<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 1997
REGISTRATION NO. 333-9761
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
------------------------
AMENDMENT NO. 6
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SUPERIOR SUPPLEMENTS, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 2833 11-3320172
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF ORGANIZATION) CLASSIFICATION CODE NO.) IDENTIFICATION NO.)
</TABLE>
------------------------
270 OSER AVENUE
HAUPPAUGE, NEW YORK 11788
(516) 231-0783
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES AND PRINCIPAL PLACE
OF BUSINESS)
------------------------
LAWRENCE D. SIMON
PRESIDENT
270 OSER AVENUE
HAUPPAUGE, NEW YORK 11788
(516) 231-0783
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
Copies to:
<TABLE>
<S> <C>
STEVEN F. WASSERMAN, ESQ. STEVEN A. MORSE, ESQ.
BERNSTEIN & WASSERMAN, LLP LESTER MORSE, P.C.
950 THIRD AVENUE 111 GREAT NECK ROAD
NEW YORK, NY 10022 GREAT NECK, NY 11021
(212) 826-0730 (516) 487-1446
(212) 371-4730 (FAX) (516) 487-1452 (FAX)
</TABLE>
------------------------
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as reasonably
practicable after the effective date of this Registration Statement.
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, check the following box: /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the 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 statement 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. / /
------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In connection with the Offering, the Underwriters agreed to indemnify the
Company, its directors, and each person who controls it within the meaning of
Section 15 of the Act with respect to any statement in or omission from the
registration statement or the Prospectus or any amendment or supplement thereto
if such statement or omission was made in reliance upon information furnished in
writing to the Company by the Underwriters specifically for or in connection
with the preparation of the registration statement, the prospectus, or any such
amendment or supplement thereto.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of the performance of their duties as directors and
officers provided that this provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
arising under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's by-laws, any agreement, vote of Stockholders or otherwise.
Article Ninth of the Company's Certificate of Incorporation eliminates the
personal liability of directors to the fullest extent permitted by Section
102(b)(7) of the Delaware General Corporation Law.
The effect of the foregoing is to require the Company to the extent
permitted by law to indemnify the officers and directors of the Company for any
claim arising against such persons in their official capacities if such person
acted in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
The Company does not currently have any liability insurance coverage for
its officers and directors.
ITEMS 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this Offering are as follows:
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<S> <C>
SEC filing fee*........................... $ 10,000
NASD filing fee........................... $ 2,000
Accounting fees and expenses*............. $ 75,000
Legal fees and expenses*.................. $175,000
Blue Sky fees and expenses*............... $ 55,000
Printing and engraving*................... $ 65,000
Transfer Agent's and Registrar's fees*.... $ 4,000
Miscellaneous expenses*................... $ 39,000
--------
Total..................................... $425,000
--------
--------
</TABLE>
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* Estimated
II-1
<PAGE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
The following information sets forth all securities of the Company sold by
it since inception, which securities were not registered under the Securities
Act of 1933, as amended:
In April, 1996, the Company issued (i) (a) 3,000,000 shares of Common Stock
to PMF, Inc., a company wholly-owned and controlled by Barry Gersten, and (b)
3,000,000 Class A Warrants for a cash consideration of $50,000 and (ii)
5,000,000 shares of Preferred Stock to PMF, Inc. for a cash consideration of
$5,000.
In May, 1996, the Company issued 500,000 shares of Common Stock to Compare
Generiks, Inc. ('CGI') (i) for a cash consideration of $100,000, and (ii) in
exchange for the issuance of 200,000 shares of common stock of CGI.
