As filed with the Securities and Exchange Commission on November 15, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EXACTECH, INC.
(Exact name of registrant as specified in its charter)
Florida 59-2603930
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
2320 N.W. 66th Court
Gainesville, Florida 32653
(Address of Principal Executive Offices)
Exactech, Inc. Employee Stock Option and Incentive Plan
Exactech, Inc. Directors Stock Option Plan
(Full title of the Plan)
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William Petty, M.D.
Chairman of the Board and Chief Executive Officer
Exactech, Inc.
2320 N.W. 66th Court
Gainesville, Florida 32653
(Name and address of agent for service)
(352) 377-1140
(Telephone number, including area code, of agent for service)
Copy to:
Fern S. Watts, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0692
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered registered per share(1) offering price(1) registration fee
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value................ 720,041 shares $3.28 - $14.62 $7,460,859.20 $1,939.82
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of (i) the actual
prices of $3.28, $6.67, $7.125, $7.50, $7.75, $7.875, $8.00, $8.80, $9.00,
$10.62, $11.69, $12.81, $13.06, $13.75 and $14.62 for an aggregate of
49,102, 72,068, 14,000, 9,000, 19,000, 20,000, 216,250, 70,000, 6,000,
47,306, 27,280, 24,500, 5,000, 1,000 and 4,500 options, respectively, to
purchase Common Stock being registered, which have already been granted
under the Exactech, Inc. Employee Stock Option and Incentive Plan and the
Exactech, Inc. Directors Stock Option Plan and (ii) the average of the
high and low sale price of the Common Stock on November 13, 2000 with
respect to 135,035 shares of Common Stock subject to future grants of
options under the Exactech, Inc. Employee Stock Option and Incentive Plan
and the Exatech, Inc. Directors Stock Option Plan.
Page 1 of 4
Exhibit Index at Page 4
<PAGE>
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* The document containing the information specified in this Part I will be sent
or given to employees as specified by Rule 428(b)(1). Such documents will not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as the prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Registration Statement, taken together, shall constitute a prospectus
which meets the requirements of Section 10(a) of the Securities Act of 1933,
as amended.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this
Registration Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") since the end of fiscal year 1999; and
(c) the descriptions of the Registrant's Common Stock and
related matters set forth under the captions "Description of Capital Stock" and
"Dividend Policy" in the Registrant's Registration Statement on Form S-1 (File
No. 333-02980) filed under the Securities Act of 1933, as amended (the "Act"),
including any amendments to such descriptions in such Registration Statement.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of filing of such 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 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 either now or hereafter.
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 criminal laws, 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.
At present, there is no pending litigation or proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
Item 7. Exemption from Registration Claimed.
Not applicable.
2
<PAGE>
Item 8. Exhibits
See "Exhibit Index" included herein.
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 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 (a)(1)(i) and (a)(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 by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any
liability under the 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 Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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
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 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.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the 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
Gainesville, State of Florida on November 15, 2000.
EXACTECH, INC.
By:/s/ William Petty
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William Petty
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints William Petty his true and lawful
attorney-in-fact, acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitutes, each acting alone, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William Petty Chairman of the Board and Chief November 15, 2000
--------------------------------------- Executive Officer (principal
William Petty executive officer)
/s/ Timothy J. Seese President, Chief Operating November 15, 2000
--------------------------------------- Officer and Director
Timothy J. Seese Officer and Director
/s/ Gary J. Miller Vice President and Director November 15, 2000
---------------------------------------
Gary J. Miller
/s/ Joel C. Phillips Chief Financial Officer November 15, 2000
--------------------------------------- (principal financial officer
Joel C. Phillips and principal accounting officer)
Director November __, 2000
---------------------------------------
Albert Burstein
--------------------------------------- Director November __, 2000
Wynn Kearney, Jr.
Director November __, 2000
---------------------------------------
Paul E. Metts
</TABLE>
4
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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3.1 Registrant's Articles of Incorporation, as
amended(1)
3.2 Form of Articles of Amendment to Articles of
Incorporation(2)
3.3 Registrant's Amended and Restated Bylaws(3)
4.3 Exactech, Inc. Directors Stock Option Plan(4)
4.4 Exactech, Inc. Employee Stock Option and
Incentive Plan(5)
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in
its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures
section of this Registration Statement
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(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-02980).
(2) Incorporated by reference to Exhibit 3.3 filed with the Registrant's
Amendment No. 2 to the Registration Statement on Form S-1 (File No.
333-02980).
(3) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Registration Statement on Form S-1 (File No.333-02980).
(4) Incorporated by reference to Exhibit 10.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-02980).
(5) Incorporated by reference to Exhibit 10.2 filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-02980).
