As filed with the Securities and Exchange Commission on June 11, 1999
Registration No. 333-79705
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
EXACTECH, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 59-2603930
------------------------------- -------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2320 N.W. 66TH COURT
GAINESVILLE, FLORIDA 32653
(352) 377-1140
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
-----------------
TIMOTHY J. SEESE
PRESIDENT
2320 N.W. 66TH COURT
GAINESVILLE, FLORIDA 32653
(352) 377-1140
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
Copies of communications to:
FERN S. WATTS, ESQ.
GREENBERG TRAURIG, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0500
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
-------------------
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 (the "Securities Act"), other than securities offered
only in connection with dividend or interest reinvestment plans, check the
following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
[ ] If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value.......................... 198,254 shares 11.375 2,255,139.25 626.93
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Determined pursuant to Rule 457 under the Securities Act of 1933, as
amended, for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
PROSPECTUS
EXACTECH, INC.
198,254 SHARES OF COMMON STOCK
---------------
The selling shareholders are offering 198,254 shares of our common
stock under this prospectus. The shares of common stock offered constitute
shares issuable upon the exercise of (1) warrants originally issued by us to the
underwriter of our initial public offering, (2) warrants issued by us to a
shareholder in connection with the purchase of certain software, (3) warrants
issued by us in connection with our Series A Preferred Stock and (4) warrants
issued by us in connection with our 8% Debentures.
Our common stock trades on the Nasdaq National Market under the symbol
"EXAC." On June 9, 1999, the closing price of one share of common stock on the
Nasdaq National Market was $12.625
The selling shareholders may offer the shares of common stock through
public or private transactions, on or off the Nasdaq National Market, at
prevailing market prices or at privately negotiated prices. They may make sales
directly to purchasers or to or through agents, dealers or underwriters. We will
not receive any proceeds from the sale of the shares by the selling
shareholders.
---------------
YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS BEGINNING ON PAGE 2 IN
THIS PROSPECTUS.
---------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SHARES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------
The date of this Prospectus is _____________, 1999.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission Registration Fee............. $ 654.49
Legal Fees and Expenses......................................... $ 5,000.00
Accounting Fees and Expenses.................................... $ 2,000.00
Printing and Engraving Expenses................................. $ 2,500.00
Registrar and Transfer Agents Fees and Expenses................. $ 2,000.00
Miscellaneous................................................... $ 2,845.51
------------
Total....................................................... $ 15,000.00
============
All amounts except the Securities and Exchange Commission registration
fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Registrant's Articles of Incorporation provide
that the Registrant may indemnify its executive officers and directors to the
fullest extent permitted by law whether now or hereafter. The Registrant has
entered into an agreement with each of its directors and certain of its officers
wherein it has agreed or will agree to indemnify each of them to the fullest
extent permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (b)
deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; and (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ -------------------------------------------------------------
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Greenberg Traurig, P.A. (to be included in Exhibit 5.1)
ITEM 17. 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
II-1
<PAGE>
required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in
the prospectus any facts or events arisingafter 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; (2) that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 (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 of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been, settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE>
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-3 and has duly caused this Amendment
No. 1 to Form S-3 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Gainesville, State of Florida, on June 11, 1999.
EXACTECH, INC.
By: /s/ WILLIAM PETTY, M.D.
--------------------------------------------
William Petty, M.D.
Chairman of the Board and Chief Executive
Officer
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, this Amendment No. 1 to the registration statement has
been signed below by the following persons on behalf of the registrant and in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM PETTY, M.D.
- ---------------------------- Chairman of the Board and June 11, 1999
William Petty, M.D. Chief Executive Officer
(principal executive officer)
/s/ TIMOTHY J. SEESE President, Chief Operating Officer June 11, 1999
- ---------------------------- and Director
Timothy J. Seese
/s/ JOEL C. PHILLIPS Chief Financial Officer June 11, 1999
- ---------------------------- (principal financial officer and
Joel C. Phillips principal accounting officer)
/s/ GARY J. MILLER, PH.D.
- ---------------------------- Vice President and Director June 11, 1999
Gary J. Miller, Ph.D.
/s/ R. WYNN KEARNEY, JR., M.D.
- ------------------------------ Director June 11, 1999
R. Wynn Kearney, Jr., M.D.
/s/ E. RONALD PICKARD
- ---------------------------- Director June 11, 1999
E. Ronald Pickard
/s/ PAUL METTS
- ---------------------------- Director June 11, 1999
Paul Metts
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
--------- ---------------
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Deloitte & Touche LLP
EXHIBIT 5.1
June 11, 1999
Exactech, Inc.
2320 N.W. 66th Court
Gainesville, Florida 32653
RE: EXACTECH, INC.
-------------------------
Ladies and Gentlemen:
On June 2, 1999, Exactech, Inc., a Florida corporation (the "Company"),
filed with the Securities and Exchange Commission a Registration Statement on
Form S-3 (Registration No. 333-79705) (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"). Such Registration Statement
relates to the sale by certain stockholders of 198,254 shares (the "Shares") of
the Company's Common Stock, par value $0.01 per share (the "Common Stock"). We
have acted as counsel to the Company in connection with the preparation and
filing of the Registration Statement.
In connection therewith, we have examined and relied upon copies of
(i) the Company's Amended and Restated Articles of Incorporation and the
Company's Amended and Restated Bylaws; (ii) resolutions of the Company's Board
of Directors authorizing the offering and the issuance of the Shares to be sold
by the Company and related matters; (iii) the Registration Statement and all
amendments and exhibits thereto; and (iv) such other documents and instruments
as we have deemed necessary for the expression of opinions herein contained. In
making the foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to various questions of fact material to
this opinion, we have relied, to the extent we deemed reasonably appropriate,
upon representations or certificates of officers or directors of the Company,
without independently verifying the accuracy of such documents, records and
instruments.
Based upon the foregoing examination, we are of the opinion that the
Shares have been duly and validly authorized and, when issued and delivered
by the Company will be validly issued, fully paid and nonassessable.
<PAGE>
Exactech, Inc.
June 11, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the caption
"Legal Matters" in the prospectus comprising a part of the Registration
Statement. In giving such consent, we do not thereby admit that we are included
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations promulgated thereunder.
Very truly yours,
GREENBERG TRAURIG, P.A.
/s/ GREENBERG TRAURIG
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Exactech, Inc. on Form S-3 of our report dated February 12, 1999,
appearing in the Annual Report on Form 10-K, of Exactech, Inc. for the year
ended December 31, 1998 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
- ------------------------------------
Deloitte & Touche LLP
Certified Public Accountants
Jacksonville, Florida
June 11, 1999
