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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GRAHAM-FIELD HEALTH PRODUCTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 11-2578230
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
</TABLE>
400 RABRO DRIVE EAST
HAUPPAUGE, NEW YORK 11788
(516) 582-5900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
IRWIN SELINGER
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
GRAHAM-FIELD HEALTH PRODUCTS, INC.
400 RABRO DRIVE EAST
HAUPPAUGE, NEW YORK 11788
(516) 582-5900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
RICHARD S. KOLODNY
VICE PRESIDENT, GENERAL COUNSEL
GRAHAM-FIELD HEALTH PRODUCTS, INC.
400 RABRO DRIVE EAST
HAUPPAUGE, NEW YORK 11788
(516) 582-5900
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, 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. [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. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT AGGREGATE PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED TO BE REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.025 Par Value....... 1,260,000 $14.21875 $17,915,625 $5,285.11
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) based on average high and low prices for the
Company's Common Stock on the New York Stock Exchange consolidated reporting
system on January 26, 1998.
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
SUBJECT TO COMPLETION, DATED JANUARY 30, 1998
PROSPECTUS
GRAHAM-FIELD HEALTH PRODUCTS, INC.
1,260,000 SHARES
COMMON STOCK
------------------------
The 1,260,000 shares of the common stock, par value $.025 per share (the
"Common Stock"), of Graham-Field Health Products, Inc. (the "Company"), offered
hereby are being sold by the holders of the Common Stock named herein under
"Selling Stockholders" (the "Selling Stockholders"). The outstanding Common
Stock of the Company is, and the Common Stock offered hereby will be, listed on
the New York Stock Exchange (the "NYSE"). On January 29, 1998, the last reported
sale price of the Common Stock on the NYSE was $16.0625 per share.
------------------------
The Company will not receive any of the proceeds from the sale of the
Common Stock offered hereby. Any or all of the Common Stock covered by this
Prospectus may be sold, from time to time, by means of the transactions
described under "Plan of Distribution" below.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute any offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
THE DATE OF THIS PROSPECTUS IS JANUARY 30, 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549 and at its regional offices at
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7 World
Trade Center, Suite 1300, New York, New York 10048. Copies of such materials can
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, on payment of prescribed charges. The
Commission maintains a Web site (http://www.sec.gov) that contains reports,
proxy and information statements and other information filed by the Company with
the Commission through its Electronic Data Gathering Analysis and Retrieval
(EDGAR) System. Such reports, proxy statements and other information concerning
the Company can also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the shares of Common Stock, $.025 par
value, of the Company (the "Common Stock") offered hereby. This Prospectus does
not contain all the information set forth in the Registration Statement, certain
parts of which have been omitted in accordance with the rules and regulations of
the Commission, and the exhibits relating thereto, which have been filed with
the Commission. Copies of the Registration Statement and the exhibits are on
file at the offices of the Commission and may be obtained upon payment of the
fees prescribed by the Commission, or examined without charge at the public
reference facilities of the Commission described above.
------------------------
No person is authorized in connection with the offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company, the Selling Stockholders set forth under "Selling
Stockholders" or any underwriter. This Prospectus does not constitute an offer
to sell or a solicitation of any offer to buy by any person in any jurisdiction
in which it is unlawful for such person to make such an offer or solicitation.
Neither the delivery of this Prospectus at any time nor any sale made hereunder
shall under any circumstance imply that the information herein is correct as of
any date subsequent to the date hereof.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated in this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, as amended by Form 10-K/A-3 dated December 23, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997, as amended by Form 10-Q/A dated July 9, 1997;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997;
(d) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1997;
(e) The Company's Current Report on Form 8-K dated as of March 12,
1997, as amended by Form 8-K/A dated as of May 12, 1997 (Date of Event:
February 28, 1997);
(f) The Company's Current Report on Form 8-K dated as of March 20,
1997, as amended by Form 8-K/A dated as of May 19, 1997 (Date of Event:
March 7, 1997);
(g) The Company's Current Report on Form 8-K dated as of May 14, 1997
(Date of Event: May 1, 1997);
(h) The Company's Current Report on Form 8-K dated as of June 25, 1997
(Date of Event: June 25, 1997);
(i) The Company's Current Report on Form 8-K dated as of July 17, 1997
(Date of Event: July 17, 1997);
(j) The Company's Current Report on Form 8-K dated as of September 2,
1997 (Date of Event: August 28, 1997);
(k) The Company's Current Report on Form 8-K dated as of September 11,
1997 (Date of Event: September 5, 1997);
(l) The Proxy Statement/Consent Solicitation Statement/Prospectus
dated December 19, 1997 contained in the Company's Registration Statement
on Form S-4/A (Reg. No. 333-42561); and
(m) The Company's Current Report on Form 8-K dated as of December 31,
1997 (Date of Event: December 31, 1997).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, or in any other
subsequently filed document that also is incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will furnish, without charge, to any person to whom a copy of
this Prospectus is delivered, including any beneficial owner, upon such person's
written or oral request, a copy of any and all of the information filed by the
Company that has been incorporated by reference in this Prospectus (not
including exhibits to the information that is incorporated by reference herein
unless such exhibits are specifically incorporated by reference in such
information). Requests for such copies should be directed to the Company at 400
Rabro Drive East, Hauppauge, New York 11788, Attention: Corporate Secretary
(telephone number (516) 582-5900).
