<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 2000
REGISTRATION STATEMENT NO. 333-35312
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
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 IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
11 STATE STREET
WOBURN, MASSACHUSETTS 01801
(781) 933-2020
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
STEVEN J. LEE
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
POLYMEDICA CORPORATION
11 STATE STREET
WOBURN, MASSACHUSETTS 01801
(781) 933-2020
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------
COPIES TO:
JOHN K.P. STONE, III, ESQ.
THOMAS L. BARRETTE, JR., ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
TELEPHONE: (617) 526-6000
TELECOPY: (617) 526-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement in light of market
conditions and other factors.
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]
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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. [ ]
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY 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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), SHALL DETERMINE.
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THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 2000
$100,000,000
POLYMEDICA CORPORATION
COMMON STOCK
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PolyMedica may from time to time issue shares of common stock having an
aggregate value of up to $100,000,000 with this prospectus, in amounts, at
prices and on terms to be determined by market conditions at the time of the
offering.
We may sell shares of common stock to or through underwriters and also to
other purchasers or through agents. The names of any underwriters or agents will
be set forth in the accompanying prospectus supplement.
This prospectus may not be used to consummate sales of common stock unless
it is accompanied by a prospectus supplement.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING
ON PAGE 7.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is November __, 2000.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
About This Prospectus.................................................... 2
Where You Can Find More Information...................................... 2
Forward-Looking Information.............................................. 3
Our Business............................................................. 5
Risk Factors............................................................. 7
Use of Proceeds.......................................................... 11
Plan of Distribution..................................................... 12
Legal Matters............................................................ 12
Experts.................................................................. 13
</TABLE>
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PolyMedica Corporation was incorporated as Emerging Sciences, Inc. in
Massachusetts in November 1988, and commenced commercial operations in October
1989. In July 1990, we changed our name to PolyMedica Industries, Inc., and in
September 1997, we changed our name to PolyMedica Corporation. Our executive
offices are located at 11 State Street, Woburn, Massachusetts, and our telephone
number is (781) 933-2020. Our World Wide Web site addresses are
www.polymedica.com and www.libertymedical.com. The information in our Web sites
is not a part of this prospectus and is not incorporated by reference into this
prospectus. Unless the context otherwise requires, references in this prospectus
to "PolyMedica," "we," "us," and "our" refer to PolyMedica Corporation and its
subsidiaries. Our Nasdaq National Market symbol is PLMD.
We have registered the trademarks "AZO STANDARD," "AZO CRANBERRY,"
"CYSTOSPAZ," "CYSTOSPAZ-M," "SUPPRETTES," "AQUACHLORAL" and "URISED" on the
Principal Register of the United States Patent and Trademark Office. This
prospectus also contains other product names, trade names and trademarks that
belong to us or to other organizations.
We may use underwriters in the offering of the common stock. The
underwriters may subject the common stock to various conditions and may reject
all or part of any order.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell the shares of common stock covered by this prospectus in one or more
offerings up to a total dollar amount of $100,000,000. Each time we sell shares
of common stock, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. This
prospectus, together with applicable prospectus supplements, includes all
material information relating to this offering.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the Securities
and Exchange Commission. You may read and copy any document we file at the SEC's
public reference room at Judiciary Plaza Building, 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549. You should call
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1-800-SEC-0330 for more information on the public reference room. Our SEC
filings are also available to you on the SEC's Internet site at
http://www.sec.gov. In addition, these materials may be read at the offices of
The Nasdaq Stock Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is part of the registration statement and the prospectus
supplement and does not contain all of the information included in the
registration statement and the prospectus supplement. Whenever a reference is
made in this prospectus to any contract or other document of PolyMedica, the
reference may not be complete and you should refer to the exhibits that are a
part of the registration statement or the prospectus supplement for a copy of
the contract or document.
The SEC allows us to "incorporate by reference" into this prospectus
information that we file with the SEC in other documents. This means that we can
disclose important information to you by referring to other documents that
contain that information. The information incorporated by reference is an
important part of this prospectus, and information that we file with the SEC in
the future and incorporate by reference will automatically update and may
supersede the information contained in this prospectus. We hereby incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, until we sell all of the common stock covered by this prospectus:
* Our Annual Report on Form 10-K for the fiscal year ended March 31,
2000;
* Our Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 2000;
* Our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2000;
* All of our filings pursuant to the Exchange Act after the date of
filing the initial registration statement and prior to effectiveness
of the registration statement; and
* The description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on March 27, 1995.
