SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Encore Medical Corporation
(Exact name of registrant as specified in its charter)
Delaware 65-0572565
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9800 Metric Blvd.
Austin, Texas 78758
(Address of principal executive offices) (Zip Code)
ENCORE MEDICAL CORPORATION
1996 INCENTIVE STOCK PLAN
(Full title of the Plan)
Harry L. Zimmerman
Executive Vice President - General Counsel
Encore Medical Corporation
9800 Metric Blvd.
Austin, Texas 78758
(512) 832-9500
(Name, Address, including zip code and telephone
number, including area code, of agent of service)
COPY TO:
Richard S. Roth
Jackson Walker L.L.P.
1100 Louisiana, Suite 4200
Houston, Texas 77002
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price (1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock
$0.001 par value 1,000,000 Shares $3.33 $3,330,000 $306.36
====================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h), the offering price and
registration fee are computed on the basis of the average of the high
and low prices of the Common Stock, as reported by the NASDAQ
consolidated national market on July 12, 2002.
EXPLANATORY NOTE
Encore Medical Corporation, a Delaware corporation (the "Registrant"),
hereby files this registration statement on Form S-8 (this "Registration
Statement") with the Securities and Exchange Commission (the "SEC") on July 15,
2002 for the purpose of registering an additional 1,000,000 shares of common
stock, par value $0.001 per share (the "Common Stock") issuable upon (i) the
exercise of incentive and nonstatutory options and stock appreciation rights and
(ii) the grant of unrestricted stock awards, restricted stock rewards, deferred
stock awards and other stock-based awards, granted or to be granted pursuant to
the Encore Medical Corporation 1996 Incentive Stock Plan (the "1996 Plan"),
which shares are of the same class as other securities for which a registration
statement on Form S-8 (Registration No. 333-48240) was filed on October 19, 2000
(the "Prior Registration Statement"). Pursuant to General Instruction E to Form
S-8 ("General Instruction E"), the Registrant incorporates by reference herein
the contents of the Prior Registration Statement, including the information
incorporated by reference therein.
Currently, 2,000,000 shares of Common Stock are registered under the
1996 Plan. On May 16, 2002 the Registrant's stockholders authorized an increase
in the aggregate number of shares available for issuance under the 1996 Plan.
This Registration Statement registers the increase of 1,000,000 shares of Common
Stock issuable under the 1996 Plan, bringing the total number of registered
shares under the 1996 Plan to 3,000,000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities
and Exchange Commission (the "Commission") by the Company, are incorporated
herein by reference and made a part hereof:
(i) Annual Report on Form 10-K for the fiscal year ended
December 31, 2001.
(ii) Quarterly Report on Form 10-Q for the quarter ending on
March 30, 2002.
(iii) Registration Statement on Form S-4 (No. 333-22053),
effective as of February 19, 1997.
(iv) Registration Statement on Form 8-A (No. 0-26538), filed on
July 31, 1995.
(v) Registration Statement on Form S-8 (No. 333-48240), filed on
October 19, 2000.
All documents filed with the Commission pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment that indicates that all securities offered have been
sold or that 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.
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 herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein 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.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145 of the Delaware General Corporation Law ("Section 145")
permits indemnification of, and advancement of expenses to, directors, officers,
employees and agents of a corporation under certain conditions and subject to
certain limitations, as set forth below. Such indemnification and advancement of
expenses may be continued even if a person ceases to serve as a director,
officer, employee or agent of the corporation and may inure to such person's
heirs, executors or administrators.
Section 145 (a) empowers a corporation to indemnify any person who is
or was a party or is threatened to be made a party to any threatened, pending,
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, other than an action by or in the right of a corporation, by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or any other enterprise if he is or was serving such enterprise
at the request of the corporation. A corporation may indemnify such person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with an action,
suit or proceeding, if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of a
suit, action or other proceeding, or the entry of a plea of nolo contenders, or
its equivalent, does not of itself create a presumption, under Section 145, that
the person to be indemnified did not act in good faith, in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, or in the case of a criminal action, that he had reasonable cause
to believe his conduct was unlawful.