3
<PAGE> 5
THE COMPANY
The information set forth below under "General" does not give effect to the
Company's acquisition of Fuqua Enterprises, Inc. ("Fuqua"), a Delaware
corporation, on December 30, 1997. See "-- Fuqua Enterprises, Inc."
GENERAL
The Company and its wholly owned subsidiaries (collectively, the "Company")
manufacture, market and distribute medical, surgical and a broad range of other
healthcare products targeting the home healthcare and medical/surgical markets
through a network of dealers and other customers in North America. The Company
also markets and distributes its products throughout Europe, Central and South
America, and Asia.
The Company markets and distributes products under its own brand names and
under suppliers' names throughout the world. The Company maintains distribution
and manufacturing facilities in the United States, Canada, Mexico and Puerto
Rico. The Company continuously seeks to expand its product lines by increasing
the number of distributorship agreements with suppliers, forming strategic
alliances and acquiring other companies and product lines. The Company's
products are marketed principally to hospital, nursing home, physician and home
healthcare dealers, and healthcare product wholesalers and retailers, including
drug stores, catalog companies, pharmacies and home-shopping related businesses.
The Company's principal products and product lines include durable medical
equipment (such as wheelchairs, homecare beds, ambulatory aids, bathroom and
safety equipment and power wheelchair seating systems), sphygmomanometers (blood
pressure measuring devices), stethoscopes, ECG instruments, electronic
thermometers, infrared heat treatment devices, adult incontinence products,
nutritional supplements, specialty cushions and mattresses for the treatment and
prevention of pressure sores, medicated and rubber elastic bandages, respiratory
equipment and supplies, urologicals, ostomy products, wound care products,
infection control products, first aid supplies, laboratory supplies,
antiseptics, topical anesthetics and sterile disposable medical products. By
offering a wide range of products from a single source, the Company enables its
customers to reduce purchasing costs associated with the purchasing process,
including transaction, freight and inventory expenses. During the year ended
December 31, 1996, approximately 28% of the Company's revenues were derived from
products manufactured by the Company, approximately 18% were derived from
imported products, and approximately 54% were derived from products purchased
from domestic sources, which includes products purchased from Everest & Jennings
International Ltd. ("Everest & Jennings"), which was acquired by the Company on
November 27, 1996.
The Company was organized under the laws of the State of Delaware on April
6, 1981 under the name, Patient Technology, Inc. On May 27, 1988, the Company
changed its name to Graham-Field Health Products, Inc. Except where the context
otherwise requires, the word "Company" as used herein includes all of its
subsidiaries. The Company's executive offices are located at 400 Rabro Drive
East, Hauppauge, New York 11788 and its telephone number is (516) 582-5900.
FUQUA ENTERPRISES, INC.
On December 30, 1997, the Company acquired Fuqua pursuant to the terms and
provisions of the Agreement and Plan of Merger dated as of September 5, 1997 and
amended as of September 29, 1997 (the "Merger Agreement"), by and among the
Company, Fuqua and GFHP Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Sub"). Under the terms of the Merger
Agreement, Sub was merged with and into Fuqua with Fuqua continuing as the
surviving corporation wholly-owned by the Company ("the Merger").
In the Merger, each share of Fuqua Common Stock, par value $2.50 per share
(the "Fuqua Common Stock"), other than shares of Fuqua Common Stock canceled
pursuant to the Merger Agreement, was converted into the right to receive 2.1
shares of Common Stock.
