As filed with the Securities and Exchange Commission on August 24, 2001
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
Interpore International, Inc.
(Exact name of registrant as specified in its charter)
____________________
Delaware 3842 95-3043318
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
181 Technology Drive
Irvine, California, 92618-2402
(949) 453-3200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________________
Richard L. Harrison
Senior Vice President--Finance, Chief Financial Officer and Secretary
Interpore International, Inc.
181 Technology Drive,
Irvine, California, 92618-2402
(949) 453-3200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Charles K. Ruck
David B. Allen
Latham & Watkins
650 Town Center Drive, 20/th/ Floor
Costa Mesa, California 92626-1925
(714) 540-1235
____________________
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement is declared 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, 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,
check the following box. [_] ____
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Amount to Proposed Maximum Proposed Maximum
Title of Securities be Offering Price per Aggregate Amount of
to be Registered Registered (1) share (2) Offering Price (2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share
(including the associated preferred
share purchase rights) (3) 2,399,946 shares $7.65 $18,359,587 $4,590
- -----------------------------------------------------------------------------------------------------------------------------------
(1) The shares of Common Stock set forth in the Calculation of Registration Fee
Table, and which may be offered pursuant to this registration statement,
include, pursuant to Rule 416 of the Securities Act, such additional number
of shares of Common Stock as may be issuable as a result of any stock
splits, stock dividends or similar events.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of computing the amount of the registration
fee, based upon the average of the high and low trading prices of the
Common Stock on The Nasdaq Stock Market on August 23, 2001.
(3) Each share of the registrant's common stock being registered hereunder, if
issued prior to the termination by the registrant of its preferred share
rights agreement, includes Series A junior participating preferred stock
purchase rights. Prior to the occurrence of certain events, the Series A
junior participating preferred stock purchase rights will not be
exercisable or evidenced separately from the registrant's common stock and
have no value except as reflected in the market price of the share to which
they are attached.
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.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ The information in this prospectus is not complete and may be changed. The +
+ selling securityholders may not sell these securities until the registration +
+ statement filed with the securities and exchange commission if effective. +
+ This prospectus is not an offer to sell these securities and is not +
+ soliciting an offer to buy these securities in any state where the offer or +
+ sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED AUGUST 24, 2001
PROSPECTUS
INTERPORE INTERNATIONAL, INC.
2,399,946 SHARES
COMMON STOCK
On July 10, 2001, we issued 2,399,946 shares of our common stock to the
shareholders of American OsteoMedix Corporation, a Virginia corporation, or
American OsteoMedix, in connection with our acquisition of all the outstanding
share of American OsteoMedix. This prospectus may be used by former shareholders
of American OsteoMedix to resell the common stock received by them in the
American OsteoMedix acquisition transaction. We will not receive any proceeds
from the sale of shares covered by this prospectus.
Our common stock is traded on The Nasdaq Stock Market under the symbol
"BONZ". On August 23, 2001, the last reported sale price for our common stock on
The Nasdaq Stock Market was $7.55 per share.
Investing in our common stock involves a high degree of risk. See "risk
factors" beginning on page 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities 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 _______, 2001.
TABLE OF CONTENTS
PAGE
----
PROSPECTUS SUMMARY................................................... 1
RISK FACTORS......................................................... 2
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS................. 6
INCORPORATION BY REFERENCE........................................... 6
USE OF PROCEEDS...................................................... 7
PRICE RANGE OF COMMON STOCK.......................................... 7
DIVIDEND POLICY...................................................... 7
SELLING SECURITYHOLDERS.............................................. 7
DESCRIPTION OF CAPITAL STOCK......................................... 10
PLAN OF DISTRIBUTION................................................. 12
LEGAL MATTERS........................................................ 14
EXPERTS.............................................................. 14
HOW TO OBTAIN MORE INFORMATION....................................... 14
i
PROSPECTUS SUMMARY
Interpore International, Inc.
We are a medical device company with a complementary combination of spinal
implant and orthobiologic technologies, an expanding product portfolio and
distribution channels specifically addressing the spinal surgery market. Our
product portfolio addresses what we believe are two of the fastest growing areas
in the medical device industry--spinal implants and orthobiologics. Our spinal
implant products consist of titanium or stainless steel hooks, rods, plates,
spacers and screws and related instruments required for a surgeon to assemble a
construct which restores the natural anatomy of the spine, keeping it
immobilized while a bone graft eventually fuses the vertebrae. Our
orthobiologic products consist of synthetic bone graft substitute materials and
products used to derive Autologous Growth Factors (AGF). AGF fibrinogen-rich
extract is used to provide faster, more complete bone growth and enhance the
performance of our bone graft products.
Our principal executive offices are located at 181 Technology Drive,
Irvine, California, 92618, and our telephone number is (949) 453-3200.
Acquisition of American OsteoMedix Corporation
On July 10, 2001, we completed the acquisition of all outstanding capital
stock of American OsteoMedix Corporation, or AOM, a medical device manufacturing
company located in Leesburg, Virginia for a combination of stock and cash. The
stock component consisted of 2,400,000 shares of our common stock, with cash
being paid in lieu of fractional shares of our common stock. The cash component
consisted of $7,867,744, of which $500,000 was placed into escrow to cover
indemnification obligations. In addition, as a result of the acquisition, each
issued and outstanding share of AOM Common Stock may receive a pro rata portion
of additional cash consideration up to $5.0 million, contingent upon Interpore's
sales of the AOM product systems following the acquisition. The cash paid by
Interpore was drawn from Interpore's working capital.
In connection with the acquisition of AOM, we entered into an agreement
with their former shareholders in which we agreed to register for resale the
shares of our common stock issued in connection with the acquisition
transaction. All of the shares received by the former shareholders of AOM were
"restricted securities" under the Securities Act of 1993, as amended, or the
Securities Act, prior to this registration.
1
RISK FACTORS
Our business faces significant risks. The risks described below may not be
the only risks we face. Additional risks that we do not yet know of or that we
currently think are immaterial may also impair our business operations. If any
of the events or circumstances described in the following risks actually occurs,
our business, financial condition or results of operations could be materially
adversely affected and the trading price of our common stock could decline. You
should carefully consider and evaluate all of the information in this
prospectus, including the risk factors listed below.
We are dependent on a few products which may be rendered obsolete.
We anticipate that most of our revenue growth in the future, if any, will
come from our spinal implant products and from our orthobiologic products.
There can be no assurance that we will be successful in increasing sales of our
current product offering. Additionally, there can be no assurance that our
efforts to develop new products will be successful. If our development efforts
are successful, there can be no assurance that we will be successful in
marketing and selling our new products. Moreover, our competitors may develop
and successfully commercialize medical devices that directly or indirectly
accomplish what our products are designed to accomplish in a superior and less
expensive manner. If our competitors' products prove to be more successful than
ours, our products could be rendered obsolete. As a result, we may not be able
to produce sufficient sales to maintain profitability.
If we fail to compete successfully against existing or potential competitors,
our operating results may be adversely affected.