In May, 1996, the Company borrowed an aggregate of $300,000 from Dune
Holdings, Inc. and Clinthill Investment Ltd., two (2) unaffiliated lenders (the
'Bridge Lenders'). In exchange for making loans to the Company, each Bridge
Lender received two promissory notes (the 'Bridge Notes'). Certain of the Bridge
Notes are in the aggregate principal amount of $200,000 (the 'Principal Bridge
Notes') and the other Bridge Notes are in the aggregate principal amount equal
to $100,000 (the 'Convertible Bridge Notes'). Each of the Bridge Note bears
interest at the rate of eight percent (8%) per annum. The Bridge Notes are due
and payable upon the earlier of (i) April 30, 1997 and (ii) the closing of an
initial underwritten public offering of the Company's securities. In addition,
each Convertible Bridge Note converts into a number of Class A Warrants equal to
ten (10) times the principal amount of such Convertible Bridge Note upon
consummation of the Offering. The Company entered into the bridge financing
transactions because it required additional financing and no other sources of
financing were available to the Company at that time. Further, the Company
agreed to register the Class A Warrants issuable upon conversion of the
Convertible Bridge Notes, as well as the shares of Common Stock issuable upon
exercise of the Class A Warrants in the first registration statement filed by
the Company following the date of the loan. In order to expedite NASD approval
of the Offering, in February 1997, the Company repaid its obligations under the
Principal Bridge Notes and the Convertible Bridge Notes. As a result, the
holders of the Convertible Bridge Notes have forfeited their right to convert
such notes into Class A Warrants.
The Company has relied on Section 4(2) of the Securities Act of 1933, as
amended, and the provisions of Regulation D promulgated thereunder for its
private placement exemption, such that the sales of the securities were
transactions by an issuer not involving any public offering.
Reference is also made hereby to 'Certain Transactions,' 'Dilution,'
'Principal Stockholders' and 'Description of Securities' in the Prospectus for
more information with respect to the previous issuance and sale of the Company's
securities.
All of the aforesaid securities have been appropriately marked with a
restricted legend and are 'restricted securities' as defined in Rule 144 of the
rules and the regulations of the Securities and Exchange Commission, Washington
D.C. 20549. All of the aforesaid securities were issued for investment purposes
only and not with a view to redistribution, absent registration. All of the
aforesaid persons have been fully informed and advised concerning the
Registrant, its business, financial and other matters. Transactions by the
Registrant involving the sales of these securities set forth above were issued
pursuant to the 'private placement' exemptions under the Securities Act of 1933,
as amended, as transactions by an issuer not involving any public offering. The
Registrant has been informed that each person is able to bear the economic risk
of his investment and is aware that the securities were not registered under the
Securities Act of 1933, as amended, and cannot be re-offered or re-sold until
they have been so registered or until the availability of an exemption
therefrom. The Transfer Agent and registrar of the Registrant will be instructed
to mark 'stop transfer' on its ledgers to assure that these securities will not
be transferred absent registration or until the availability of an exemption
therefrom is determined.
II-2
<PAGE>
ITEM 27. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
1.01***** -- Form of Underwriting Agreement.
1.02***** -- Form of Agreement Among Underwriters.
1.03**** -- Form of Consulting Agreement.
1.04**** -- Form of Selected Dealer Agreement.
1.05***** -- Form of Warrant Exercise Fee Agreement.
3.01* -- Certificate of Incorporation of the Company dated April 24, 1996.
3.02* -- By-Laws of the Company.
3.03* -- Form of Certificate of Designation of Series A Preferred Stock.
4.01** -- Specimen Certificate for shares of Common Stock.
4.02*** -- Specimen Certificate for shares of Series A Preferred Stock.
4.03** -- Specimen Certificate for Class A Redeemable Common Stock Purchase
Warrant.
4.04**** -- Form of Warrant Agreement by and among the Company and American
Stock Transfer & Trust Company.
4.05***** -- Form of Underwriters' Unit Purchase Warrant.
5.01 -- Opinion of Bernstein & Wasserman, counsel to the Company.
9.01** -- Form of Voting Trust Agreement.
10.01* -- Supply Agreement between the Company and PDK dated as of May 14,
1996.
10.02* -- Supply Agreement between the Company and CGI dated as of May 31,
1996.
10.03** -- Lease between the Company and Park Associates dated as of May 1,
1996.
10.04* -- Subscription Agreement between the Company and CGI dated as of May
31, 1996.
10.05* -- Employment Agreement between the Company and Lawrence D. Simon
dated as of May 1, 1996.
10.06* -- Form of May, 1996 Bridge Loan Agreements.