Fuqua through its subsidiaries, is a manufacturer of a variety of medical
products for the acute, long-term and home healthcare markets (the "Medical
Products Operations"). The Medical Products Operations were
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formed through the acquisition of three businesses; Basic American Medical
Products, Inc., ("Basic") a leading manufacturer and supplier of beds and
patient room furnishings to the long-term care industry; the medical products
operations of Lumex Medical Products, Inc., a leading manufacturer and supplier
of patient aids, specialty seating products, bathroom safety products and
durable medical products to the home healthcare industry; and Prism Enterprises,
Inc., which produces heat and cold packs as well as obstetrical vacuum pumps.
Fuqua also produce a broad line of leathers that were sold to manufacturers of
shoes, handbags, personal leather goods and furniture in both the United States
and foreign markets (the "Leather Operations"). On January 27, 1998, the Company
sold the Leather Operation for approximately $68,000,000 to a management group.
The purchase price consisted of approximately $60,200,000 in cash, preferred
stock with a stated value of $4,250,000, the assumption of debt of about
$2,300,000 and other consideration of about $1,400,000.
In accordance with the terms of the Merger Agreement, Mr. Gene J. Minotto
("Mr. Minotto"), the President and Chief Executive Officer of Basic, and Minotto
Partners, L.P., received in the aggregate 1,260,000 shares of Common Stock in
exchange for their shares of Fuqua Common Stock.
The Company also entered into a registration rights agreement dated as of
November 25, 1997 (the "Registration Rights Agreement"), with Mr. Minotto and
Minotto Partners, L.P. (collectively, the "Selling Stockholders") pursuant to
which the Company agreed to register for resale the shares of Common Stock
acquired by the Selling Stockholders pursuant to the Merger Agreement.
SELLING STOCKHOLDERS
The Selling Stockholders acquired the 1,260,000 shares of Common Stock
offered hereby from the Company pursuant to the Merger Agreement. The Company
has agreed to register the Common Stock offered hereby, and may from time to
time supplement or amend this Prospectus, as required, to provide additional
information with respect to the Selling Stockholders.
The table set forth below contains certain information regarding ownership
of Common Stock by the Selling Stockholders. The Selling Stockholders may offer
all or part of the Common Stock which they hold pursuant to the offering
contemplated by this Prospectus.
TABLE I
<TABLE>
<CAPTION>
SHARES OF NO. OF
COMMON SHARES OF SHARES OF
STOCK OWNED COMMON COMMON STOCK
PRIOR TO STOCK BEING OWNED AFTER
SELLING STOCKHOLDER OFFERING OFFERED OFFERING(1)
- ----------------------------------------------------- ----------- ----------- ------------
<S> <C> <C> <C>
Gene J. Minotto(2)................................... 630,000 630,000 0
Minotto Partners, L.P.(3)............................ 630,000 630,000 0
--------- --------- ---
Total...................................... 1,260,000 1,260,000 --
========= ========= ===
</TABLE>
- ---------------
(1) The calculation of the number of shares of Common Stock owned after the
offering assumes the sale of all shares offered hereby.
(2) Gene J. Minotto was the President and Chief Executive Officer of Basic.
(3) Minotto Partners, L.P. is a limited partnership, organized under the laws of
Georgia, of which a 99% interest is held by Mr. Minotto as a limited
partner, and a 1% interest is held by Minotto Management Company LLC, a
limited liability company organized under the laws of Georgia, as the sole
general partner.
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PLAN OF DISTRIBUTION
The Company will not receive any of the proceeds from the sale by the
Selling Stockholders of the Common Stock offered pursuant to this Prospectus to
be included as part of the shelf registration statement on Form S-3 (the
"Registration Statement") prepared by the Company for the disposition of the
Selling Stockholders' shares of Common Stock. Any or all of the Selling
Stockholders' shares of Common Stock may be sold from time to time to or through
brokers or dealers, acting as principal or agents, in transactions (which may
involve block transactions) on the NYSE, in ordinary brokerage transactions, in
negotiated transactions or otherwise, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or otherwise, or directly or indirectly through brokers or agents in private
sales at negotiated prices, or through a combination of any such methods of
sale, including but not limited to bulk sale to a brokerage firm, but not
pursuant to an underwritten public offering. Such prices will be determined by
the Selling Stockholders or by an agreement between the Sole Stockholders and
brokers or dealers. Brokers or dealers acting in connection with the sale of
Common Stock contemplated by this Prospectus may receive fees, discounts or
commissions in connection therewith, which fees, discounts or commissions may be
in excess of customary commissions. The Common Stock may also be sold pursuant
to Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"),
rather than pursuant to a Prospectus.