Under Section 145(b), the indemnification a corporation may offer is
extended to include indemnification for expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
an action by or in the right of a corporation, to procure a judgment in its
favor, as long as the director, officer, employee or agent to be indemnified
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation; provided, however, that such
indemnification may not be extended to cover any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Court of Chancery, or such other court
in which the action, suit or proceeding was brought, shall determine upon
application that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses as the court deems proper. In addition,
Section 145 (c) provides for mandatory indemnification by a corporation,
including indemnification for expenses (including attorneys' fees) actually and
reasonably incurred by a director, officer, employee or agent of the
corporation, in the event that such person is successful on the merits or in
defense of any covered action, or in defense of any claim, issue or matter
therein.
A corporation may indemnify a director, officer, employee or agent
only as authorized in the specific instance and only upon a determination that
indemnification is proper, given the facts and circumstances, because that
person has met the applicable standard of conduct set forth in Sections 145(a)
and (b). Section 145 (d) states that such a determination may be made by a
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majority vote of the directors who are not parties to such action, suit or
proceeding, even though the directors able to vote do not constitute a quorum,
or in the absence of any directors able to vote or at the direction of such
directors, by independent legal counsel in a written opinion, or by the
stockholders of the corporation.
Pursuant to Section 145 (e), a corporation may indemnify an officer
or director defending a civil, criminal, administrative or investigative action,
suit or proceeding in advance of the final disposition of such action, suit or
proceeding if it receives from such person or from another on behalf of such
person, an undertaking to repay any amount paid in advance if that person is
ultimately determined not to be entitled to indemnification. Expenses incurred
by other employees and agents may be so paid upon terms and conditions deemed
appropriate by the board of directors of a corporation. Pursuant to Section 145
(k), the Delaware Court of Chancery may summarily determine a corporation's
obligation to advance expenses (including attorneys' fees).
Under Section 145 (f), the indemnification and advancement of
expenses provided for by statute is not to be deemed exclusive of the other
rights persons seeking indemnification or advancement of expenses may have under
any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to actions taken in an official capacity and as to actions
taken in another capacity while holding such office.
Section 145 (g) grants a corporation power to purchase and maintain
an insurance policy insuring any person who is or was a director, officer,
employee or agent of the corporation or who is or was serving in such capacity
for another corporation, partnership, joint venture, trust or other enterprise
at the request of the corporation, which policy may insure any liability
asserted against the insured in any such capacity, or arising out of his status,
regardless of whether the corporation would otherwise have the power under
Delaware law to indemnify him against such liability.
Section 145 (h) states that the power to indemnify granted to any
"corporation" extends to any constituent corporation absorbed in a consolidation
or merger which, had its separate existence continued, would have been
authorized to extend indemnification to its officers, directors, agents and
employees. Pursuant to Section 145(i), employee benefit plans are covered as
"other enterprises" and service at the request of the corporation includes
service, as a director, officer, employee or agent of the corporation, which
imposes duties on or involves services supplied by, such person with respect to
an employee benefit plan, its beneficiaries or participants.
The Delaware Court of Chancery is vested with exclusive jurisdiction
to hear and determine actions for indemnification or advancement of expenses
brought under Section 145 or under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Certificate of Incorporation and Bylaws
The Registrant's Certificate of Incorporation, as amended, provides,
in Article Eighth, for indemnification to the fullest extent permitted by
Delaware law, specifically providing for the advancement of expenses in
accordance with Section 145(e). Moreover, Registrant's Certificate of
Incorporation provides that a director of the corporation shall not be liable to
the corporation
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or its stockholders for monetary damages for breach of a fiduciary duty as a
director, except for liability for any breach of that director's duty of loyalty
to the corporation or its stockholders, acts or omissions not in good faith or
that involve intentional misconduct or knowing violation of law, violations of
Section 174 of the Delaware General Corporation Law, which regulates directors'
liability for unlawful payments of dividends and unlawful stock purchases and
redemptions, and liability for any actions from which the director derived an
improper personal benefit.
The Bylaws of Registrant, as currently in effect, set forth the
provisions of Section 145 and, thus, also provide for indemnification to the
full extent of Delaware law.
Insurance Policy
The Registrant currently maintains an insurance policy providing
reimbursement of indemnification payments to officers and directors of the
Registrant and reimbursement of certain liabilities incurred by directors and
officers of the Registrant in their capacities as such, to the extent that they
are not indemnified by the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Certificate of Incorporation of Encore Medical Corporation
(incorporated herein by reference to Exhibit 3.1 of the
Company's Registration Statement on Form S-4 (File No.