Our principal global competitors with respect to our spinal implant product
line are Medtronic Sofamor Danek USA, DePuy AcroMed, Inc., a Johnson & Johnson
company, and SYNTHES-STRATEC, Inc. Our principal global competitors with
respect to our orthobiologic products include Osteotech, Inc., GenSci
Regeneration Technologies and Wright Medical Technology. Many of these
companies have broader product lines than we do. Many potential customers have
relationships with our competitors that could make it difficult for us to
continue to penetrate the markets for our products. In addition, many of our
competitors have significantly greater resources than we do. Accordingly, they
could substantially increase the resources they devote to the development and
marketing of products that are competitive with ours.
We may not be able to develop new products that will be accepted by the market.
Our future growth will be dependent on our ability to develop and introduce
new products, including enhancements to our existing products. We cannot assure
you that we will be able to successfully develop or market new products or that
any of our future products will be accepted by our customers. If we do not
develop new products in time to meet market demand or if there is insufficient
demand for these products, our revenues and profitability may be adversely
affected.
The long-term efficacy and market acceptance of AGF is uncertain.
Because our AGF related products were introduced only recently under a
510(k) clearance, we lack long-term clinical data regarding the efficacy and
long-term results of AGF. To date, we have completed no long-term clinical
studies of AGF. If long-term studies or clinical experience indicate that
procedures involving AGF do not provide patients with improved clinical
outcomes, anticipated sales of our AGF related products may never materialize.
Our success in selling our AGF related products will depend, in large part, on
the medical community's acceptance of AGF. The medical community's acceptance
of AGF will depend upon our ability to demonstrate the efficacy of AGF and its
advantages, favorable clinical performance and cost-effectiveness. We cannot
predict whether the medical community will accept AGF or, if accepted, the
extent of its use. If long-term studies or clinical experience indicate that
AGF causes negative effects, we could be subject to significant liability. Our
strategy to increase sales of AGF is to market these products primarily to our
spinal implant customers. There is no assurance that the strategy will work,
however, and no assurance that sales of our AGF related products will increase.
We face risks related to the upgrading and expansion of our distribution
network.
We expect to continue to rely on independent agents for the domestic
distribution of both orthobiologic and spinal implant products. Independent
commissioned sales agents may represent other medical devices for a variety of
manufacturers and may not dedicate enough time or attention to selling our
products. Furthermore, we expend significant resources to train and educate new
independent agents about our products and our marketing programs. Our ability
to recruit independent sales agents has been aided by some of our competitors'
replacement of independent agents with direct sales representatives. However,
our competitors may not
2
continue to utilize direct sales representatives and we can therefore give no
assurance that we will continue to be able to attract new or retain our current
independent sales agents. There can be no assurance that we will be able to
develop an effective distribution network or that our sales force will be able
to continue to increase sales or maintain current sales levels of our products.
Product introductions or modifications may be delayed or canceled as a result of
the FDA regulatory process, which could cause our sales to decline.
The medical devices we manufacture and market are subject to rigorous
regulation by the FDA and numerous other federal, state and foreign governmental
authorities. Our failure to comply with such regulations could lead to the
imposition of injunctions, suspensions or loss of regulatory approvals, product
recalls, termination of distribution, or product seizures. In the most
egregious cases, criminal sanctions or closure of our manufacturing facility are
possible. The process of obtaining regulatory approvals to market a medical
device, particularly from the FDA, can be costly and time-consuming, and there
can be no assurance that such approvals will be granted on a timely basis, if at
all. The regulatory process may delay the marketing of new products for lengthy
periods and impose substantial additional costs or it may prevent the
introduction of new products altogether. In particular, the FDA permits
commercial distribution of a new medical device only after the FDA has cleared a
510(k) premarket notification or has approved a Premarket Approval application,
or PMA, for such device. The FDA will clear marketing of a medical device
through the 510(k) process if it is demonstrated that the new product is
substantially equivalent to other 510(k)-cleared products. The PMA approval
process is more costly, lengthy and uncertain than the 510(k) premarket
notification process. There can be no assurance that any new products we
develop will be subject to the shorter 510(k) clearance process and therefore
significant delays in the introduction of any new products that we develop may
occur. We anticipate that many of our products that are in final development
will be eligible for the 510(k) premarket notification process. If the FDA does
not clear marketing of our products in final development through the 510(k)
clearance process, we will be forced to comply with the PMA approval process in
order to obtain FDA approval for these products. If we choose to go through the
PMA approval process, there will be significant costs and delays in the
introduction of our new products, if they are approved at all. Moreover,
foreign governmental authorities have become increasingly stringent and we may
be subject to more rigorous regulation by foreign governmental authorities in
the future. Any inability or failure of our foreign independent distributors to
comply with the varying regulations or the imposition of new regulations could
restrict such distributors' ability to sell our products internationally and
thereby adversely affect our business. All products and manufacturing
facilities are subject to continual review and periodic inspection by the FDA.
The discovery of previously unknown problems with our company or our products or
facilities may result in product labeling restrictions, recall, or withdrawal of
the products from the market. In addition, the FDA actively enforces
regulations prohibiting the promotion of medical devices for unapproved
indications. If the FDA determines that we have marketed our products for off-
label use, we could be subject to fines, injunctions or other penalties.
We may be subject to product liability claims and our limited product liability
insurance may not be sufficient to cover the claims, or we may be required to
recall our products.
We manufacture medical devices that are used on patients in surgical
procedures, and we may be subject to product liability claims and product
recalls. The spinal implant industry has been historically litigious and we
face an inherent business risk of financial exposure to product liability
claims. Since our spinal products are often implanted in the human body,
manufacturing errors or design defects could result in injury or death to the
patient, and could result in a recall of our products and substantial monetary
damages. Any product liability claim brought against us, with or without merit,
could result in an increase to our product liability insurance premiums or our
inability to secure coverage in the future. We would also have to pay any
amount awarded by a court in excess of our policy limits. In addition, any
recall of our products, whether initiated by us or by a regulatory agency, may
result in adverse publicity for us that could have a material adverse effect on
our business, financial condition and results of operations. Our product
liability insurance policies have various exclusions, and we may be subject to a
product liability claim or recall for which we have no insurance coverage, in
which case we may have to pay the entire amount of the award or costs of the
recall. Finally, product liability insurance is expensive and may not be
available in the future on acceptable terms, or at all.
We may face challenges to our patents and proprietary rights.
We rely on a combination of patents, trade secrets and nondisclosure
agreements to protect our proprietary intellectual property. Our patent
positions and those of other medical device companies are uncertain and involve
complex and evolving legal and factual questions. There can be no assurance
that pending patent applications will result in issued patents, that patents
issued to or licensed by us will not be challenged or circumvented by
competitors or that such patents will be found to be valid or sufficiently broad
to protect our technology or to provide us with any competitive advantage.
Third parties could also obtain patents that may require licensing for the
conduct of our business, and there can be no assurance that the required
licenses would be available. We also
3
rely on nondisclosure agreements with certain employees, consultants and other
parties to protect, in part, trade secrets and other proprietary technology.
There can be no assurance that these agreements will not be breached, that we
will have adequate remedies for any breach, that others will not independently
develop substantially equivalent proprietary information or that third parties
will not otherwise gain access to our trade secrets and proprietary knowledge.
If our intellectual property is not adequately protected, our competitors could
use the intellectual property that we have developed to enhance their products
and compete more directly with us, which could result in a decrease in our
market share and profits.