The Selling Stockholders may from time to time pledge shares of Common
Stock owned by them to secure margin or other loans made to one or more of the
Selling Stockholders or to entities in which one or more of the Selling
Stockholders have a direct or indirect equity interest. Thus, the person or
entity receiving a pledge of any shares of Common Stock may sell them in a
foreclosure sale or otherwise in the same manner as described above for a
Selling Stockholder.
In connection with distributions of the shares of Common Stock covered by
the Registration Statement or otherwise, the Selling Stockholders may enter into
hedging transactions with broker-dealers or other financial institutions. In
connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of Common Stock in the course of hedging
the positions they assume with Selling Stockholders. The Selling Stockholders
may also sell Common Stock short and redeliver the shares to close out such
short positions. The Selling Stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions which require
the delivery to such broker-dealer or other financial institution of the Common
Stock offered hereby, which Common Stock such broker-dealer or other financial
institution, subject to any applicable transfer restrictions in agreements
between the Selling Stockholders and the Company, may resell pursuant to this
Prospectus (as supplemented or amended to reflect such transaction).
Upon the Company being notified by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering or secondary distribution or a
purchase by a broker-dealer, to the extent required by applicable law, a
supplement to this Prospectus will be distributed that will set forth the name
of each such Selling Stockholder, and of the broker-dealer(s) or agents, the
aggregate amount of Common Stock being offered and the terms of the offer,
including all discounts, commissions and other items constituting compensation
from the Selling Stockholders, if any, and all discounts, commissions or
concessions allowed or re-allowed or paid to dealers, including the proposed
selling price to the public. Such supplement to this Prospectus and, if
necessary, a post-effective amendment to the Registration Statement of which
this Prospectus is a part will be filed with the Commission to reflect the
disclosure of additional information with respect to the distribution of the
Common Stock.
The outstanding Common Stock is listed on the NYSE.
Under the Registration Rights Agreement with the Selling Stockholders, the
Company has agreed to use its best efforts to register or qualify all the
Selling Stockholder's Common Stock covered by this Prospectus under the blue sky
laws of such jurisdictions as the Selling Stockholders may reasonably request
and to keep such registration in effect for so long as such Prospectus remains
in effect, and to take any other action which may be reasonably necessary or
advisable, subject to certain restrictions, to enable the Selling Stockholders
to consummate the disposition in such jurisdiction of their Common Stock.
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Under the terms of the Registration Rights Agreement with the Selling
Stockholders, the Company also has agreed to use its best efforts to keep the
Registration Statement of which this Prospectus is a part continuously effective
until the earlier of (i) December 30, 1999 and (ii) such time as the Common
Stock held by the Selling Stockholders may be sold in one transaction pursuant
to Rule 144 under the Securities Act.
Pursuant to the Registration Rights Agreement with the Selling
Stockholders, the Company further has agreed to pay any and all expenses
incident to the performance of or compliance with such agreement including,
among other things, registration and filing fees, fees and expenses incurred in
connection with compliance with securities or blue sky laws of the applicable
states, fees and disbursements of counsel and independent public accountants for
the Company. The Company has agreed to indemnify the Selling Stockholders
against certain civil liabilities, including liabilities under the Securities
Act, that may arise in connection with their distribution of the Common Stock.
LEGAL MATTERS
The legality of the issuance of the shares of Common Stock offered hereby
will be passed upon for the Company by Milbank, Tweed, Hadley & McCloy.
EXPERTS
The consolidated financial statements and schedule of Graham-Field Health
Products, Inc. (the "Company") appearing in the Company's Annual Report (Form
10-K/A-3) for the year ended December 31, 1996, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated by reference herein. Such consolidated financial
statements and schedule are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
The consolidated financial statements of Everest & Jennings appearing in
the Proxy Statement/Consent Solicitation Statement/Prospectus dated December 19,
1997 contained in the Company's Registration Statement on Form S-4/A (the "Proxy
Statement/Consent Solicitation Statement/Prospectus") have been audited by Price
Waterhouse LLP, independent auditors, as set forth in their report thereon
included therein and incorporated by reference herein. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given by the authority of such firm as experts in accounting and
auditing.
The consolidated financial statements and schedule of Fuqua Enterprises,
Inc. appearing in the Proxy Statement/Consent Solicitation Statement/Prospectus
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated by reference herein. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such report given by the authority of such firm as
experts in accounting and auditing.