333-22053), filed with the Commission on February 19, 1997
(the "Company's Form S-4").
4.2 Form of Amendment to Certificate of Incorporation of Encore
Medical Corporation (incorporated herein by reference to
Exhibit 3.2 of the Company's Registration Statement on the
Company's Form S-4).
4.3 Amendment to Certificate of Incorporation of Encore Medical
Corporation dated March 19, 2002 (incorporated herein by
reference to Appendix B of the Company's Definitive Proxy
Statement (File No. 000-26538) filed with the Commission on
April 18, 2002).
4.4 Bylaws of Encore Medical Corporation (incorporated herein by
reference to Exhibit 3.3 of the Company's Form S-4).
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4.5 Form of certificate evidencing ownership of the Common Stock of
Encore Medical Corporation (incorporated herein by reference to
Exhibit 4.1 of the Company's Form S-4).
5.1 Opinion of Jackson Walker L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Jackson Walker L.L.P. (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page of this
Registration Statement).
99 Encore Medical Corporation 1996 Incentive Stock Plan as amended
(incorporated herein by reference to Exhibit 10.23 of the
Company's 2001 Form 10-K).
Item 9. Undertakings.
(a) Rule 415 Offering. 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 to
include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
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
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) Subsequent Exchange Act Documents. The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 that
time shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. 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 Commission such indemnification is against public policy
as expressed
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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.
POWER OF ATTORNEY
Each person whose signature appears below authorizes Kenneth W. Davidson
or Harry L. Zimmerman to execute in the name of each such person who is then an
officer or director of the Registrant, and to file any amendments to this
Registration Statement necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in respect thereof, in
connection with the registration of the securities that are the subject of this
Registration Statement, which amendments may make such changes to such
Registration Statement as such attorney may deem appropriate.
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SIGNATURE PAGE
Pursuant to the requirements of the Securities Act of 1933, as
amended, Encore Medical 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 Austin, State of Texas,
on July 15, 2002.
ENCORE MEDICAL CORPORATION
/s/ Kenneth W. Davidson
By: ________________________________
Kenneth W. Davidson
Chief Executive Officer
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 and on July 15, 2002.
Signatures Title
---------- -----
/s/ Kenneth W. Davidson Chief Executor Officer,
________________________ Chairman of the Board
Kenneth W. Davidson
/s/ John H. Abeles, M.D.
________________________ Director
John H. Abeles, M.D.
/s/ Nicholas Cindrich
________________________ Director
Nicholas Cindrich
/s/ August Faske
________________________ Executive Vice President - Chief
August Faske Financial Officer
(Principal Accounting and
Financial Officer)
/s/ Zubeen Shroff
________________________ Director
Zubeen Shroff
/s/ Bruce F. Wesson
________________________ Director
Bruce F. Wesson
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Signatures Title
---------- -----
/s/ Jay M. Haft
_______________________ Director
Jay M. Haft
/s/ Joel S. Kanter
_______________________ Director
Joel S. Kanter
/s/ Richard O. Martin
_______________________ Director
Richard O. Martin, Ph.D.
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Certificate of Incorporation of Encore Medical Corporation
(incorporated herein by reference to Exhibit 3.1 of the
Company's Registration Statement on Form S-4 (File No.
333-22053), filed with the Commission on February 19, 1997
(the "Company's Form S-4).
4.2 Form of Amendment to Certificate of Incorporation of Encore
Medical Corporation (incorporated herein by reference to
Exhibit 3.2 of the Company's Registration Statement on the
Company's Form S-4).
4.3 Amendment to Certificate of Incorporation of Encore Medical
Corporation dated March 19, 2002 (incorporated herein by
reference to Appendix B of the Company's Definitive Proxy
Statement (File No. 000-26538) filed with the Commission on
April 18, 2002).
4.4 Bylaws of Encore Medical Corporation (incorporated herein by
reference to Exhibit 3.3 of the Company's Form S-4).
4.5 Form of certificate evidencing ownership of the Common Stock
of Encore Medical Corporation (incorporated herein by
reference to Exhibit 4.1 of the Company's Form S-4).
5.1 Opinion of Jackson Walker L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Jackson Walker L.L.P. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page of this
Registration Statement).
99 Encore Medical Corporation 1996 Incentive Stock (incorporated
herein by reference to Exhibit 10.23 of the Company's 2001
Form 10-K).
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