10.07* -- Revolving Credit Agreement between the Company and Dune dated May
31, 1996.
10.08* -- Promissory Note in favor of PMF dated June 26, 1996.
10.09* -- 1996 Stock Plan.
23.01 -- Consent of Bernstein & Wasserman (to be included in Exhibit 5.01).
23.02 -- Consent of Holtz Rubenstein & Co., LLP
</TABLE>
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* Previously filed on August 8, 1996 as an exhibit to the Company's
Registration Statement on Form SB-2 and incorporated herein by reference.
** Previously filed on October 24, 1996 as an exhibit to Amendment No. 1 to
the Company's Registration Statement on Form SB-2 and incorporated herein
by reference.
*** Previously filed on December 6, 1996 as an exhibit to Amendment No. 2 to
the Company's Registration Statement on Form SB-2 and incorporated herein
by reference.
**** Previously filed on February 6, 1997 as an exhibit to Amendment No. 4 to
the Company's Registration Statement on Form SB-2 and incorporated herein
by reference.
***** Previously filed on February 21, 1997 as an exhibit to Amendment No. 5 to
the Company's Registration Statement on Form SB-2 and incorporated herein
by reference.
ITEM 28. UNDERTAKINGS.
(a) Rule 415 Offering
The undersigned Registrant will:
1. File, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the
II-3
<PAGE>
ITEM 28. UNDERTAKINGS.--(CONTINUED)
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
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
percent change in the maximum aggregate offering price set forth in the
'Calculation of Registration Fee' table in the effective registration
statement;
(iii) Include any additional or changed material information on the
plan of distribution.
2. For determining liability under the Act, treat each such
post-effective amendment as a new registration statement of the securities
offered, and the Offering of such securities at that time shall be deemed
to be the initial bona fide offering.
3. File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the Offering.
(b) Equity Offerings of Nonreporting Small Business Issuers
The undersigned Registrant will provide to the Underwriters at the closing
specified in the underwriting agreement certificates in such denominations and
registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
(c) Indemnification
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or controlling persons of the Registrant
pursuant to the provisions referred to in Item 22 of this Registration Statement
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.
(d) Rule 430A
The undersigned Registrant will:
1. For determining any liability under the Act, treat the information
omitted from the form of Prospectus filed as part of this Registration Statement
in reliance upon Rule 430A and contained in the form of a prospectus filed by
the small business issuer under Rule 424(b)(1) or (4) or 497(h) under the Act as
part of this Registration Statement as of the time the Commission declared it
effective.
2. For any liability under the Act, treat each post-effective amendment
that contains a form of prospectus as a new registration statement for the
securities offered in the Registration Statement, and that the Offering of the
securities at that time as the initial bona fide Offering of those securities.
II-4
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the Registrant, certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form SB-2 and authorized this
Registration Statement to be signed on its behalf by the undersigned, in New
York, New York on February 24, 1997.
SUPERIOR SUPPLEMENTS, INC.
By: /s/ LAWRENCE D. SIMON
----------------------------------
Lawrence D. Simon
President, Chairman,
Financial Officer, Principal
Accounting
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----------------
<S> <C> <C>
/s/ LAWRENCE D. SIMON President, Chairman, February 24, 1997
- ------------------------------ Chief Financial Officer,
Lawrence D. Simon Principal Accounting
Officer and Director
/s/ REGINALD SPINELLO Director February 24, 1997
- ------------------------------
Reginald Spinello
/s/ MATTHEW L. HARRITON Director, Secretary February 24, 1997
- ------------------------------
Matthew L. Harriton
/s/ STEVEN F. WASSERMAN Director February 24, 1997
- ------------------------------
Steven F. Wasserman
/s/ DR. DANIEL DURCHSLAG Director February 24, 1997
- ------------------------------
Dr. Daniel Durchslag
</TABLE>
<PAGE>
BERNSTEIN & WASSERMAN, LLP
ATTORNEYS AT LAW
950 THIRD AVENUE
NEW YORK, NY 10022-2705
Hartley T. Bernstein
Steven F. Wasserman -----
Alan N. Forman
TELEPHONE (212) 826-0730
-----
TELECOPIER (212) 371-4730
Stewart E. Eichner
Peri Erlanger**
Anjanette Gold
Barry R. Lax
Stuart Neuhauser
Edward M. Slezak*
-----
February 24, 1997
* Also Member of New Jersey Bar
** Also Member of Massachusetts Bar
Board of Directors
Superior Supplements, Inc.
