and Summit Investors, dated July 3, 1995
10.3 Shareholders' Agreement among the Company, Summit, BSC, the Management
Stockholders and Melvin Aronson, dated July 3, 1995
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10.4 Registration Rights Agreement among the Company, Summit, BSC, the
Management Stockholders and Melvin Aronson, dated July 3, 1995
10.5 $6,615,000 12% Subordinated Debenture of the Company issued to Summit
Debt, dated July 3, 1995
10.6 $135,000 12% Subordinated Debenture of the Company issued to Summit
Investors, dated July 3, 1995
10.7 Suburban Ostomy Supply Co., Inc. Stock Option Plan
10.8 Stock Option Agreement with Herbert Grey, dated July 3, 1995
10.9 Stock Option Agreement with Donald Benovitz, dated July 3, 1995
10.10 Stock Option Agreement with Stephen N. Aschettino, dated July 3, 1995
10.11 Stock Option Agreement with John Manos, dated July 3, 1995
10.12 Employment Agreement with Herbert Gray, dated July 3, 1995
10.13 Employment Agreement with Donald Benovitz, dated July 3, 1995
10.14 Employment Agreement with Stephen N. Aschettino, dated July 3, 1995
10.15 Employment Agreement with Patrick Bohan, dated July 3, 1995
10.16 Employment Agreement with John Manos, dated July 3, 1995
10.17 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Melvin Aronson, dated July 3, 1995
10.18 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Herbert P. Gray, dated July 3, 1995
10.19 $375,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Donald Benovitz, dated July 3, 1995
10.20 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Stephen N. Aschettino, dated July 3, 1995
10.21 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Patrick Bohan, dated July 3, 1995
10.22 Credit Agreement between the Company and The First National Bank of
Boston, dated July 3, 1995
10.23 First Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated January 22, 1996
10.24 Second Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated June 14, 1996
10.25 Proposed terms and conditions of Amended Credit Facility from the Bank
10.26 Warrant to purchase shares of Common Stock issued to the Bank, dated
January 22, 1996
10.27 Stock Purchase Agreement relating to the Purchase of St. Louis Ostomy
by the Company, dated January 22, 1996
10.28 Non-Competition Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.29 $1,235,000 10% Subordinated Promissory Note of the Company issued to
Michael J. Quinn, dated January 22, 1996
10.30 Employment Letter Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.31 Stock Purchase Agreement relating to the Purchase of Patient-Care by
the Company, dated June 14, 1996
10.32 Escrow Agreement among the Company and the Stockholders of Patient-
Care, dated June 14, 1996
10.33 Non-Competition Agreement by Nate Spunt for the benefit of the Company
and Patient-Care, dated June 14, 1996
10.34 Employment Agreement between Patient-Care and John Somers, dated June
14, 1996
10.35 UPS Ground Incentive Program Contract Carrier Agreement between the
Company and UPS, dated February 13, 1995
10.36 Letter Agreement between the Company and UPS, dated August 23, 1995
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10.37 UPS Consignee Billing Contract Courier Agreement between the Company
and UPS, dated September 23, 1995
10.38 Lease of New Englander Industrial Park between the Company and GBA
Realty Trust, dated August 1991
10.39 Lease and Agreement between the Company and GBA Realty Corp., dated
August 1, 1993
10.40 Lease Agreement between the Company and Suburban Grayson Atlanta
Partnership, dated August 1, 1986
10.41 Lease Agreement between the Company and Christmas Joint Venture,
dated July 1, 1994
10.42 Single Tenant Industrial Lease between the Company and Watson Land
Company, dated August 18, 1994
10.43 Agreement between the Company and Hollister Incorporated, as amended,
dated March 16, 1984
11.1 Earnings Per Share Computations
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation
(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule
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* Filed with this Amendment No. 3.
FINANCIAL STATEMENT SCHEDULES.
The following financial statement schedule of the Company is furnished at
the indicated page:
Report of Independent Public Accountants (Page S-1)
Schedule II--Valuation and Qualifying Accounts (Page S-2)
All other schedules not listed are omitted because of the absence of
conditions under which they are required.
ITEM 17. UNDERTAKINGS
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.
The undersigned registrant hereby undertakes that: (1) For purposes of
determining any liability under the Securities Act, the information omitted
from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of the time
it was declared effective; and (2) For the purpose of determining any
liability under the Securities Act, each post-effective amendment that
contains a form of prospectus 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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to provisions described in Item 14 above, 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.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-1 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT ON FORM S-1 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN BOSTON, MASSACHUSETTS, ON OCTOBER 9,
1996.
Suburban Ostomy Supply Co., Inc.
