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As filed with the Securities and Exchange Commission
on November 2, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
POLYMEDICA CORPORATION
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-3033368
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
11 STATE STREET, WOBURN, MASSACHUSETTS 01801
(Address of Principal Executive Offices) (Zip Code)
1998 STOCK INCENTIVE PLAN
(Full title of the plan)
JOHN K.P. STONE III, ESQ.,
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ===================== ========================= ======================= ================
<S> <C> <C> <C> <C>
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per share aggregate offering registration
price fee
========================== ===================== ========================= ======================= ================
Common Stock, 315,000 $9.35(1) $2,945,250.00(1) $819
$0.01 par value
========================== ===================== ========================= ======================= ================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common
Stock on the American Stock Exchange on October 28, 1998 in accordance
with Rules 457(c) and 457(h) of the Securities Act of 1933.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents
sent or given to participants in the Registrant's 1998 Stock Incentive Plan
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which are filed with the Securities
and Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
annual report or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant,
$0.01 par value per share (the "Common Stock"), contained in the
Registration Statement on Form 8-A filed under the Exchange Act
relating to such common stock, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Article 6 of the Company's Restated Articles of Organization
(the "Articles") provides that the Company shall indemnify each person who is or
was, or has agreed to become, a director or officer of the Company, and each
person who is or was serving, or has agreed to serve, at the request of the
Company, as a director or officer of, or in a similar capacity with, another
organization or in any capacity with respect to any employee benefit plan of the
corporation, against all liabilities, costs and expenses, including attorneys'
fees, reasonably incurred by any such persons in connection with the defense or
disposition of or otherwise in connection with or resulting from any action,
suit or other proceeding, and any appeal therefrom, in which they may be
involved by reason of being or having been such a director or officer, or by
reason of any action taken or not taken in such capacity, except with respect to
any matter as to which such person shall have been finally adjudicated by a
court of competent jurisdiction not to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the
Company or, to the extent 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. In addition, the corporation may,
to the extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Company or other
persons serving the Company, and such rights may be equivalent to, or greater or
less than, those granted to directors and officers.
The provisions in the Company's Articles pertaining to indemnification
may not be amended and no provision inconsistent therewith may be adopted
without the approval of the holders of at least two-thirds (2/3rds) majority of
the voting power of the Company. Section 67 of Chapter 156B of the Massachusetts
Business Corporation Law authorizes a corporation to indemnify its directors,
officers, employees and other agents unless such person shall have been
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that such action was in the best interests of the corporation.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits to this
Registration Statement is incorporated herein by reference.
Item 9. Undertakings
1. The 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;
(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; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement; provided, however,
that paragraphs (i) and (ii) do not apply if the Registration
Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's
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annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in 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 in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Woburn, Massachusetts, on the 30th day of October,
1998.
PolyMedica Corp. (registrant)
By: /s/Steven J. Lee
---------------------------
Steven J. Lee
Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
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POWER OF ATTORNEY
We, the undersigned officers and directors of PolyMedica Corporation,
hereby severally constitute Steven J. Lee, Eric G. Walters and John K.P. Stone
III, and each of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and any
and all subsequent amendments to said Registration Statement, and generally to
do all such things in our names and behalf in our capacities as officers and
directors to enable PolyMedica Corporation to comply with all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Chairman of the Board of Directors and October 30, 1998
/s/ Steven J. Lee Chief Executive Officer (Principal
- ------------------------ Executive Officer)
Steven J. Lee
Chief Financial Officer, Treasurer and October 30, 1998
/s/ Eric G. Walters Clerk (Principal Financial and
- ------------------------ Accounting Officer)
Eric G. Walters
/s/ Thomas S. Soltys Director October 26, 1998
- -------------------------
Thomas S. Soltys
/s/ Daniel S. Bernstein Director October 30, 1998
- -------------------------
Daniel S. Bernstein
/s/ Frank W. LoGerfo Director October 27, 1998
- ------------------------
Frank W. LoGerfo
/s/ Marcia J. Hooper Director October 30, 1998
- -------------------------
Marcia J. Hooper
/s/ Peter K. Hoffman Director October 26, 1998
- ------------------------
Peter K. Hoffman
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4.1 Restated Articles of Organization of the Registrant (1)
4.2 Restated By-Laws of the Registrant (1)
4.3 Specimen Certificate for shares of Common Stock, $.01 par value
per share, of the Registrant (1)
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on the signature page of this
Registration Statement)
- -----------------------
(1)Incorporated herein by reference to the exhibits to the Company's
Registration Statement on Form S-1 (File No. 33-45425).
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Exhibit 5
HALE & DORR LLP
60 State Street, Boston, Massachusetts 02109
617-526-6000 o fax 617-526-5000
October 28, 1998
PolyMedica Corporation
11 State Street
Woburn, MA 01801
Re:1998 Stock Incentive Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 315,000 shares (the "Shares") of Common Stock, $.01 par
value per share, of PolyMedica Corporation, a Massachusetts corporation (the
"Company"), issuable under the Company's 1998 Stock Incentive Plan (the "Plan").
We have examined the Articles of Organization of the Company, the By-laws
of the Company (each as amended to date), and originals, or copies certified in
our satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, photostatic of facsimile copies, and the authenticity of the
originals of any such documents.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance under the Plan, and the Shares, when issued and
paid for in accordance with the terms of the Plan and at a price per share in
excess of the par value per share for such Shares, will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
----------------------
HALE AND DORR LLP
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Exhibit 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-8 of PolyMedica Corporation (the "Company") pertaining to the Company's
1998 Stock Incentive Plan of our report dated May 6, 1998, which report is
included in the Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1998.
Boston, Massachusetts
October 30, 1998 /s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