270 Oser Avenue
Hauppauge, New York 11788
Re: Superior Supplements, Inc.
Registration Statement on Form SB-2
------------------------------------------
Gentlemen:
We have acted as counsel for Superior Supplements, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company of a registration statement (the "Registration Statement") on Form
SB-2, File No. 333-9761, under the Securities Act of 1933, relating to the
public offering (a) by the Company of 250,000 units (the "Units"), each
consisting of two (2) shares of the Company's Common Stock, par value $.0001 per
share (the "Common Stock") and two (2) Class A Redeemable Common Stock Purchase
Warrants (the "Class A Warrants"), and (b) by a selling stockholder (the
("Selling Securityholder") of 250,000 Units, each of which is identical to the
Units offered by the Company (the "Selling Securityholder's Securities"). The
offering also involves the grant by the Selling Securityholder to the
Underwriters of an option to purchase an additional 75,000 of such Units to
cover over-allotments in connection with the offering and the sale by the
Company to the Underwriter of an option (the "Unit Purchase Option") to purchase
up to 50,000 of such Units.
We have examined the Certificate of Incorporation and the By-Laws of
the Company, the minutes of the various meetings and consents of the Board of
Directors of the Company, drafts of the Underwriting Agreement relating to the
offering of the Units, drafts of the Warrant Agreement and Unit Purchase Option,
draft forms of certificates representing the Common Stock and the Class A
Warrants, originals or copies of such records of the Company, agreements,
certificates of public officials, certificates of officers and representatives
of the Company and others, and such other documents, certificates, records,
authorizations, proceedings, statutes and judicial decisions as we have deemed
necessary to form the basis of the opinion expressed below. In such examination,
we have assumed the genuiness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies thereof. As to various questions of fact
material to such opinion, we have relied upon statements and certificates of
officers and representatives of the Company and others.
<PAGE>
BERNSTEIN & WASSERMAN, LLP
Board of Directors
February 24, 1997
Page 2
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Based on the foregoing, we are of the opinion that:
1. All shares of Common Stock included in the Units have been duly
authorized and, when issued and sold in accordance with the Registration
Statement, will be validly issued, fully paid and nonassessable.
2. The Class A Warrants and the Unit Purchase Option have been duly
authorized and, when issued and sold in accordance with the Registration
Statement, will be validly issued, fully paid and nonassessable.
3. The shares of Common Stock and Class A Warrants included in the
Selling Securityholder's Securities have been duly authorized, validly issued,
fully paid and nonassessable; and, when sold in accordance with the Registration
Statement will continue to be duly authorized, validly issued, fully paid and
nonassessable.
4. The shares of Common Stock issuable upon exercise of the Class A
Warrants, the Unit Purchase Option and the Class A Warrants included in the
Selling Securityholder's Securities have been duly authorized and reserved for
issuance and, when issued in accordance with the terms of the Class A Warrants,
the Unit Purchase Option or the Class A Warrants included in the Selling
Securityholder's Securities, as the case may be, will be duly authorized,
validly issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement, the
Prospectus and the Selling Securityholder Prospectus as attorneys who have
passed upon legal matters in connection with the offering of the securities
offered thereby under the caption "Legal Matters."
We further consent to your filing a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
BERNSTEIN & WASSERMAN, LLP
B&W/jm
<PAGE>
EXHIBIT 23.02
[HOLTZ RUBENSTEIN & CO., LLP LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement of Superior Supplements,
Inc. on Amendment No. 6 to Form SB-2 of our report on Superior Supplements, Inc.
dated July 11, 1996, appearing in the Prospectus which is part of this
Registration Statement.
We also consent to the reference to us under the headings 'Selected Financial
Data' and 'Experts' in such Prospectus.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
February 24, 1997