Each of these documents is available from the SEC's website and public
reference rooms described above. You may also request a copy of these documents,
excluding exhibits, at no cost, by contacting: PolyMedica Corporation, 11 State
Street, Woburn, Massachusetts 01801, Attention: Investor Relations; Telephone
(781) 933-2020.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information.
We are not making an offer of the shares of common stock covered by this
prospectus in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents.
FORWARD-LOOKING INFORMATION
This prospectus contains or incorporates forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. You can identify these forward-looking statements by our use of the words
"believes," "anticipates," "plans," "expects," "may," "will," "would,"
"intends," "estimates" and similar expressions, whether in the negative or
affirmative. We
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cannot guarantee that we actually will achieve these plans, intentions or
expectations. Actual results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking statements we make.
We have included important factors in the cautionary statements in this
prospectus, particularly under the heading "Risk Factors," that we believe could
cause our actual results to differ materially from the forward-looking
statements that we make. The forward-looking statements do not reflect the
potential impact of any future acquisitions, mergers or dispositions. We do not
assume any obligation to update any forward-looking statement we make.
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OUR BUSINESS
General
PolyMedica Corporation is a leading provider of direct-to-consumer
specialty medical products and services, conducting business in the Chronic
Care, Professional Products and Consumer Healthcare markets. We sell diabetes
supplies through our Chronic Care segment. Our AZO brand holds a leading
position in the over-the-counter urinary health market. We also market,
manufacture and distribute a line of prescription urological and suppository
products and provide direct-to-consumer prescription respiratory supplies and
services to Medicare-eligible seniors suffering from chronic obstructive
pulmonary disease through our Professional Products segment.
Chronic Care
We are a national direct-mail provider of diabetes and adult nutrition
supplies through our Chronic Care segment. We have a database of over 280,000
active Medicare-eligible diabetes customers, many of whom suffer from other
chronic care diseases, to whom we sell name-brand products. We deliver products
to customers' homes and bill Medicare and private insurance directly for those
supplies that are reimbursable. We meet the needs of seniors suffering from
these diseases by:
- providing mail order delivery of supplies directly to our customers'
homes;
- billing Medicare or private insurance directly;
- providing 24-hour telephone support to customers; and
- using sophisticated software and advanced order fulfillment systems to
provide products and support quickly and efficiently.
In the United States, there are approximately 6.3 million seniors who
have diabetes. With our database of over 280,000 active Medicare-eligible
diabetes customers, we serve approximately 4.4% of the diabetes marketplace.
While many of the 6.3 million seniors with diabetes are covered by managed
care or reside in extended care facilities, we believe that the balance are
potential customers of ours.
Professional Products
We are a national direct-mail provider of prescription respiratory supplies
and also market, manufacture and distribute a line of prescription urological
and suppository products under our own brands through our Professional Products
segment. Our broad line of prescription urology products includes urinary
analgesics, antispasmodics, local anesthetics and analgesic suppositories,
excluding anti-infectives. Our primary customers for these urology products are
large drug wholesalers in the United States.
Similar to the service we provide in our Chronic Care segment, we deliver
products to customers' homes and bill Medicare and private insurance directly
for those prescription respiratory supplies that are reimbursable. As a
participating Medicare provider and third-party insurance biller, we provide a
simple, reliable way for seniors to obtain their supplies for respiratory
disease treatment.
In 1998, Medicare expenditures for two key drugs for the treatment of
respiratory disease, albuterol and ipratropium, were in excess of $400 million.
We estimate that up to 10% of our customer for diabetes supplies also suffer
from respiratory disease. As of October 31, 2000, we had over 20,000 active
customers for our respiratory disease supplies.
Consumer Healthcare
Our Consumer Healthcare division primarily sells over-the-counter female
urinary discomfort products. We sell our urinary discomfort products for women
under the AZO brand name and hold the number one position in this market for
these types of products. We sell our Consumer Healthcare products through an
extensive network to large drug store chains, major supermarkets, mass
merchandisers and drug wholesalers in the United States.
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Strategy
Our principal strategy is to leverage our technology-based operating
platform and compliance management protocol to expand our business. This
strategy includes the following elements:
* continue growth in our Chronic Care and Professional Products
businesses by expanding our customer base;
* expand into non-Medicare initiatives; and
* add complementary products and businesses.