The medical product industry is characterized by frequent and substantial
intellectual property litigation and competitors may resort to intellectual
property litigation as a means of competition. Intellectual property litigation
is complex and expensive, and the outcome of such litigation is difficult to
predict. Any future litigation, regardless of the outcome, could result in
substantial expense and significant diversion of the efforts of our technical
and management personnel. Litigation may also be necessary to enforce our
patents and license agreements, to protect our trade secrets or know-how or to
determine the enforceability, scope and validity of the proprietary rights of
others. An adverse determination in any such proceeding could subject us to
significant liabilities to third parties, or require us to seek licenses from
third parties or pay royalties that may be substantial. Accordingly, an adverse
determination in a judicial or administrative proceeding or failure to obtain
necessary licenses could prevent us from manufacturing or selling certain of our
products which in turn would have a material adverse effect on our business,
financial condition and results of operations.
Possible denial of third-party reimbursement could materially adversely affect
our future business, results of operations and financial condition.
In the United States, our products are purchased by hospitals, who are
reimbursed for the devices provided to their patients by third-party payors,
such as governmental programs (e.g., Medicare and Medicaid), private insurance
plans and managed care programs. These third-party payors may deny
reimbursement if they determine that a device used in a procedure was not used
in accordance with cost-effective treatment methods, as determined by the third-
party payor, or was used for an unapproved indication. Also, third-party payors
are increasingly challenging the prices charged for medical products and
services. In international markets, reimbursement and healthcare payment
systems vary significantly by country and many countries have instituted price
ceilings on specific product lines. There can be no assurance that our products
will be considered cost-effective by third-party payors, that reimbursement will
be available or, if available, that the third-party payors' reimbursement
policies will not adversely affect our ability to sell our products profitably.
We are dependent on our suppliers and the loss of any of these suppliers could
adversely affect our business.
We do not machine the components for our spinal implants or instruments;
rather, we are dependent upon several suppliers for the machining of such
components. Also, the UltraConcentrator, one of our products used to collect
AGF, is manufactured under an exclusive supply agreement with a vendor that
itself has a sole source of supply for filter material, a key component of the
UltraConcentrator. In the event that we are unable to obtain components for any
of our products, or obtain such components on commercially reasonable terms, we
may not be able to manufacture or distribute our products on a timely and
competitive basis, or at all. Any delays in product availability or costs
incurred in locating alternative suppliers could have a material adverse effect
on our operations.
The harvesting of coral is subject to regulation which could affect our ability
to obtain sufficient quantities of coral in the future.
The harvesting and import of the coral used for our coral-based
orthobiologic products must comply with the requirements of the Convention on
International Trade of Endangered Species of Wild Fauna and Flora. As a result,
we must register and obtain licensure from the U.S. Department of Fish and
Wildlife for both the import of raw coral and the export of finished product.
In the future, regulations could make the import or export of coral or coral-
derived products prohibitive and could interrupt our ability to supply product.
We cannot assure you that our supply of raw coral is sufficient, that we will be
able to obtain sufficient quantities of coral in the future or that future
regulations will not prohibit its use altogether.
Our business could be materially adversely impacted by risks inherent in
international markets.
In 2000, approximately 20% of our sales were generated outside the United
States. We expect that such sales will continue to account for a significant
portion of our revenue in the future. Our international sales subject us to
other inherent risks, including the following:
4
. fluctuations in currency exchange rates;
. regulatory, product approval and reimbursement requirements;
. tariffs and other trade barriers;
. greater difficulty in accounts receivable collection and longer
collection periods;
. difficulties and costs of managing foreign distributors;
. reduced protection for intellectual property rights in some countries;
. burdens of complying with a wide variety of foreign laws;
. the impact of recessions in economies outside the United States;
. political and economic instability; and
. seasonal reductions in business activity during the summer months in
Europe and other parts of the world.
If we fail to successfully market and sell our products in international
markets, our business, financial condition, results of operations, and cash
flows could be materially and adversely affected.
Future acquisitions could adversely affect our operations or financial results.
From time to time, we consider acquisition of technology product lines or
businesses to supplement our current product offering. Any such future
acquisitions involve risks such as the following:
. we may be exposed to unknown liabilities of acquired companies;
. our acquisition and integration costs may be higher than we anticipated
and may cause our quarterly and annual operating results to fluctuate;
. we may experience difficulty and expense in assimilating the operations
and personnel of the acquired businesses, disrupting our business and
diverting management's time and attention; and
. our relationships with key customers of acquired businesses may be
impaired, due to changes in management and ownership of the acquired
businesses.
5
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
We caution you that certain statements contained in or incorporated by
reference into this prospectus, or which are otherwise made by us or on our
behalf are forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Forward-looking statements include
statements that are predictive in nature, which depend upon or refer to future
events or conditions, which include words such as "believes," "plans,"
"anticipates," "estimates," "expects" or similar expressions. In addition, any
statements concerning future financial performance, ongoing business strategies
or prospects, and possible future actions, which may be provided by our
management, are also forward-looking statements. Forward-looking statements are
based on current expectations and projections about future events and are
subject to risks, uncertainties, and assumptions about our company, economic and
market factors and the industry in which we do business, among other things.
These statements are not guaranties of future performance and we undertake no
obligation to publicly update any forward-looking statements, whether as a
result of new information, future events or otherwise.
Actual events and results may differ materially from those expressed or
forecasted in forward-looking statements due to a number of factors. Factors
that could cause our actual performance and future events and actions to differ
materially from such forward-looking statements, include, but are not limited to
those discussed below and elsewhere in this prospectus.
INCORPORATION BY REFERENCE
The SEC's rules allow us to "incorporate by reference" into this prospectus
the information we file with the SEC. This means that we can disclose important
information to you by referring you to those filings. This information we
incorporate by reference is considered a part of this prospectus, and subsequent
information that we file with the SEC will automatically update and supersede
this information. Any such information so modified or superseded will not
constitute a part of this prospectus, except as so modified or superseded. We
incorporate by reference the following documents and any future filings we make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until
the selling securityholders sell all of the notes or the shares of common stock
offered by this prospectus:
(a) Our Annual Report on Form 10-K for the year ended December 31, 2000
(including the portions of the Proxy Statement for our 2000 Annual
Meeting of Shareowners that are incorporated therein by reference);
(b) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2001;
(c) Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001;
(d) Our Current Report on Form 8-K filed June 1, 2001; and
(e) Our Current Report on Form 8-K filed July 24, 2001; and as amended by
our Current Report on Form 8-K/A filed August 21, 2001.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (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 be a part
hereof from the date of filing of such documents. Any statement herein or
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
prospectus 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 that statement. Any such statement so
modified or superseded shall not constitute a part of this prospectus, except as
so modified or superseded. For example, the risks and uncertainties under the
heading "Risk Factors" above may change or be modified by future filings, from
time to time, as our business develops or changes and you should read those
updated risk factors.
Upon written or oral request, we will provide you with a copy of any of the
incorporated documents without charge (not including exhibits to the documents
unless the exhibits are specifically incorporated by reference into the
documents). You may submit such a request for this material to Office of the
Secretary, 181 Technology Drive, Irvine, California 92618-2402 (telephone number
(949) 453-3200).