The consolidated financial statements of the Lumex Division of Lumex, Inc.
appearing in the Proxy Statement/Consent Solicitation Statement/Prospectus have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated by reference herein. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given by the authority of such firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
An itemized statement of the estimated amount of all expenses in connection
with the distribution of the securities registered hereby is as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 5,286
Legal fees and expenses............................................ 5,000
Accounting fees and expenses....................................... 2,500
Transfer Agent's fees.............................................. 1,500
Miscellaneous...................................................... 1,500
------
Total.................................................... $ 15,786
======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, a corporation
may indemnify any of its directors and officers against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding (i) if such person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation and
(ii) in connection with any criminal action or proceeding if such person had no
reasonable cause to believe such conduct was unlawful. In actions brought by or
in the right of the corporation, however, Section 145 provides that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation only to the
extent that, the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Article V of the Company's By-laws requires that the Company indemnify its
directors and officers for certain liabilities incurred in the performance of
their duties on behalf of the Company to the fullest extent permitted or
required by the Delaware General Corporation Law.
The Company's Certificate of Incorporation, as amended, provides that
directors of the Company shall not be personally liable to the Company or to its
stockholders for monetary damages for (i) any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) any act or omission where the liability of the director is expressly
provided for by certain statutes listed therein or (iv) any transaction for
which the director derived an improper personal benefit.
The Company has a directors and officers liability insurance policy in
effect which covers certain claims against any officer or director of the
Company by reason of certain breaches of duty, neglect, errors or omissions
committed by such person in his capacity as an officer or director.
II-1
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ITEM 16. EXHIBITS
(a) Exhibits:
<TABLE>
<C> <C> <S>
2(a) -- Agreement and Plan of Merger dated as of September 5, 1997 and amended as of
September 29, 1997, by and among the Company, Fuqua Enterprises, Inc. and GFHP
Acquisition Corp., incorporated by reference as Exhibit 2.1 to the Company's S-4
Registration Statement filed on December 18, 1997 (Registration No. 333-42561)
(the "1997 Registration Statement").
4(a) -- Registration Rights Agreement dated as of November 25, 1997, by and among the
Company, Gene J. Minotto and Minotto Partners, L.P., incorporated by reference as
Exhibit 2.5 to the 1997 Registration Statement.
5.1 -- Opinion of Milbank, Tweed, Hadley & McCloy.
23.1 -- Consent of Ernst & Young LLP, independent auditors.
23.2 -- Consent of Ernst & Young LLP, independent auditors.
23.3 -- Consent of Ernst & Young LLP, independent auditors.
23.4 -- Consent of Price Waterhouse LLP, independent auditors.
23.5 -- Consent of Milbank, Tweed, Hadley & McCloy (included in Exhibit 5.1).
</TABLE>
ITEM 17. UNDERTAKINGS.
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 provisions set forth in Item 15 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.
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.
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;
II-2
<PAGE> 11
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, 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.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-3
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Graham-Field
Health Products, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Hauppauge, New York on January 30, 1998.
GRAHAM-FIELD HEALTH PRODUCTS, INC.
By: /s/ IRWIN SELINGER
------------------------------------
Irwin Selinger, Chairman of the
Board and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Irwin Selinger as his or her true and lawful
attorney-in-fact and agent, with full power of substitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments and post-effective amendments to this Registration Statement, and
to file the same with all exhibits thereto, unto said attorney-in-fact and agent
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 or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent may lawfully do or cause
to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ------------------------------ -----------------
<C> <S> <C>
/s/ IRWIN SELINGER Chairman of the Board and January 30, 1998
- --------------------------------------------- Chief Executive Officer
Irwin Selinger (Principal Executive Officer
and Director)
/s/ GARY M. JACOBS Vice President/Finance and January 30, 1998
- --------------------------------------------- Chief Financial Officer
Gary M. Jacobs (Principal Financial Officer
and Principal Accounting
Officer)
/s/ ANDREW A. GIORDANO Director January 30, 1998
- ---------------------------------------------
Andrew A. Giordano
/s/ DAVID P. DELANEY Director January 30, 1998
- ---------------------------------------------
David P. Delaney
/s/ RODNEY F. PRICE Director January 30, 1998
- ---------------------------------------------
Rodney F. Price
/s/ STEVEN D. LEVKOFF Director January 30, 1998
- ---------------------------------------------
Steven D. Levkoff
/s/ J. REX FUQUA Director January 30, 1998
- ---------------------------------------------
J. Rex Fuqua
</TABLE>
II-4
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
ITEM
NO. DESCRIPTION
- ----- ----------------------------------------------------------------------------------
<C> <C> <S>
2(a) -- Agreement and Plan of Merger dated as of September 5, 1997 and amended as of
September 29, 1997, by and among the Company, Fuqua Enterprises, Inc. and GFHP
Acquisition Corp., incorporated by reference as Exhibit 2.1 to the Company's S-4
Registration Statement filed on December 18, 1997 (Registration No. 333-42561)
(the "1997 Registration Statement").