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RISK FACTORS
You should carefully consider the following factors and other information
in this prospectus before deciding to invest in our common stock. If any of the
following risks or uncertainties actually occurs, our business, financial
condition and operating results would likely suffer, the market price of our
common stock could decline, and you could lose all or part of the money you paid
to buy our common stock.
WE COULD EXPERIENCE SIGNIFICANTLY REDUCED PROFITS IF MEDICARE CHANGES, DELAYS OR
DENIES REIMBURSEMENT
Sales of a significant portion of our Chronic Care and Professional
Products supplies will depend on the continued availability of reimbursement of
our customers by government and private insurance plans. Any reduction in
Medicare reimbursement currently available for our products would reduce our
revenues. Without a corresponding reduction in the cost of such products, the
result would be a reduction in our overall profit margin. Similarly, any
increase in the cost of such products would reduce our overall profit margin
unless there were a corresponding increase in Medicare reimbursement. Our
profits could also be affected by the imposition of more stringent regulatory
requirements for Medicare reimbursement. Any failure to comply with required
Medicare reimbursement procedures could result in delays or loss of
reimbursement and other sanctions, including fines and loss of Medicare provider
status.
WE PLAN TO CONTINUE OUR RAPID EXPANSION; IF WE DO NOT MANAGE OUR GROWTH
SUCCESSFULLY, OUR GROWTH AND PROFITABILITY MAY SLOW OR STOP
We have expanded our operations rapidly and plan to continue to expand.
This expansion has created significant demands on our administrative,
operational and financial personnel and other resources. Additional expansion in
existing or new markets could strain these resources and increase our need for
capital. Our personnel, systems, procedures, controls and existing space may not
be adequate to support further expansion.
THE PROFITABILITY OF OUR CHRONIC CARE AND PROFESSIONAL PRODUCTS SEGMENTS WILL
DECREASE IF WE DO NOT RECEIVE RECURRING ORDERS FROM CUSTOMERS
We generally incur losses and negative cash flow with respect to the first
order for Chronic Care and respiratory products, included in our Professional
Products segment, from a customer, due primarily to the marketing and regulatory
compliance costs associated with initial customer qualification. Accordingly,
the profitability of these segments depends in large part, on recurring and
sustained reorders. Reorder rates are inherently uncertain due to several
factors, many of which are outside our control, including changing customer
preferences, competitive price pressures, customer transition to extended care
facilities, customer mortality and general economic conditions.
WE COULD EXPERIENCE SIGNIFICANTLY REDUCED PROFITS FROM OUR CHRONIC CARE SEGMENT
IF IMPROVED TECHNOLOGIES THAT ELIMINATE THE NEED FOR CONSUMABLE TESTING SUPPLIES
ARE DEVELOPED FOR GLUCOSE MONITORING
The majority of our Chronic Care net revenues are from consumable testing
supplies, used to draw and test small quantities of blood for the purpose of
measuring and monitoring glucose levels. Numerous research efforts are underway
to develop more convenient and less intrusive glucose measurement techniques.
The commercialization and widespread acceptance of new technologies that
eliminate or reduce the need for consumable testing supplies could negatively
affect our Chronic Care business.
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WE COULD BE LIABLE FOR HARM CAUSED BY PRODUCTS THAT WE SELL
The sale of medical products entails the risk that users will make product
liability claims. A product liability claim could be expensive. Our insurance
may not provide adequate coverage against these claims.
WE COULD LOSE CUSTOMERS AND REVENUES TO NEW OR EXISTING COMPETITORS WHO HAVE
GREATER FINANCIAL OR OPERATING RESOURCES
Competition from other sellers of products offered through our Chronic
Care, Professional Products and Consumer Healthcare segments, manufacturers of
healthcare products, pharmaceutical companies and other competitors is intense
and expected to increase. Many of our competitors and potential competitors are
large companies with well known names and substantial resources. These companies
may develop products and services that are more effective or less expensive than
any that we are developing or selling. They may also promote and market these
products more successfully than we promote and market our products.
LOSS OF USE OF MANUFACTURING OR DATA STORAGE FACILITIES WOULD SIGNIFICANTLY
REDUCE REVENUES AND PROFITS FROM OUR CONSUMER HEALTHCARE AND PROFESSIONAL
PRODUCTS BUSINESSES
We manufacture some of our Professional Products and many of our AZO
products at our facility in Woburn, Massachusetts. In addition, we process and
store most of our customer data in our facility in Port St. Lucie, Florida. If
we cannot use any of these facilities as a result of Food and Drug
Administration, Occupational Safety and Health Administration or other
regulatory action, fire, natural disaster or other event, our revenues and
profits will decrease significantly. We might also incur significant expense in
remedying the problem or securing an alternative manufacturing or data storage
source.