6
USE OF PROCEEDS
The selling securityholders will receive all of the proceeds from the sales
of common stock sold by them pursuant to this prospectus. We will not receive
any proceeds from these sales.
PRICE RANGE OF COMMON STOCK
Our common stock is traded on The Nasdaq Stock Market under the symbol
"BONZ". The following table lists the intraday high and low per share sale
prices for our common stock as reported by The Nasdaq Stock Market for the
fiscal periods indicated.
High Low
-------- --------
1999
- ----
First Quarter................................. $ 5.97 $4.06
Second Quarter................................ $ 5.38 $3.88
Third Quarter................................. $ 8.25 $4.13
Fourth Quarter................................ $ 8.00 $4.94
2000
- ----
First Quarter................................. $14.25 $7.63
Second Quarter................................ $10.50 $7.50
Third Quarter................................. $12.38 $6.88
Fourth Quarter................................ $ 8.25 $3.09
2001
- ----
First Quarter................................. $ 5.38 $3.38
Second Quarter................................ $ 5.55 $3.52
Third Quarter (through August 23, 2001)....... $ 7.85 $4.95
On August 23, 2001 the last sale price of the common stock as reported on
The Nasdaq Stock Market was $7.55 per share. As of July 31, 2001 there were
approximately 620 holders of record of our common stock.
DIVIDEND POLICY
We currently do not pay any dividends on our common stock and our board of
directors has no present intention to pay dividends on our common stock.
SELLING SECURITYHOLDERS
The shares which may be resold hereunder by the selling securityholders are
shares issued by us in connection with the American OsteoMedix acquisition
transaction. The shares were originally issued in a transaction exempt from the
registration requirements of the Securities Act. Selling securityholders,
including their transferees, pledgees or donees or their successors, may from
time to time offer and sell pursuant to this prospectus any or all of their
shares of our common stock.
The following table sets forth, as of July 31, 2001, the number of shares
and percentage of our common stock owned by each selling securityholder and the
number of shares of common stock that may be offered by each selling security
holder pursuant to this prospectus. The information is based on 16,835,409
shares of our common outstanding as of July 31, 2001, which excludes 605,000
shares owned by us and held in treasury, and information provided by or on
behalf of the selling securityholders. The selling securityholders may offer
all, some or none of the shares of common stock. Because the selling
securityholders may offer all or some portion of the common stock, we cannot
estimate the amount of the common stock that will be held by the selling
securityholders upon termination of any of these sales. In addition, the
selling securityholders identified below may have sold, transferred or otherwise
disposed of all or a portion of their shares of common stock since the date on
which they provided the information regarding their shares in transactions
exempt from the registration requirements of the Securities Act.
7
Number of Shares Percentage of Number of Shares
Beneficially Owned Shares Outstanding Available for Sale
Name Before Offering Before Offering in this Offering
---- ------------------ ------------------- ------------------
American OsteoMedix Acquisition
Federico Arrizabalaga.................................... 8,064 * 8,064
Paul L. Asdourian M.D.................................... 9,916 * 9,916
Carol Bailey............................................. 166 * 166
Carole Baker-Powers...................................... 3,966 * 3,966
Mohit Bhatnagar.......................................... 417,951 2.5% 417,951
Mohit Bhatnagar, as custodian for
Radha Durga under the Maryland
Uniform Transfers to Minors Act......................... 39,667 * 39,667
Mohit Bhatnagar, as custodian for
Gauri Ganga under the Maryland
Uniform Transfers to Minors Act......................... 39,667 * 39,667
Mohit Bhatnagar, as custodian for
Nachiketa Krsna under the Maryland
Uniform Transfers to Minors Act......................... 39,667 * 39,667
Rohit Bhatnagar.......................................... 59,500 * 59,500
Rohit Bhatnagar, as custodian for
Kavita Bhatnagar under the Maryland
Uniform Transfers to Minors Act......................... 9,916 * 9,916
Rohit Bhatnagar, as custodian for
Keshav Bhatnagar under the Maryland
Uniform Transfers to Minors Act......................... 9,916 * 9,916
Mauro Cataletto.......................................... 1,660 * 1,660
Andrea Cox............................................... 3,966 * 3,966
Guy Cox.................................................. 3,966 * 3,966
Guy and Andrea Cox as Custodians for
Nathan Cox under the Maryland
Uniform Gift to Minors Act.............................. 3,966 * 3,966
Guy and Andrea Cox as Custodians for
Nicholas Cox under the Maryland
Uniform Gift to Minors Act.............................. 3,966 * 3,966
Guy and Andrea Cox as Custodians for
Olivia Cox under the Maryland
Uniform Gift to Minors Act.............................. 3,966 * 3,966
Dr. Courtney C. Cramer................................... 16,129 * 16,129
Dr. Pia Cramer........................................... 16,129 * 16,129
Kirby L. Cramer, Jr...................................... 32,259 * 32,259
Gaurov Dayal............................................. 9,916 * 9,916
Molina Dayal............................................. 69,417 * 69,417
Malhar Gore as custodian for Anuradha
Gore under the Iowa Uniform Transfers
to Minors Act........................................... 9,916 * 9,916
Malhar Gore as custodian for Manisha
Gore under the Iowa Uniform Transfers
to Minors Act........................................... 9,916 * 9,916
DP Group, Inc............................................ 12,903 * 12,903
Jon J. Dyer.............................................. 16,129 * 16,129
Kimberly C. Dyer......................................... 16,129 * 16,129
Todd Everline............................................ 415 * 415
Farhang Fracyon.......................................... 16,129 * 16,129
Amanda Furlano........................................... 166 * 166
Malhar Gore.............................................. 9,916 * 9,916
8
Number of Shares Percentage of Number of Shares
Beneficially Owned Shares Outstanding Available for Sale
Name Before Offering Before Offering in this Offering
---- ------------------ ------------------- ------------------
Gail Graham.............................................. 830 * 830
C. Scott Harrison, M.D................................... 132,263 * 132,263
Priya King............................................... 9,916 * 9,916
Priya and Phillip King, as custodian
for Eshan King under the Alabama
Uniform Transfers to Minors Act......................... 9,916 * 9,916
Brian D. Kirk Living Trust............................... 3,966 * 3,966
Cynthia L. Kirk Living Trust............................. 3,966 * 3,966
Daniel S. Kirkpatrick.................................... 9,916 * 9,916
John Kostuik............................................. 39,436 * 39,436
John G. Kovach........................................... 67,744 * 67,744
Julie Lahman............................................. 166 * 166
Christa C. Maclean....................................... 8,064 * 8,064
David Major.............................................. 3,966 * 3,966
Eric D. Major............................................ 333,831 2.0% 332,831
Lane Major............................................... 3,966 * 3,966
Lara Major............................................... 364,938 2.2% 364,938
Lara and Eric D. Major as custodians
for Alexandra Major under the Virginia
Uniform Gift to Minors Act (21)......................... 3,966 * 3,966
Lara and Eric D. Major as custodians
for Peyton Major under the Virginia
Uniform Gift to Minors Act (21)......................... 3,966 * 3,966
Mary Major............................................... 3,966 * 3,966
Sanjog Mathur............................................ 19,718 * 19,718
Richard J. and Judith L Mazzucchelli as
joint tenants with common law right of
survivorship............................................ 9,916 * 9,916
Barbara McBride.......................................... 16,959 * 16,959
Morgan Keegan & Co. as IRA custodian
for Andrew T. Rock...................................... 16,129 * 16,129
William K. Morrill, Jr................................... 16,129 * 16,129
Amy Parker............................................... 3,966 * 3,966
