Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Biomet, Inc.
(Exact name of registrant as specified in its charter)
Indiana 35-1418342
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Post Office Box 587
Airport Industrial Park
Warsaw, Indiana 46581-0587
(Address of Principal Executive Offices)
1998 Biomet, Inc. Qualified and Non-Qualified Stock Option Plan
(Full title of the plan)
Daniel P. Hann, Vice President and General Counsel
Biomet, Inc.
Post Office Box 587
Airport Industrial Park
Warsaw, Indiana 46581-0587
(Name and address of agent for service)
(219) 372-1539
(Telephone number, including area code, of agent for service)
Copies to:
Berkley W. Duck
Ice Miller Donadio & Ryan
One American Square, Box 82001
Indianapolis, Indiana 46282
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Proposed Proposed
maximum maximum
Title of Amount offering aggregrate Amount
securities to to be price offering of regis-
be registered registered per unit price(1) tration fee
________________________________________________________________________________
Common Shares 7,000,000 shares $33.75 $236,250,000 $69,693.75
________________________________________________________________________________
(1) The registration fee has been calculated pursuant to Rule 457(c) and (h)
based upon the average of the high and low prices reported for the Common Shares
on September 25, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following information heretofore filed with the Securities and Exchange
Commission ("Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is incorporated herein by reference:
(a) The latest Annual Report on Form 10-K of Biomet, Inc. (the "Registrant").
(b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above.
(c) The information set forth under the caption "Description of Registrant's
Securities to be Registered" in the Registrant's Registration on Form 8-A filed
pursuant to Section 12(g) of the Exchange Act, dated September 9, 1983,
Registration No. 0-12515, including any amendments or reports filed for the
purpose of updating that description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the filing of this Registration
Statement and prior to the filing of a post-effective amendment, which indicates
that all of the securities offered hereby have been sold or which deregisters
all such securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of those documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Indiana Business Corporation Law ("IBCL"), the provisions of which govern
the Registrant, empowers an Indiana corporation to indemnify present and former
directors, officers, employees, or agents or any person who may have served at
the request of the corporation as a director, officer, employee, or agent of
another corporation ("Eligible Persons") against liability incurred in any
proceeding, civil or criminal, in which the Eligible Person is made a party by
reason of being or having been in any such capacity, or arising out of his
status as such, if the individual acted in good faith and reasonably believed
that (a) the individual was acting in the best interests of the corporation,
or (b) if the challenged action was taken other than in the individual's
official capacity as an officer, director, employee or agent, the individual's
conduct was at least not opposed to the corporation's best interests, or (c) if
in a criminal proceeding, either the individual had reasonable cause to believe
his conduct was lawful or no reasonable cause to believe his conduct was
unlawful.
The IBCL further empowers a corporation to pay or reimburse the reasonable
expenses incurred by an Eligible Person in connection with the defense of any
such claim, including counsel fees; and, unless limited by its Articles of
Incorporation, the corporation is required to indemnify an Eligible Person
against reasonable expenses if he is wholly successful in any such proceeding,
on the merits or otherwise. Under certain circumstances, a corporation may pay
or reimburse an Eligible Person for reasonable expenses prior to final
disposition of the matter. Unless a corporation's articles of incorporation
otherwise provide, an Eligible Person may apply for indemnification to a court
which may order indemnification upon a determination that the Eligible Person is
entitled to mandatory indemnification for reasonable expenses or that the
Eligible Person is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances without regard to whether his actions
satisfied the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against liability or
reasonable expenses under the IBCL, a quorum consisting of directors who are
not parties to the proceeding must (1) determine that indemnification is
permissible in the specific circumstances because the Eligible Person met the
requisite standard of conduct, (2) authorize the corporation to indemnify the
Eligible Person and (3) if appropriate, evaluate the reasonableness of expenses
for which indemnification is sought. If it is not possible to obtain a quorum
of uninvolved directors, the foregoing action may be taken by a committee of two
or more directors who are not parties to the proceeding, special legal counsel
selected by the Board or such a committee, or by the shareholders of the
corporation.
In addition to the foregoing, the IBCL states that the indemnification it
provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the articles of incorporation
or bylaws, resolution of the board of directors or shareholders, or any other
authorization adopted after notice by a majority vote of all the voting shares
then issued and outstanding. The IBCL also empowers an Indiana corporation to
purchase and maintain insurance on behalf of any Eligible Person against any
liability asserted against or incurred by him in any capacity as such, or
arising out of his status as such, whether or not the corporation would have
had the power to indemnify him against such liability.
Section 9.3 of Article IX of the Amended Articles of Incorporation and Article
VII of the Amended and Restated Bylaws of Biomet, Inc. provide certain
indemnification provisions for the benefit of directors, officers, employees
and agents of the Registrant.
The Registrant has obtained directors' and officers' liability insurance, the
effect of which is to indemnify the directors and officers of Biomet, Inc. and
its subsidiaries against certain losses caused by errors, misleading statements,
wrongful acts, omissions, neglect or breach of duty by them or any matter
claimed against them in their capacities as directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
Item 9. Undertakings.
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, as amended (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;
(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 (1)(i) and (1)(ii) shall not apply if 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.
(4) 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
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
the initial bona fide offering thereof.
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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Warsaw, State of Indiana, on September 26, 1998.
BIOMET, INC.