IF WE OR OUR SUPPLIERS DO NOT COMPLY WITH APPLICABLE GOVERNMENT REGULATIONS, WE
MAY BE PROHIBITED FROM SELLING OUR PRODUCTS
Many of the products that we sell are regulated by the Food and Drug
Administration and other regulatory agencies. If any of these agencies mandate a
suspension of production or sales of our products or mandate a recall, we may
lose sales and incur expense until we are in compliance with the regulations or
change to another acceptable supplier.
WE COULD HAVE DIFFICULTY SELLING OUR CONSUMER HEALTHCARE AND PROFESSIONAL
PRODUCTS IF WE CANNOT MAINTAIN AND EXPAND OUR SALES TO DISTRIBUTORS
We rely on third party distributors to market and sell our Consumer
Healthcare and some of our Professional Products. Our sales of Consumer
Healthcare and Professional Products will therefore depend in part on our
maintaining and expanding marketing and distribution relationships with
pharmaceutical, medical device, personal care and other distributors and on the
success of those distributors in marketing and selling our products.
SHORTENING OR ELIMINATING AMORTIZATION OF OUR DIRECT-RESPONSE ADVERTISING COSTS
COULD ADVERSELY AFFECT OUR OPERATING RESULTS
Any accounting or business change that shortens or eliminates the
amortization period of our direct-response advertising costs -- four years for
our diabetes products and two years for our respiratory products -- could result
in accelerated charges against our earnings.
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OUR QUARTERLY REVENUES OR OPERATING RESULTS COULD VARY, WHICH MAY CAUSE THE
MARKET PRICE OF OUR SECURITIES TO DECLINE
We have experienced fluctuations in our quarterly operating results and
anticipate that such fluctuations could continue. Results may vary significantly
depending on a number of factors, including:
* changes in reimbursement guidelines and amounts;
* changes in regulations affecting the healthcare industry;
* changes in the mix or cost of our products;
* the timing of customer orders;
* the timing and cost of our advertising campaigns; and
* the timing of the introduction or acceptance of new products and
services offered by us or our competitors.
WE MAY MAKE ACQUISITIONS THAT WILL STRAIN OUR FINANCIAL AND OPERATIONAL
RESOURCES
We regularly review potential acquisitions of businesses and products.
Acquisitions involve a number of risks that might adversely affect our financial
and operational resources, including:
* diversion of the attention of senior management from important
business matters;
* amortization of substantial goodwill;
* difficulty in retaining key personnel of an acquired business;
* failure to assimilate operations of an acquired business;
* failure to retain the customers of an acquired business;
* possible operating losses and expenses of an acquired business;
* exposure to legal claims for activities of an acquired business prior
to acquisition; and
* incurrence of debt and related interest expense.
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OUR STOCK PRICE COULD BE VOLATILE, WHICH COULD RESULT IN SUBSTANTIAL LOSSES FOR
INVESTORS PURCHASING SHARES IN THIS OFFERING
The trading price of our common stock has been volatile and is likely to
continue to be volatile. The stock market in general, and the market for
healthcare-related companies in particular, has experienced extreme volatility.
This volatility has often been unrelated to the operating performance of
particular companies. Investors may not be able to sell their common stock at or
above our public offering price. Prices for the common stock will be determined
in the marketplace and may be influenced by many factors, including variations
in our financial results, changes in earnings estimates by industry research
analysts, investors' perceptions of us and general economic, industry and market
conditions.
WE MAY ISSUE PREFERRED STOCK WITH RIGHTS SENIOR TO THE COMMON STOCK
Our articles of organization authorizes the issuance of up to 2,000,000
shares of preferred stock without stockholder approval. The shares may have
dividend, voting, liquidation and other rights and preferences that are senior
to the rights of the common stock. The rights and preferences of any such class
or series of preferred stock would be established by our Board of Directors in
its sole discretion.
FUTURE SALES OF COMMON STOCK MAY DEPRESS OUR STOCK PRICE
Under this shelf process, we may sell common stock in one or more offerings
up to an aggregate amount of $100,000,000. The number and timing such sales, as
well as the volume and value of the common stock, may adversely affect the
market price of our common stock.