By: /s/ Herbert P. Gray
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HERBERT P. GRAY CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
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/s/ Herbert P. Gray Chairman of the October 9, 1996
- ------------------------------------ Board of Directors
HERBERT P. GRAY and Chief
Executive Officer
/s/ Donald H. Benovitz Director, President October 9, 1996
- ------------------------------------ and Chief
DONALD H. BENOVITZ Operating Officer
/s/ Stephen N. Aschettino Vice President, October 9, 1996
- ------------------------------------ Treasurer and
STEPHEN N. ASCHETTINO Clerk (principal
accounting
officer)
/s/ Martin J. Mannion* Director October 9, 1996
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MARTIN J. MANNION
/s/ Joseph F. Trustey* Director October 9, 1996
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JOSEPH F. TRUSTEY
* under power of attorney
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EXHIBIT INDEX
Exhibits:
1.1 Form of Underwriting Agreement
3.1 Restated Articles of Organization, as amended
3.2 Bylaws
*3.3 Restated Articles of Organization, as amended
*3.4 Amended and Restated Bylaws
*4.1 Specimen stock certificate representing shares of Common Stock
5.1 Form of Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to the legality of the securities being registered
10.1 Stock Purchase and Redemption Agreement, among the Company, Summit,
BSC, the Management Stockholders and Melvin Aronson, dated July 3,
1995
10.2 Subordinated Debenture Purchase Agreement among the Company, Summit
Debt and Summit Investors, dated July 3, 1995
10.3 Shareholders' Agreement among the Company, Summit, BSC, the Management
Stockholders and Melvin Aronson, dated July 3, 1995
10.4 Registration Rights Agreement among the Company, Summit, BSC, the
Management Stockholders and Melvin Aronson, dated July 3, 1995
10.5 $6,615,000 12% Subordinated Debenture of the Company issued to Summit
Debt, dated July 3, 1995
10.6 $135,000 12% Subordinated Debenture of the Company issued to Summit
Investors, dated July 3, 1995
10.7 Suburban Ostomy Supply Co., Inc. Stock Option Plan
10.8 Stock Option Agreement with Herbert Grey, dated July 3, 1995
10.9 Stock Option Agreement with Donald Benovitz, dated July 3, 1995
10.10 Stock Option Agreement with Stephen N. Aschettino, dated July 3, 1995
10.11 Stock Option Agreement with John Manos, dated July 3, 1995
10.12 Employment Agreement with Herbert Gray, dated July 3, 1995
10.13 Employment Agreement with Donald Benovitz, dated July 3, 1995
10.14 Employment Agreement with Stephen N. Aschettino, dated July 3, 1995
10.15 Employment Agreement with Patrick Bohan, dated July 3, 1995
10.16 Employment Agreement with John Manos, dated July 3, 1995
10.17 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Melvin Aronson, dated July 3, 1995
10.18 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Herbert P. Gray, dated July 3, 1995
10.19 $375,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Donald Benovitz, dated July 3, 1995
10.20 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Stephen N. Aschettino, dated July 3, 1995
10.21 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Patrick Bohan, dated July 3, 1995
10.22 Credit Agreement between the Company and The First National Bank of
Boston, dated July 3, 1995
10.23 First Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated January 22, 1996
10.24 Second Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated June 14, 1996
10.25 Proposed terms and conditions of Amended Credit Facility from the Bank
10.26 Warrant to purchase shares of Common Stock issued to the Bank, dated
January 22, 1996
10.27 Stock Purchase Agreement relating to the Purchase of St. Louis Ostomy
by the Company, dated January 22, 1996
10.28 Non-Competition Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.29 $1,235,000 10% Subordinated Promissory Note of the Company issued to
Michael J. Quinn, dated January 22, 1996
10.30 Employment Letter Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.31 Stock Purchase Agreement relating to the Purchase of Patient-Care by
the Company, dated June 14, 1996
10.32 Escrow Agreement among the Company and the Stockholders of Patient-
Care, dated June 14, 1996
10.33 Non-Competition Agreement by Nate Spunt for the benefit of the
Company and Patient-Care, dated June 14, 1996
10.34 Employment Agreement between Patient-Care and John Somers, dated June
14, 1996
10.35 UPS Ground Incentive Program Contract Carrier Agreement between the
Company and UPS, dated February 13, 1995
10.36 Letter Agreement between the Company and UPS, dated August 23, 1995
10.37 UPS Consignee Billing Contract Courier Agreement between the Company
and UPS, dated September 23, 1995
10.38 Lease of New Englander Industrial Park between the Company and GBA
Realty Trust, dated August 1991
10.39 Lease and Agreement between the Company and GBA Realty Corp., dated
August 1, 1993
10.40 Lease Agreement between the Company and Suburban Grayson Atlanta
Partnership, dated August 1, 1986
10.41 Lease Agreement between the Company and Christmas Joint Venture,
dated July 1, 1994
10.42 Single Tenant Industrial Lease between the Company and Watson Land
Company, dated August 18, 1994
10.43 Agreement between the Company and Holister Incorporated, as amended,
dated March 16, 1984
11.1 Earnings Per Share Computations
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation
(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule
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* Filed with this Amendment No. 3.