10-K/A 1 d10ka.htm FORM 10-K AMENDMENT NO. 1 Form 10-K Amendment No. 1

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 10-K/A

(Amendment No. 1)

 

 

FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2007

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission File Number 0-28240

 

 

EXACTECH, INC.

(Exact name of registrant as specified in its charter)

 

 

 

FLORIDA   59-2603930

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

2320 NW 66TH COURT, GAINESVILLE, FL, 32653

(Address of principal executive offices)

(352) 377-1140

(Registrant’s telephone number, including area code)

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

(Title of each class)

  

(Name of each exchange on which registered)

Common Stock, $0.01 par value per share

Common Stock Purchase Rights

   NASDAQ Global Market

Securities registered pursuant to Section 12(g) of the Act:

None.

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Act.    Yes  ¨    No  x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ¨    No  x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  x    No  ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Act.

Large Accelerated Filer   ¨    Accelerated Filer  x    Non-Accelerated Filer  ¨    Smaller Reporting Company  ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes  ¨    No  x

As of March 7, 2008, the number of shares of the registrant’s Common Stock outstanding was 11,690,389. The aggregate market value of the Common Stock held by non-affiliates of the registrant as of June 30, 2007 was approximately $109,668,000 based on a closing sale price of $16.08 for the Common Stock as reported on the NASDAQ Global Market on such date. For purposes of the foregoing computation, all executive officers, directors and five percent beneficial owners of the registrant are deemed to be affiliates. Such determination should not be deemed to be an admission that such executive officers, directors or five percent beneficial owners are, in fact, affiliates of the registrant.

DOCUMENTS INCORPORATED BY REFERENCE

The information required by Part III (Items 10, 11, 12, and 13) is incorporated by reference from the registrant’s definitive proxy statement for its 2008 Annual Meeting of Shareholders (to be filed pursuant to Regulation 14A)

 

 

 

Explanatory Note

Exactech, Inc. (the “Company”) is filing this Amendment No. 1 (“Amendment No. 1”) to its Annual Report on Form 10-K for the fiscal year ended December 31, 2007, which was originally filed on March 14, 2008 (the “Original Filing”). This Amendment No. 1 is being filed solely to:

 

  •  

Include a Consent of Independent Registered Certified Public Accounting Firm, which consent was omitted due to administrative oversight; and

 

  •  

Amend and restate Item 15. “Exhibits and Financial Statement Schedules” to reflect the inclusion of this consent.

Except for the amendments described above, this Form 10-K/A does not modify or update other disclosures in, or exhibits to, the Original Filing.

ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K

 

(a) Financial Statements

The financial statements filed as part of this report are listed under Item 8.

 

(b) Exhibits:

 

Exhibit

   

Description

  3.1

    Registrant’s Articles of Incorporation, as amended(1)(7)

  3.2

    Registrant’s Bylaws(12)

  3.3

    Forms of Articles of Amendment to Articles of Incorporation(1)

  4.1

    Specimen Common Stock Certificate(1)

  4.2

    Shareholders’ Agreement, dated as of November 30, 1992, as amended, by and among the Registrant, William Petty, M.D., Betty Petty, David Petty, Mark Petty and Julie Petty(1)

  4.7

    Form of Amendment to Shareholder’s Agreement, dated as of May 1996, by and among the Registrant, William Petty, M.D., Betty Petty, David Petty, Mark Petty and Julie Petty(1)

  4.8

    Common Stock Purchase Rights Agreement(8)

10.4

    Form of Employment Agreement between the Registrant and William Petty, M.D.(1) *

10.6

    Form of Employment Agreement between the Registrant and Gary J. Miller, Ph.D.(1) *

10.7

    Amendment to employment agreement between Exactech, Inc. and R. William Petty, M.D. (14)*

10.38

    License Agreement, dated August 20, 1993, between the Registrant and The University of Florida, as amended(1)

10.39

    Exclusive Sublicense Agreement dated June 30, 1995, between the Registrant and Sofamor Danek Properties, Inc.(1)

10.40

    License Agreement, dated as of January 1, 1996, between the Registrant and The Hospital for Special Surgery(1)

10.60

    Loan Agreement, dated as of November 1, 1997, between the City of Gainesville, Florida and the Registrant(2)

10.61

    Letter of Credit Agreement, dated as of November 1, 1997, between SunTrust Bank, North Central Florida (“SunTrust”) and the Registrant(2)

10.62

    Pledge and Security Agreement, dated as of November 1, 1997 between SunTrust and the Registrant(2)