Lewis Parker............................................. 158,160 * 157,160
Jack Powers.............................................. 3,966 * 3,966
Christopher J. Richard................................... 16,129 * 16,129
Elizabeth E. Richard..................................... 16,129 * 16,129
Andrew T. Rock........................................... 33,752 * 33,752
Andrew T. Rock and Darlene Schuster...................... 23,871 * 23,871
Arnold M. Schwartz M.D................................... 9,916 * 9,916
Angie Smith.............................................. 166 * 166
Chris Straight........................................... 1,162 * 1,162
Greg Watko............................................... 3,321 * 3,321
Gary Wade West, Jr....................................... 16,129 * 16,129
Richard W. Woods......................................... 120,362 * 120,162
Jack Y. Yeh.............................................. 16,129 * 16,129
============= ========= =============
TOTAL................................................ 2,402,146 14.3% 2,399,946
_________________________
* Less than 1%
9
Each of the selling securityholders set forth above the caption "American
OsteoMedix Corporation" is a party to the Agreement and Plan of Merger dated as
of May 30, 2001 by and between us, OP Sub, Inc., American OsteoMedix and the
former shareholders of American OsteoMedix. Each of the following individuals,
prior to the acquisition of American OsteoMedix held the following position with
American OsteoMedix:
Eric D. Major............President and Chief Executive Officer
Lewis Parker.............Vice President and Chief Financial Officer
Mohit Bhatnagar..........Chairman of the Board of Directors
Richard Woods............Vice President, Engineering
Andrew Rock..............Vice President, Sales
Additionally, upon the consummation of the American OsteoMedix acquisition
transaction, Mr. Major became the President and Mr. Woods became a Vice
President of American OsteoMedix, a California corporation (the surviving entity
from the American OsteoMedix acquisition and one of our wholly-owned
subsidiaries), Dr. Bhatnagar and Mr. Rock entered into consulting agreements
with American OsteoMedix, a California corporation, and Mr. Parker was appointed
to our board of directors.
All of the shares received by the selling shareholders at the closing of
the American OsteoMedix transaction were "restricted securities" under the
Securities Act prior to this registration.
DESCRIPTION OF CAPITAL STOCK
The following summary description of our capital stock is qualified in its
entirety by the complete text of our Certificate of Incorporation and Bylaws, as
amended, which are incorporated herein by reference and copies of which are
available to investors upon request.
Our authorized capital stock currently consists of 50,000,000 shares of
common stock, par value $0.01, and 5,000,000 shares of preferred stock, par
value $0.01. As of July 31, 2000, there were:
. 16,835,409 shares of common stock outstanding, which excludes 605,000
shares owned by us and held in treasury;
. no shares of preferred stock outstanding;
. 4,406,000 reserved shares, none outstanding, of junior participating
preferred stock (pursuant to our Shareholder Rights Agreement);
. outstanding warrants to purchase 200,000 shares of common stock; and
. outstanding options to purchase 2,774,793 shares of common stock.
Common Stock
Holders of our common stock are entitled to one vote per share on all
matters to be voted upon by the stockholders. Subject to preferences that may
be applicable to the holders of outstanding shares of our preferred stock, if
any, the holders of our common stock are entitled to receive the lawful
dividends as may be declared by the board of directors. In the event of our
liquidation, dissolution or winding up, and subject to the rights of the holders
of outstanding shares of our preferred stock, if any, the holders of shares of
our common stock shall be entitled to receive pro rata all of our remaining
assets available for distribution to our stockholders. There are no redemption
or sinking fund provisions applicable to the our common stock. All outstanding
shares of our common stock are fully paid and nonassessable.
10
Preferred Stock
Our board of directors has the authority, without further action by our
stockholders, to issue up to 4,406,000 shares of our preferred stock in one or
more series and to fix the rights, preferences and privileges thereof, including
the dividend rights, dividend rates, conversion rights, voting rights terms of
redemption (including sinking fund provisions), redemption prices, liquidation
preferences and the number of shares constituting any series or the designation
of the series. Although it presently has no intention to do so, our board of
directors, without shareholder approval, could issue our preferred stock with
voting and conversion rights that could adversely affect the voting powers of
the holders of our common stock and the market price of the our common stock.
Issuance of our preferred stock may also have the effect of delaying, deferring
or preventing the change of control of Interpore without further action by the
stockholders and may discourage bids for the our common stock at a premium over
the market price.
Preferred Stock Purchase Rights
On November 15, 1998, our board of directors declared a dividend of one
preferred share purchase right for each share of common stock, $0.01 par value,
outstanding at the close of business on November 27, 1998, the record date. As
long as the rights are attached to our common stock, we will issue one right
(subject to adjustment) with each new share of common stock so that all shares
of common stock will have attached rights. When exercisable, each right will
entitle the registered holder to purchase from us one one-hundredth of a share
of Series A Junior Participating Preferred Stock at a price of $30.00 per one
one-hundredth of a Series A preferred share, subject to adjustment. The
description and terms of the rights are set forth in a rights agreement, dated
as of November 17, 1998, as the same may be amended from time to time, between
us and U.S. Stock Transfer Corporation, as Rights Agent which is incorporated
herein by reference.
Warrants
We have eight outstanding warrants to purchase a total of 200,000 shares of
our common stock. The warrants were initially issued to Quantic Biomedical,
Inc. for consideration in connection with our acquisition of the assets of
Quantic Biomedical through our subsidiary Interpore Orthopaedics. On June 8,
2000, two warrants became exercisable for a total of 50,000 shares of common
stock at an exercise price of $7.125 per share. On December 8, 2000, another
warrant became exercisable for an additional 50,000 shares of common stock at an
exercise price of $7.625 per share. On June 8, 2001, another warrant became
exercisable for an additional 50,000 shares of common stock at an exercise price
of $8.125 per share. On December 8, 2001, the final warrant becomes exercisable
for an additional 50,000 shares of common stock at an exercise price of $8.625
per share. No warrant may be exercised in increments of less than 10,000
shares.
Options
As of July 31, 2001, we have outstanding options, issued pursuant to our
six option plans, to purchase 2,774,793 shares of common stock at a weighted
average exercise price of $5.51 per share.
Registration Rights
In connection with the acquisition of American OsteoMedix, we entered into
an agreement with the former shareholders of American OsteoMedix in which we
agreed to register the resale of the shares of our common stock issued in
connection with the American OsteoMedix acquisition transaction. The
registration statement containing this prospectus was filed to satisfy our
obligations under that agreement.
In connection with the December 1999 acquisition of the assets of Quantic
Biomedical, Inc., we granted registration rights to two former principals of
Quantic with respect to 100,000 shares of our common stock and with respect to
200,000 shares of common stock issuable upon exercise of warrants granted to the
Quantic principals. Under the registration rights agreement between us and
these individuals, if we propose to register an offering of any of our common
stock under the Securities Act, these individuals are entitled to require us to
include all or a portion of their shares in that registration, subject to
certain conditions. The underwriters of that offering have the right to limit
the number of shares included in the registration. The former principals of
Quantic have waived their rights to participate in this Offering.