OUR MANAGEMENT HAS BROAD DISCRETION IN THE USE OF PROCEEDS OF ANY OFFERING
Our management has broad discretion in the use of proceeds from these
offerings. Our failure to use these funds effectively could have an adverse
effect on the market price of our common stock.
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USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of the shares of common stock
offered by us for working capital and general corporate purposes. We have
discussions on an ongoing basis regarding possible acquisitions or investments
in businesses or products that are complementary to our business. Although we
may use a portion of the net proceeds for these kinds of investments, there are
no current agreements or commitments in this regard. We may, however, change the
allocation of these proceeds in response to developments or changes that affect
our business or our industry. Pending use of the net proceeds for the above
purposes, we plan to invest such funds in short-term, investment grade,
interest-bearing securities.
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PLAN OF DISTRIBUTION
We may sell shares of common stock through agents, underwriters or dealers,
or directly to one or more purchasers.
Agents. We may designate agents who agree to use their reasonable efforts
to solicit purchases for the period of their appointment or to sell shares of
common stock on a continuing basis.
Underwriters. If we use underwriters for the sale of shares of common
stock, the underwriters will acquire the shares for their own account. The
underwriters may resell the shares in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The obligations of the underwriters to purchase
the shares will be subject to the conditions set forth in the applicable
underwriting agreement. Any public offering price and any discounts or
concessions allowed or paid to dealers may be changed from time to time.
Direct Sales. We might also sell shares of common stock to one or more
purchasers without using underwriters or agent. Underwriters, dealers and agents
that participate in the distribution of the shares may be underwriters as
defined in the Securities Act and any discounts or commissions they receive from
us and any profit on their resale of the shares may be treated as underwriting
discounts and commissions under the Securities Act. The applicable prospectus
supplement will identify any underwriters, dealers and agents and describe their
compensation. We may have agreements with the underwriters, dealers and agents
to indemnify them against certain civil liabilities, including liabilities under
the Securities Act. Underwriters, dealers and agents may engage in transactions
with or perform services for us or our subsidiaries in the ordinary course of
their businesses.
Stabilization Activities. Any underwriter may engage in over-allotment,
stabilizing transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act. Over-allotment involves
sales in excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the shares so long as the stabilizing bids
do not exceed a specified maximum. Short covering transactions involve purchases
of the shares in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the shares originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the shares to be higher than it would otherwise be. If
commenced, the underwriters may discontinue any of the activities at any time.
LEGAL MATTERS
The validity of the shares we are offering will be passed upon for us by
Hale and Dorr LLP, Boston, Massachusetts.
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EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended March 31, 2000
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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POLYMEDICA CORPORATION
COMMON STOCK
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PROSPECTUS
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November _, 2000
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You should rely only on the information contained in this prospectus. No
dealer, salesperson or other person is authorized to give information that is
not contained in this prospectus. This prospectus is not an offer to sell nor is
it seeking an offer to buy our common stock in any jurisdiction where the offer
or sale is not permitted. The information contained in this prospectus is
correct only as of the date of this prospectus, regardless of the time of the
delivery of this prospectus or any sale of our common stock.
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the sale and distribution of the shares of common stock being
registered hereby, all of which will be borne by PolyMedica. All amounts shown
are estimates except the Securities and Exchange Commission registration fee,
the NASDAQ National Market listing fee and the NASD filing fee.
Registration Fee -- Securities and Exchange Commission............... $26,400
NASDAQ National Market listing fee................................... 17,000
NASD filing fee...................................................... n/a
Blue Sky Fees........................................................ 10,000
Legal fees and expenses of PolyMedica................................ 75,000
Accounting fees and expenses......................................... 25,000
Printing............................................................. 10,000
Miscellaneous expenses............................................... 11,600
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Total Expenses............................................. $175,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 13(b)(1) of Chapter 156B of the Massachusetts General Laws allows a
corporation to eliminate or limit the personal liability of a director of a
corporation to the corporation or its shareholders for monetary damages for a
breach of fiduciary duty as a director notwithstanding any provision of law
imposing such liability, except where the director breached his duty of loyalty,
failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of an improper distribution or loan to an
insider or obtained an improper personal benefit. PolyMedica has included such a
provision in its restated articles of organization.
