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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 3, 1999
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERPORE INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-3043318
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<S> <C>
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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181 TECHNOLOGY DRIVE
IRVINE, CALIFORNIA 92618-2402
(Address of Principal Executive Offices including Zip Code)
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THE INTERPORE CROSS INTERNATIONAL
1999 CONSULTANTS STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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RICHARD L. HARRISON COPY TO:
SENIOR VICE PRESIDENT -- FINANCE, CHARLES K. RUCK, ESQ.
CHIEF FINANCIAL OFFICER AND SECRETARY LATHAM & WATKINS
INTERPORE INTERNATIONAL, INC. 650 TOWN CENTER DRIVE, TWENTIETH FLOOR
181 TECHNOLOGY DRIVE COSTA MESA, CALIFORNIA 92626
IRVINE, CALIFORNIA 92618-2402 (714) 540-1235
(949) 453-3200
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(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE OFFERING PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE
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<S> <C> <C> <C> <C>
Common Stock $0.01 par value (2) 300,000 shares $6.71875 $2,015,625 $560
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(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, and
is based on the average of the high and low sales price of the Common
Stock, as reported on The Nasdaq Stock Market on August 31, 1999.
(2) Each share of Common Stock being registered hereunder, if issued prior to
the termination by the Company of its Rights Agreement, will include one
Common Share Purchase Right. Prior to the occurrence of certain events, the
Common Share Purchase Rights will not be exercisable or evidenced
separately from the Common Stock.
PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE REGISTRATION
STATEMENT AS OPTIONS GRANTED UNDER THE PLAN ARE EXERCISED.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which we filed with the Commission, are
incorporated by reference into this registration statement:
(a) The description of Common Stock contained in our registration
statement on Form 8-A filed with the Commission (File No. 000-22958).
(b) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999; and
(d) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999.
In addition, all documents which we file pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part of this registration statement 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 in this registration statement, or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
registration statement, 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 registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of Interpore International, Inc.
appearing in our Annual Report (Form 10-K) for the year ended December 31, 1998
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
financial statements are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial statements (to the
extent covered by consents filed with the Commission) given on the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of Cross Medical Products, Inc. and
Subsidiaries (formerly Danninger Medical Technology, Inc. and Subsidiaries) for
the fiscal year ended December 31, 1997 have been audited by
PricewaterhouseCoopers L.L.P., independent accountants, as set forth in their
report thereon included in our
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Annual Report on Form 10-K for the fiscal year ended December 31, 1998 and
incorporated herein by reference. Such financial statements and schedules are,
and audited financials and schedules to be included in subsequently filed
documents will be, incorporated herein on reliance upon the reports of
PricewaterhouseCoopers L.L.P. pertaining to such financial statements and
schedules (to the extent covered by consents filed with the Commission) given
upon the authority of such firm as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law permits a
Delaware corporation to limit the personal liability of its directors in
accordance with the provisions set forth therein. The Certificate of
Incorporation, as amended, of the Company provides that the personal liability
of its directors shall be limited to the fullest extent permitted by applicable
law.
Section 145 of the Delaware General Corporation Law contains provisions
permitting corporations to indemnify any person who is or was a director,
officer, employee or agent of the corporation, or who is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, in
accordance with the provisions set forth therein. The Bylaws of the Company
generally provide for indemnification of such persons to the fullest extent
allowed by applicable law.
The inclusion of the above provisions in the Certificate of Incorporation
may have the effect of reducing the likelihood of stockholder derivative suits
against directors and may discourage or deter stockholders or management from
bringing a lawsuit against directors for breach of their duty of care, even
though such an action, if successful, might otherwise have benefited the Company
and its stockholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits on Page 6.
ITEM 9. UNDERTAKINGS.
(a) 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
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(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 (a)(1)(i) and (a)(1)(ii) do
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.
(b) The undersigned 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 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.
(c) 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,
Interpore International, Inc., a Delaware corporation, 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 Irvine,
State of California, on this 1st day of September, 1999.
Interpore International, Inc.