11
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is U.S. Stock
Transfer Corporation, Glendale, California.
PLAN OF DISTRIBUTION
The selling securityholders and their successors, which term includes their
transferees, pledgees or donees or their successors, may sell the common stock
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling securityholders or the purchasers. These discounts, concessions
or commissions as to any particular underwriter, broker-dealer or agent may be
in excess of those customary in the types of transactions involved.
The common stock may be sold in one or more transactions at:
. fixed prices,
. prevailing market prices at the time of sale,
. prices related to the prevailing market prices,
. varying prices determined at the time of sale, or
. negotiated prices.
These sales may be effected in transactions:
. on any national securities exchange or quotation service on which our
common stock may be listed or quoted at the time of sale, including The
Nasdaq Stock Market,
. in the over-the-counter market,
. otherwise than on such exchanges or services or in the over-the-counter
market,
. through put or call options, whether the options are listed on an
options exchange or otherwise,
. through the settlement of short sales, or
. by pledge to secure debts and other obligations.
These transactions may include block transactions or transactions in which the
same broker acts as agent on both sides of the trade.
In connection with the sale of the common stock or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers or other
financial institutions. These broker-dealers or financial institutions may in
turn engage in short sales of the common stock in the course of hedging the
positions they assume with selling securityholders. The selling securityholders
may also sell the common stock short and deliver these securities to close out
such short positions, or loan or pledge the common stock to broker-dealers that
in turn may sell these securities.
The aggregate proceeds to the selling securityholders from the sale of the
common stock offered by them hereby will be the purchase price of the common
stock less discounts and commissions, if any. Each of the selling
securityholders reserves the right to accept and, together with their agents
from time to time, to reject, in whole or in part, any proposed purchase of
common stock to be made directly or through agents. We will not receive any of
the proceeds from the offering of shares by the selling securityholders.
Our outstanding common stock is listed for trading on The Nasdaq Stock
Market.
12
In order to comply with the securities laws of some states, if applicable,
the common stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers.
The selling securityholders and any broker-dealers or agents that
participate in the sale of the common stock may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act. Profits on the sale
of the common stock by selling securityholders and any discounts, commissions or
concessions received by any broker-dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. Selling
securityholders who are deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act.
The selling securityholders and any other person participating in a
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder. Regulation M of the Exchange Act may limit
the timing of purchases and sales of any of the securities by the selling
securityholders and any other person. In addition, Regulation M may restrict
the ability of any person engaged in the distribution of the securities to
engage in market-making activities with respect to the particular securities
being distributed for a period of up to five business days before the
distribution. The selling securityholders have acknowledged that they
understand their obligations to comply with the provisions of the Exchange Act
and the rules thereunder relating to stock manipulation, particularly Regulation
M, and have agreed that they will not engage in any transaction in violation of
such provisions.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholder and any underwriter, broker-
dealer or agent regarding the sale of the common stock by the selling
securityholders.
A selling securityholder may decide not to sell any common stock described
in this prospectus. We cannot assure you that any selling securityholder will
use this prospectus to sell any or all of the common stock. Any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 of the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus. In addition, a selling securityholder may transfer, devise or gift
the common stock by other means not described in this prospectus.
With respect to a particular offering of the common stock, to the extent
required, an accompanying prospectus supplement or, if appropriate, a post-
effective amendment to the registration statement of which this prospectus is a
part will be prepared and will set forth the following information:
. the specific shares of common stock to be offered and sold,
. the names of the selling securityholders,
. the respective purchase prices and public offering prices and other
material terms of the offering,
. the names of any participating agents, broker-dealers or underwriters,
and
. any applicable commissions, discounts, concessions and other items
constituting, compensation from the selling securityholders.
Under a registration rights agreement dated as of July 10, 2001 among Eric
Major, as agent for the former shareholders of American OsteoMedix, and
Interpore, the former shareholders of American OsteoMedix have the right to have
their shares of our common stock registered on the registration statement
containing this prospectus.
We will pay all of our expenses incidental to the registration, offering
and sale of the common stock to the public, but each selling securityholder will
be responsible for payment of commissions, concessions, fees and discounts of
underwriters, broker-dealers and agents, if any, and all transfer taxes
applicable to the sale of the common stock.
13
LEGAL MATTERS
The validity of the issuance of the common stock will be passed upon for us
by Latham & Watkins, our securities counsel.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from the Interpore
International, Inc. Annual Report on Form 10-K for the year ended December 31,
2000 have been audited by Ernst & Young LLP, independent auditors, to the extent
indicated in their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of American OsteoMedix incorporated
in this prospectus by reference to our Current Report on Form 8-K filed July 24,
2001, as amended by our Current Report on Form 8-K/A filed August 21, 2001, have
been audited by Ernst & Young LLP, independent auditors, to the extent indicated
in their report, which is incorporated herein in reliance upon the authority of
said firm as experts in accounting and auditing.
HOW TO OBTAIN MORE INFORMATION
In accordance with the Exchange Act, we file reports, proxy and information
statements and other information with the Securities and Exchange Commission.
You may read and copy these reports, proxy and information statements and other
information that we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. You may obtain information on the operation of the
public reference room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains an internet site that contains reports, proxy and information
statements and other information regarding registrants (including Interpore)
that file electronically with the SEC (http://www.sec.gov). Our internet site is
http://www.interpore.com.
You also may inspect reports, proxy statements and other information about
Interpore at the offices of The Nasdaq Stock Market, Inc. National Market
System, 1735 K Street, N.W., Washington, D.C. 20006-1500.
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act. This prospectus does not contain all of the information in the
registration statement. We have omitted certain parts of the registration
statement, as permitted by the rules and regulations of the SEC. You may inspect
and copy the registration statement, including exhibits, at the SEC's public
reference room or internet site. Our statements in this prospectus about the
contents of any contract or other document are not necessarily complete. You
should refer to the copy of each contract or other document we have filed as an
exhibit to the registration statement for complete information.
14
2,399,946 SHARES
INTERPORE INTERNATIONAL, INC.
COMMON STOCK
PROSPECTUS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE OF THIS PROSPECTUS. WE ARE NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth estimated costs and expenses, all of which will be
borne by Interpore, in connection with the offering of the securities pursuant
to this registration statement:
Amount
-------------
Commission Registration Fee $ 4,590
Nasdaq Stock Market additional listing fee $ 17,500
Legal Fees and Expenses $ 50,000 *
Accounting Fees and Expenses $ 5,000 *
Miscellaneous Expenses $ 5,000 *
----------------
Total $ 82,090 *
================
*Estimated
ITEM 15. LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Certificate of Incorporation in effect as of the date hereof, (the
"Certificate") eliminates the personal liability of our directors to the
fullest extent permitted by the Delaware General Corporation Law, as amended
(the "DGCL"). Under the DGCL, the directors have a fiduciary duty to us which
is not eliminated by this provision of the Certificate and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
nonmonetary relief will remain available. In addition, each director will
continue to be subject to liability under the DGCL for breach of the director's
duty of loyalty to the Registrant, for acts or omissions which are found by a
court of competent jurisdiction to be not in good faith or involving intentional
misconduct, for knowing violations of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are prohibited by the DGCL. This
provision also does not affect the directors' responsibilities under any other
laws, such as the Federal securities laws or state or Federal environmental
laws. We maintain liability insurance for our officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors
and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) arising under Section 174 of the DGCL, or (iv)
for any transaction from which the director derived an improper personal
benefit. The DGCL provides further that the indemnification permitted thereunder
shall not be deemed exclusive of any other rights to which the directors and
officers may be entitled under the corporation's bylaws, any agreement, a vote
of stockholders or otherwise. Our Certificate eliminates the personal liability
of directors to the fullest extent permitted by Section 102(b)(7) of the DGCL
and provides that we may fully indemnify any person who was or is 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) by
reason of the fact that such person is or was one or our directors or officers,
or is or was serving at our request as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate. We are not aware of any threatened
litigation or proceeding that may result in a claim for such indemnification.