By: /s/ Daniel P, Hann
Daniel P. Hann, Vice President
and General Counsel
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below
constitutes and appoints Dane A. Miller, Ph.D. and Daniel P. Hann, and each or
any of them (with full power to act alone), his or her true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto those
attorneys-in-fact and agents 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 those attorneys-in-fact and
agents, or their substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on September 26, 1998.
/s/ DANE A. MILLER, Ph.D. President, Chief Executive Officer
Dane A. Miller, Ph.D. (Principal Executive Officer) and Director
/s/ GREGORY D. HARTMAN Vice President-Finance (Principal Financial Officer)
Gregory D. Hartman
/s/ JAMES W. HALLER Controller (Principal Accounting Officer)
James W. Haller
/s/ JERRY L. FERGUSON Director
Jerry L. Ferguson
/s/ DANIEL P. HANN Director
Daniel P. Hann
/s/ C. SCOTT HARRISON Director
C. Scott Harrison
/s/ M. RAY HARROFF Director
M. Ray Harroff
/s/ THOMAS F. KEARNS, JR. Director
Thomas F. Kearns, Jr.
/s/ JERRY L. MILLER Director
Jerry L. Miller
/s/ KENNETH V. MILLER Director
Kenneth V. Miller
/s/ CHARLES E. NIEMIER Director
Charles E. Niemier
/s/ NILES L. NOBLITT Chairman and Director
Niles L. Noblitt
/s/ MARILYN TUCKER QUAYLE Director
Marilyn Tucker Quayle
/s/ PROF. DR. BERNHARD SCHEUBLE Director
Prof. Dr. Bernhard Scheuble
/s/ L. GENE TANNER Director
L. Gene Tanner
BIOMET, INC.
Form S-8
INDEX TO EXHIBITS
Exhibit Number
Assigned in
Regulation S-K
Item 601 Description of Exhibit
(4) 4.1 Specimen Certificate for Common Shares of the Company.
(Incorporated by reference to Exhibit 4.1 to the Registrant's
Report on Form 10-K for the fiscal year ended May 31, 1985)
4.2 Rights Agreement between Biomet, Inc. and Lake City Bank, as
Rights Agent, dated as of December 2, 1989. (Incorporated by
reference to Exhibit 4 to Biomet, Inc. Form 8-K Current Report
dated December 22, 1989, File No. 0-12515.)
(5) 5.1 Opinion of Ice Miller Donadio & Ryan
(15) Not Applicable
(23) 23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ice Miller Donadio & Ryan (Included in Exhibit 5.1)
(24) Power of Attorney (See Signature Page)
(28) Not Applicable
EXHIBIT 5.1
September 29, 1998
Board of Directors
Biomet, Inc.
Post Office Box 587
Airport Industrial Park
Warsaw, IN 46581-0587
Ladies and Gentlemen:
We have acted as counsel to Biomet, Inc., an Indiana corporation (the
"Company"), in connection with the filing of a Registration Statement on Form
S-8 (the "Registration Statement"), with the Securities and Exchange Commission
(the "Commission") for the purposes of registering under the Securities Act of
1933, as amended (the "Securities Act"), 7,000,000 of the Company's authorized
but unissued Common Shares (the "Common Shares") issuable under the 1998
Biomet, Inc. Qualified and Non-Qualified Stock Option Plan (the "Plan").
In connection therewith, we have investigated those questions of law as we have
deemed necessary or appropriate for purposes of this opinion. We have also
examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate or other records, certificates and
other papers that we deemed necessary to examine for purposes of this opinion,
including:
1. The Company's Articles of Incorporation, together with all amendments
thereto;
2. The Bylaws of the Company, as amended to date;
3. Resolutions relating to the Plan and the Common Shares adopted by the
Company's Board of Directors (the "Resolutions");
4. A specimen certificate representing the Common Shares;
5. The Registration Statement; and
6. The Plan.
We have also relied, without investigation as to the accuracy thereof, on other
certificates of, and oral and written communications from, public officials and
officers of the Company.
For purposes of this opinion, we have assumed (i) the genuineness of all
signatures of all parties other than the Company; (ii) the authenticity of all
documents submitted to us as originals and the conformity to authentic originals
of all documents submitted to us as certified or photostatic copies; (iii) that
the Common Shares will be issued pursuant to the terms of the Registration
Statement; (iv) that the Resolutions will not be amended, altered or superseded
prior to the issuance of the Common Shares; and (v) that no changes will occur
in the applicable law or the pertinent facts prior to the issuance of the Common
Shares.
Based upon the foregoing and subject to the qualifications set forth in this
letter, we are of the opinion that the Common Shares to be issued pursuant to
the terms of the Plan are validly authorized and, when (a) the pertinent
provisions of the Securities Act and all relevant state securities laws have
been complied with and (b) the Common Shares have been delivered against payment
therefor as contemplated by the Registration Statement and the Plan, the Common
Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or under the rules and regulations of the Commission relating
thereto.
Very truly yours,
/S/
ICE MILLER DONADIO & RYAN
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANT
We consent to the incorporation by reference in this registration statement of
Biomet, Inc. on Form S-8 of our reports dated July 2, 1998, on our audits of the
consolidated financial statements and financial statement schedule of Biomet,
Inc. and subsidiaries at May 31, 1998 and 1997, and for each of the three years
in the period ended May 31, 1998, which reports are included in the Biomet, Inc.
Annual Report of Form 10-K for the year ended May 31, 1998.
/s/
PricewaterhouseCoopers LLP
South Bend, Indiana
September 25, 1998