By: /s/ DAVID C. MERCER
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David C. Mercer, Chairman of the
Board and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
David C. Mercer and Richard L. Harrison as attorneys-in-fact and agents, each
acting alone, with full power of substitution and resubstitution, to sign on his
behalf, individually and in the capacities stated below, and to file any and all
amendments, including post-effective amendments, to this Registration Statement
and other documents in connection therewith, with the Commission, granting to
said attorney-in-fact and agent full power and authority to perform any other
act on behalf of the undersigned required to be done in the premises.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities as of September 1, 1999.
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Signature Title
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<S> <C>
/s/ DAVID C. MERCER Chairman of the Board, Chief Executive Officer and Director
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David C. Mercer
/s/ JOSEPH A. MUSSEY President, Chief Operating Officer and Director
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Joseph A. Mussey
/s/ RICHARD L. HARRISON Senior Vice President-Finance, Chief Financial Officer and
- ----------------------------- Secretary (Principal Financial and Accounting Officer)
Richard L. Harrison
/s/ WILLIAM A. EISENECHER Director
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William A. Eisenecher
/s/ DANIEL A. FUNK, M.D. Director
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Daniel A. Funk, M.D.
/s/ G. BRADFORD JONES Director
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G. Bradford Jones
/s/ ROBERT J. WILLIAMS Director
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Robert J. Williams
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INDEX TO EXHIBITS
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EXHIBIT PAGE
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4.1 Rights Agreement dated November 19, 1998 between Interpore International, Inc. (Note 1)
and U.S. Stock Transfer Corporation.
5.1 Opinion of Latham & Watkins 7
23.1 Consent of Latham & Watkins (included in Exhibit 5.1) 7
23.2 Consent of Ernst & Young LLP, Independent Auditors 8
23.3 Consent of PricewaterhouseCoopers L.L.P., Independent Accountants 9
24 Power of Attorney (included in the signature page to this Registration Statement) 5
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(1) Incorporated by reference to our Current Report on Form 8-K dated
December 1, 1998.
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EXHIBIT 5.1
[Latham & Watkins Letterhead]
September 1, 1999
Board of Directors
Interpore International, Inc.
181 Technology Drive
Irvine, California 92618-2402
Re: Registration Statement on Form S-8
Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act"), of an aggregate of 300,000 shares (the "Shares") of common
stock, par value $0.01 per share, of Interpore International, Inc., a Delaware
company (the "Company") issuable under the Interpore Cross International 1999
Consultants Stock Option Plan (the "Plan") by the Company on a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") you have requested our
opinion with respect to the matters set forth below.
We have made such legal and factual examinations and inquiries, including
an examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of
the General Corporation Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of any other laws.
Subject to the foregoing and in reliance thereon, we are of the opinion
that, as of the date hereof, upon the issuance and sale of the Shares, each in
the manner contemplated by the Registration Statement and each in accordance
with the terms of the Plan, and subject to the Company completing all action and
proceedings required on its part to be taken prior to the issuance of the Shares
pursuant to the terms of the Plan and the Registration Statement, including,
without limitation, collection of required payment for the Shares, the Shares
will be legally and validly issued, fully paid and nonassessable securities of
the Company.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Interpore Cross
International 1999 Consultants Stock Option Plan and to the incorporation by
reference therein of our report dated February 3, 1999, with respect to the
consolidated financial statements and schedule of Interpore International, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Irvine, California
September 1, 1999
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-8 pertaining to the Interpore Cross
International 1999 Consultants Stock Option Plan and to the incorporation by
reference therein of our report dated February 4, 1998 (except as to Note 11 for
which the date is February 11, 1998), with respect to the consolidated financial
statements and schedules of Cross Medical Products, Inc. and Subsidiaries
(formerly Danninger Medical Technology, Inc. and Subsidiaries) included in the
Interpore International, Inc. Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 as filed with the Securities and Exchange Commission.
/s/ PRICEWATERHOUSECOOPERS L.L.P.
Columbus, Ohio
September 2, 1999
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