II-1
ITEM 16. INDEX TO EXHIBITS.
Exhibit
Number Description
- ------- -----------
3.01 Certificate of Incorporation of Interpore International, Inc. as amended
(1)
3.02 Bylaws of Registrant (1)
3.03 Amendment Number One to Bylaws (16)
4.01 Rights Agreement dated November 19, 1998, between Interpore
International, Inc. and U.S. Stock Transfer Corporation, which includes
the form of Certificate of Determination of the Series A Junior
Participating Preferred Stock of Interpore International, Inc. as
Exhibit A, the form of Right Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C (2)
4.02 Registration Rights Agreement dated December 8, 1999 by and between
Interpore International, Inc., John A. Dawdy and Andrew G. Hood (20)
5.01 Opinion of Latham & Watkins
10.01 Cancellation and Release Agreement dated March 1, 1993 among Registrant,
Interpore Orthopaedics, Inc., Pfizer, Inc. and Howmedica, Inc. (3)
10.02 Single Tenant Lease dated July 25, 1991 between Registrant and The
Irvine Company as amended by a Third Amendment to Lease dated December
11, 1996 (4)
10.03 Amended and Restated Loan and Security Agreement dated June 22, 1999
among Registrant, Interpore Orthopaedics, Inc., Cross Medical Products,
Inc., Interpore Cross International Inc., and Silicon Valley Bank (19)
and Loan Modification Agreement dated June 21, 2000 (22)
10.04 Amended and Restated Stock Option Plan dated March 19, 1991 (6), First
Amendment to the Amended and Restated Stock Option Plan, effective
October 15, 1991 (3); Amendment to the Amended and Restated Stock Option
Plan dated September 17, 1994 (7)
10.05 1995 Stock Option Plan (8)
10.06 Stock Option Plan for Non-Employee Directors of Interpore International
(9)
10.07 Danninger Medical Technology, Inc. Amended and Restated 1984 Non-
Statutory Stock Option Plan (10)
10.08 Danninger Medical Technology, Inc. Amended and Restated 1984 Incentive
Stock Option Plan (10)
10.09 Cross Medical Products Inc. Amended and Restated 1994 Stock Option Plan
(10)
10.10 Asset Purchase Agreement dated March 12, 1997, among Cross Medical
Products, Inc., Danninger Healthcare, Inc. and OrthoLogic Corp. (11)
10.11 Indenture concerning 8.5% Convertible Subordinated Debentures between
Cross Medical Products, Inc. and Fifth Third Bank (12)
10.12 Supplemental Indenture between Interpore International, Inc. and Cross
Medical Products, Inc. and Fifth Third Bank (5)
10.13 Form of Indemnification Agreement (13)
10.14 Schedule of Parties to Form of Indemnification Agreement (14)
10.15 Agreement between Dr. Edward Funk and Cross Medical Products, Inc. dated
February 11, 1998 (15)
10.16 Form of Employment Agreement dated July 31, 2000 / August 30, 2000
between Interpore International, Inc. and its executive officers (23)
10.17 Schedule of Parties to Form of Employment Agreement dated July 31, 2000
/ August 30, 2000 (23) 10.18 1999 Consultants Stock Option Plan (17)
10.19 Amended and Restated Employee Qualified Stock Purchase Plan dated
November 13, 1998 (18)
10.20 Asset Purchase Agreement dated December 8, 1999, by and among Interpore
Orthopaedics, Inc., Quantic Biomedical, Inc., Quantic Biomedical
Partners, John A. Dawdy and Andrew G. Hood (20)
10.21 2000 Equity Participation Plan (21)
10.22 Agreement and Plan of Merger among Interpore International, Inc., OP
Sub, Inc., American OsteoMedix Corporation and the shareholders set
forth on the signature pages thereto, dated as of May 30, 2001 (24)
21.01 Subsidiaries of the Registrant
23.01 Consent of Independent Auditors
23.02 Consent of Independent Auditors
___________________
(1) Incorporated by reference from our Registration Statement on Form S-4,
Registration No. 333-49487.
(2) Incorporated by reference from our Current Report on Form 8-K dated December
1, 1998.
(3) Incorporated by reference from our Registration Statement on Form S-1,
Registration No. 33-69872.
(4) Incorporated by reference from our Current Report on Form 8-K dated February
11, 1998.
(5) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1998.
II-2
(6) Incorporated by reference from our Registration Statement on Form S-8,
Registration No. 33-77426.
(7) Incorporated by reference from our Registration Statement on Form S-8,
Registration No. 33-86290.
(8) Incorporated by reference from our Proxy Statement for the 1994 Annual
Meeting of Shareholders.
(9) Incorporated by reference from our Proxy Statement for the 1995 Annual
Meeting of Shareholders.
(10) Incorporated by reference from our Registration Statement on Form S-8,
Registration No. 333-53775.
(11) Incorporated by reference from the Cross Medical Products, Inc. Annual
Report on Form 10-K for the year ended December 31, 1996.
(12) Incorporated by reference from the Cross Medical Products, Inc.
Registration Statement on Form S-2, Registration No. 333-02273.
(13) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1998.
(14) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1998.
(15) Incorporated by reference from the Cross Medical Products, Inc. Annual
Report on Form 10-K for the year ended December 31, 1997.
(16) Incorporated by reference from our Annual Report on Form 10-K for the
fiscal year ended December 31, 1998.
(17) Incorporated by reference from our Proxy Statement for the 1999 Annual
Meeting of Stockholders.
(18) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1999.
(19) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1999.
(20) Incorporated by reference from our Annual Report on Form 10-K for the
fiscal year ended December 31, 1999.
(21) Incorporated by reference from our Proxy Statement for the 2000 Annual
Meeting of Stockholders.
(22) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 2000.
(23) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2000.
(24) Incorporated by reference from our Current Report on Form 8-K filed July
10, 2001.
ITEM 17. UNDERTAKINGS
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3)
of the Securities Act.
(b) 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total increase or decrease
in volume of securities offered would not exceed that which was registered)
and any deviation from the low or high of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC
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.
(c) 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 clauses (a) and (b) do not apply if the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or 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 Company's annual report pursuant to
Section 13(a) or 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.
B. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions described above, or otherwise, the
Company has been advised that in
II-3
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 24th day of
August, 2001.
Interpore International, Inc.