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by: (i) the articles of organization, (ii) a
by-law adopted by the shareholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. The restated articles
of organization of PolyMedica contain provisions to the effect that each
director, officer and employee of PolyMedica shall be indemnified by PolyMedica
against expenses, judgments and fines incurred in connection with any legal
proceedings to which he may be made a party or with which he may become involved
or threatened by reason of having been an officer, director or employee of
PolyMedica or of any other organization at the request of PolyMedica. The
provisions include indemnification with respect to matters covered by a
settlement. Any such indemnification shall be made unless it is determined by a
majority vote of a quorum of the Board of Directors, a majority vote of a quorum
of disinterested shareholders, independent legal counsel or a court, that
indemnification is improper in the circumstances because the person seeking
indemnification has not met the applicable standards of conduct. It must be
determined that the director, officer or employee acted in good faith with the
reasonable belief that his action was in the best interests of PolyMedica, and,
with respect to any criminal action or proceeding, that he had no reasonable
cause to believe his conduct was unlawful.
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<PAGE> 18
PolyMedica has purchased directors' and officers' liability insurance which
would indemnify its directors and officers against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 Restated Articles of Organization of the Registrant(1)
4.2 Restated By-Laws of the Registrant(1)
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1 filed herewith)
24.1 Power of Attorney (See page II-4 of this Registration Statement)
----------
(1) Incorporated herein by reference to the exhibits to the Registrant's
Registration Statement on Form S-1 (File No. 33-45425)
ITEM 17. UNDERTAKINGS.
Item 512(a) of Regulation S-K. 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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(b) To reflect in the prospectus any facts 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. Notwithstanding the
foregoing, any increase or decrease in the 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 and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculations of Registration Fee"
table in the effective Registration Statement; and
(c) 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 (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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; and
(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.
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<PAGE> 19
Item 512(b) of Regulation S-K. The Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
Item 512(h) of Regulation S-K. 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 indemnification provisions
described herein, 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 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.
Item 512(i) of Regulation S-K. 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.
(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.
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<PAGE> 20
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-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF WOBURN, COMMONWEALTH OF MASSACHUSETTS, ON NOVEMBER
15, 2000.
POLYMEDICA CORPORATION
By:/s/ Eric G. Walters
---------------------------------
Eric G. Walters
Chief Financial Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of PolyMedica Corporation,
hereby severally constitute and appoint Steven J. Lee, Arthur A. Siciliano,
Eric G. Walters, John K.P. Stone, III, and Thomas L. Barrette, Jr. and each of
them singly, our true and lawful attorneys with full power to any of them, and
to each of them singly, to sign for us and in our names in the capacities
indicated below the Registration Statement on Form S-3 filed herewith and any
and all pre-effective and post-effective amendments to said Registration
Statement, and any subsequent Registration Statement for the same offering or
for any additional offerings (as contemplated by the Registration Statement
filed herewith) which may be filed under Rule 415 or Rule 462, and generally to
do all such things in our name and on our behalf in our capacities as officers
and directors to enable PolyMedica Corporation to comply with the provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto or to any subsequent Registration
Statement for the same offering or for any additional offerings (as contemplated
by this Registration Statement filed herewith) which may be filed under Rule 415
or Rule 462.
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 INDICATED ON NOVEMBER 15, 2000.
SIGNATURE TITLE
/s/ Steven J. Lee Chief Executive Officer and
------------------------------- Chairman of the Board of Directors.
STEVEN J. LEE (Principal Executive Officer)
/s/ Eric G. Walters Chief Financial Officer
------------------------------- (Principal Financial Officer and Principal
ERIC G. WALTERS Accounting Officer)
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<PAGE> 21
/s/ Daniel S. Bernstein Director
-------------------------------
DANIEL S. BERNSTEIN
/s/ Herbert A. Denton Director
-------------------------------
HERBERT A. DENTON
/s/ Marcia J. Hooper Director
-------------------------------
MARCIA J. HOOPER
/s/ Frank W. Logerfo Director
-------------------------------
FRANK W. LOGERFO
/s/ Thomas S. Soltys Director
-------------------------------
THOMAS S. SOLTYS
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<PAGE> 22
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 Restated Articles of Organization of the Registrant(1)
4.2 Restated By-Laws of the Registrant(1)
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hale and Dorr LLP (Included in Exhibit 5.1 filed herewith)
24.1 Power of Attorney (See page II-4 of this Registration Statement)
----------
(1) Incorporated herein by reference to the exhibits to the Registrant's
Registration Statement on Form S-1 (File No. 33-45425)
II-6