4(a) -- Registration Rights Agreement dated as of November 25, 1997, by and among the
Company, Gene J. Minotto and Minotto Partners, L.P., incorporated by reference as
Exhibit 2.5 to the 1997 Registration Statement.
5.1 -- Opinion of Milbank, Tweed, Hadley & McCloy.
23.1 -- Consent of Ernst & Young LLP, independent auditors.
23.2 -- Consent of Ernst & Young LLP, independent auditors.
23.3 -- Consent of Ernst & Young LLP, independent auditors.
23.4 -- Consent of Price Waterhouse LLP, independent auditors.
23.5 -- Consent of Milbank, Tweed, Hadley & McCloy (included in Exhibit 5.1).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
MILBANK, TWEED, HADLEY & MCCLOY
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
January 30, 1998
Graham-Field Health Products, Inc.
400 Rabro Drive East
Hauppauge, New York 11788
Gentlemen:
You have requested our opinion, as special counsel for Graham-Field Health
Products, Inc., a Delaware corporation (the "Company"), in connection with the
preparation and filing of a Registration Statement of the Company on Form S-3
(the "Registration Statement") for the registration of 1,260,000 shares (the
"Shares") of the common stock, par value $0.25 per share, of the Company under
the Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the offering of the Shares by certain selling stockholders (the
"Selling Stockholders") as described in the Registration Statement.
We have examined such records and documents and made such examination of
law as we have deemed relevant in connection with this opinion. When relevant
facts were not independently established, we have relied upon certificates of
government officials and of the Company and its officers. Based upon such
examination, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
2. The Shares proposed to be sold by the Selling Stockholders as
described in the Registration Statement have been duly authorized and
validly issued and are fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Registration Statement. In so doing, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
MILBANK, TWEED, HADLEY & MCCLOY
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Graham-Field Health
Products, Inc. for the registration of 1,260,000 shares of its common stock and
to the incorporation by reference therein of our report dated March 10, 1997
(except for Note 2, paragraph 5, as to which the date is August 28, 1997), with
respect to the consolidated financial statements and schedule of Graham-Field
Health Products, Inc. included in the Amendment No. 3 on Form 10-K for the year
ended December 31, 1996 filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Melville, New York
January 30, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Graham-Field Health
Products, Inc. for the registration of 1,260,000 shares of its common stock and
to the incorporation by reference therein of our report dated February 20, 1997
(except for the last paragraph of Note 2, as to which the date is February 26,
1997), with respect to the consolidated financial statements and schedule of
Fuqua Enterprises, Inc. included in the Proxy Statement/Consent Solicitation
Statement/Prospectus dated December 19, 1997 contained in the Company's
Registration Statement on Form S-4/A (Reg. No. 333-42561).
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
January 30, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Graham-Field Health
Products, Inc. for the registration of 1,260,000 shares of its common stock and
to the incorporation by reference therein of our report dated March 13, 1996
(except for Note 1, as to which the date is March 13, 1997), with respect to the
consolidated financial statements of the Lumex Division of Lumex, Inc. included
in the Proxy Statement/Consent Solicitation Statement/Prospectus dated December
19, 1997 contained in the Company's Registration Statement on Form S-4/A (Reg.
No. 333-42561).
/s/ ERNST & YOUNG LLP
New York, New York
January 30, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Graham-Field
Health Products, Inc. of our report dated March 15, 1996, except as to the tenth
paragraph of Note 3, which is as of June 4, 1996, relating to the consolidated
financial statements of Everest & Jennings International Ltd. We also consent to
the incorporation by reference of our report on the Financial Statement Schedule
of Everest & Jennings International Ltd. for the three years ended December 31,
1995. Such Price Waterhouse LLP reports are included in the Proxy
Statement/Consent Solicitation Statement/Prospectus dated December 19, 1997
contained in Graham-Field Health Products, Inc's Registration Statement on Form
S-4/A (Reg. No. 333-42561) which is incorporated by reference in the Prospectus
constituting part of this Registration Statement on Form S-3. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
St. Louis, Missouri
January 30, 1998