By /s/ DAVID C. MERCER
--------------------------------------
David C. Mercer
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below on this registration statement hereby constitutes and appoints David C.
Mercer, Joseph A. Mussey and Richard L. Harrison, their true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for them and in their name, place and stead, in any and all
capacities (unless revoked in writing) to sign any and all amendments to this
registration statement to which this power of attorney is attached, including
any post-effective amendments as well as any related registration statement (or
amendment thereto) filed in reliance upon Rule 462(b) under the Securities Act
of 1933, as amended, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in connection therewith, as fully to all intents and purposes as they
might and could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue thereof.
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 on August 24, 2001.
Signature Title
/s/ David C. Mercer Chairman, Chief Executive Officer and Director
- ---------------------------------------- (Principal Executive Officer)
David C. Mercer
/s/ Richard L. Harrison Senior Vice President-Finance, Chief Financial
- ---------------------------------------- Officer and Secretary (Principal Financial and
Richard L. Harrison Accounting Officer)
/s/ Joseph A. Mussey President, Chief Operating Officer and Director
- ----------------------------------------
Joseph A. Mussey
/s/ William A. Eisenecher Director
- ----------------------------------------
William A. Eisenecher
/s/ Daniel A. Funk, M.D. Director
- ----------------------------------------
Daniel A. Funk, M.D.
/s/ David W. Chonette Director
- ----------------------------------------
David W. Chonette
/s/ Robert J. Williams Director
- ----------------------------------------
Robert J. Williams
/s/ Lewis Parker Director
- ----------------------------------------
Lewis Parker
S-1
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
3.01 Certificate of Incorporation of Interpore International, Inc. as amended
(1)
3.02 Bylaws of Registrant (1)
3.03 Amendment Number One to Bylaws (16)
4.01 Rights Agreement dated November 19, 1998, between Interpore
International, Inc. and U.S. Stock Transfer Corporation, which includes
the form of Certificate of Determination of the Series A Junior
Participating Preferred Stock of Interpore International, Inc. as
Exhibit A, the form of Right Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C (2)
4.02 Registration Rights Agreement dated December 8, 1999 by and between
Interpore International, Inc., John A. Dawdy and Andrew G. Hood (20)
5.01 Opinion of Latham & Watkins
10.01 Cancellation and Release Agreement dated March 1, 1993 among Registrant,
Interpore Orthopaedics, Inc., Pfizer, Inc. and Howmedica, Inc. (3)
10.02 Single Tenant Lease dated July 25, 1991 between Registrant and The
Irvine Company as amended by a Third Amendment to Lease dated December
11, 1996 (4);
10.03 Amended and Restated Loan and Security Agreement dated June 22, 1999
among Registrant, Interpore Orthopaedics, Inc., Cross Medical Products,
Inc., Interpore Cross International Inc., and Silicon Valley Bank (19)
and Loan Modification Agreement dated June 21, 2000 (22)
10.04 Amended and Restated Stock Option Plan dated March 19, 1991 (6), First
Amendment to the Amended and Restated Stock Option Plan, effective
October 15, 1991 (3); Amendment to the Amended and Restated Stock Option
Plan dated September 17, 1994 (7)
10.05 1995 Stock Option Plan (8)
10.06 Stock Option Plan for Non-Employee Directors of Interpore International
(9)
10.07 Danninger Medical Technology, Inc. Amended and Restated 1984 Non-
Statutory Stock Option Plan (10)
10.08 Danninger Medical Technology, Inc. Amended and Restated 1984 Incentive
Stock Option Plan (10)
10.09 Cross Medical Products Inc. Amended and Restated 1994 Stock Option Plan
(10)
10.10 Asset Purchase Agreement dated March 12, 1997, among Cross Medical
Products, Inc., Danninger Healthcare, Inc. and OrthoLogic Corp. (11)
10.11 Indenture concerning 8.5% Convertible Subordinated Debentures between
Cross Medical Products, Inc. and Fifth Third Bank (12)
10.12 Supplemental Indenture between Interpore International, Inc. and Cross
Medical Products, Inc. and Fifth Third Bank (5)
10.13 Form of Indemnification Agreement (13)
10.14 Schedule of Parties to Form of Indemnification Agreement (14)
10.15 Agreement between Dr. Edward Funk and Cross Medical Products, Inc. dated
February 11, 1998 (15)
10.16 Form of Employment Agreement dated July 31, 2000 / August 30, 2000
between Interpore International, Inc. and its executive officers (23)
10.17 Schedule of Parties to Form of Employment Agreement dated July 31, 2000
/ August 30, 2000 (23)
10.18 1999 Consultants Stock Option Plan (17)
10.19 Amended and Restated Employee Qualified Stock Purchase Plan dated
November 13, 1998 (18)
10.20 Asset Purchase Agreement dated December 8, 1999, by and among Interpore
Orthopaedics, Inc., Quantic Biomedical, Inc., Quantic Biomedical
Partners, John A. Dawdy and Andrew G. Hood (20 )
10.21 2000 Equity Participation Plan (21)
10.22 Agreement and Plan of Merger among Interpore International, Inc., OP
Sub, Inc., American OsteoMedix Corporation and the shareholders set
forth on the signature pages thereto, dated as of May 30, 2001 (24)
21.01 Subsidiaries of the Registrant
23.01 Consent of Independent Auditors
23.02 Consent of Independent Auditors
__________________
(1) Incorporated by reference from our Registration Statement on Form S-4,
Registration No. 333-49487.
(2) Incorporated by reference from our Current Report on Form 8-K dated
December 1, 1998.
(3) Incorporated by reference from our Registration Statement on Form S-1,
Registration No. 33-69872.
(4) Incorporated by reference from our Current Report on Form 8-K dated
February 11, 1998.
(5) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1998.
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(6) Incorporated by reference from our Registration Statement on Form S-8,
Registration No. 33-77426.
(7) Incorporated by reference from our Registration Statement on Form S-8,
Registration No. 33-86290.
(8) Incorporated by reference from our Proxy Statement for the 1994 Annual
Meeting of Shareholders.
(9) Incorporated by reference from our Proxy Statement for the 1995 Annual
Meeting of Shareholders.
(10) Incorporated by reference from our Registration Statement on Form S-8,
Registration No. 333-53775.
(11) Incorporated by reference from the Cross Medical Products, Inc. Annual
Report on Form 10-K for the year ended December 31, 1996.
(12) Incorporated by reference from the Cross Medical Products, Inc.
Registration Statement on Form S-2, Registration No. 333-02273.
(13) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1998.
(14) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1998.
(15) Incorporated by reference from the Cross Medical Products, Inc. Annual
Report on Form 10-K for the year ended December 31, 1997.
(16) Incorporated by reference from our Annual Report on Form 10-K for the
fiscal year ended December 31, 1998.
(17) Incorporated by reference from our Proxy Statement for the 1999 Annual
Meeting of Stockholders.
(18) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1999.
(19) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1999.
(20) Incorporated by reference from our Annual Report on Form 10-K for the
fiscal year ended December 31, 1999.
(21) Incorporated by reference from our Proxy Statement for the 2000 Annual
Meeting of Stockholders.
(22) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 2000.
(23) Incorporated by reference from our Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2000.
(24) Incorporated by reference from our Current Report on Form 8-K filed July
10, 2001.
2