10.63

    Mortgage and Security Agreement, dated as of November 1, 1997, from the Registrant to SunTrust(2)

10.68

    Office/Warehouse Lease, dated June 9, 2000, between Creel and Wilcox Development, LLC and the Registrant(3)

 

3

10.70

    Loan Agreement, dated September 20, 2002, between SunTrust Bank and the Registrant(4)

10.71

    Exactech, Inc. 2003 Executive Incentive Compensation Plan(5) *

10.72

    Securities Purchase Agreement, dated October 29, 2003, by and between Exactech, Inc. and Altiva Corporation(6)

10.73

    Loan and Security Agreement, dated June 25, 2004, with Merrill Lynch Business Financial Services, Inc.(9)

10.74

    Intercreditor Agreement, dated June 25, 2004, with Merrill Lynch Business Financial Services, Inc.(9)

10.75

    Unconditional Guaranty, dated June 25, 2004, to Merrill Lynch Business Financial Services, Inc. on behalf of Altiva Corporation.(9)

10.76

    Business Loan Agreement, dated as of October 18, 2005, from the Registrant to SunTrust(11)

10.77

    Mortgage and Security Agreement, dated as of October 18, 2005, from the Registrant to SunTrust.(11)

10.78

    Agreement and Plan of Merger, dated December 7, 2007, by and among the Company, Exactech Spine, Inc., Altiva and certain stockholders of Altiva.(134)

10.79

    Form of Registration Rights Agreement, by and among the Company and the Stockholders party thereto.(13)

14.1

    Code of Business Conduct and Ethics(10)

21.1

    Subsidiaries of the Registrant

23.1

    Independent Auditors’ Consent

23.2

    Independent Auditors’ Consent (McGladrey & Pullen, LLP)

31.1

    Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2

    Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1

    Certification of Chief Executive Officer pursuant to 18 USC Section 1350.

32.2

    Certification of Chief Financial Officer pursuant to 18 USC Section 1350.

Copies of the exhibits filed with this Annual Report on Form 10-K or incorporated herein by reference do not accompany copies hereof for distribution to shareholders of the Company. The Company will furnish a copy of any of such exhibits to any shareholder requesting the same.

 

* Compensation plan or arrangement
(1) Incorporated by reference to the exhibit of the same number filed with the Registrant’s Registration Statement on Form S-1 (File No. 333-02980).
(2) Incorporated by reference to the exhibit of the same number filed with the Registrant’s Annual Report on Form 10-K for the year ended December 31, 1997.
(3) Incorporated by reference to the exhibit of the same number filed with the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2000.
(4) Incorporated by reference to exhibit 10 filed with the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002.

 

4

(5) Incorporated by reference to Appendix A filed with the Registrant’s Definitive Proxy Statement with respect to its 2003 Annual Meeting of Shareholders held on May 2, 2003.
(6) Incorporated by reference to exhibit 2 filed with the Registrants’ Report on Form 8-K, dated October 30, 2003.
(7) Incorporated by reference to exhibit 3 filed with the Registrants’ Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
(8) Incorporated by reference to Exhibit 4.1 filed with the Registrant’s Registration Statement on Form 8-A, filed with the Securities and Exchange Commission on December 19, 2003.
(9) Incorporated by reference to exhibit 10 filed with the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004.
(10) Incorporated by reference to Appendix C filed with the Registrant’s Definitive Proxy Statement with respect to its 2003 Annual Meeting of Shareholders held on May 2, 2003.
(11) Incorporated by reference to exhibit 10 filed with the Registrants’ Report on Form 8-K, dated October 21, 2005.
(12) Incorporated by reference to exhibit 3.1 filed with the Registrants’ Report on Form 8-K, dated December 5, 2007.
(13) Incorporated by reference to exhibits 10.1 and 10.2 filed with the Registrants’ Report on Form 8-K, dated December 7, 2007.
(14) Incorporated by reference to exhibit 10 filed with the Registrants’ Report on Form 8-K, dated December 19, 2007.

 

5

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

March 31, 2008

   EXACTECH, INC.
  By:  

/s/ William Petty

    William Petty
    Chief Executive Officer and Chairman of the Board (Principal Executive Officer)
  By:  

/s/ Joel C. Phillips

    Joel C. Phillips
    Chief Financial Officer (Principal Financial and Accounting Officer)

 

6

Exhibit Index

 

Exhibit No.

  

Description

23.2   Independent Auditors’ Consent (McGladrey & Pullen, LLP)

 

7