UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended November 30, 2012. |
OR
¨ | 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 000-54505
Commission File Number 001-15601
LVB ACQUISITION, INC.
BIOMET, INC.
(Exact name of registrant as specified in its charter)
Delaware Indiana |
26-0499682 35-1418342 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
56 East Bell Drive, Warsaw, Indiana | 46582 | |
(Address of principal executive offices) | (Zip Code) |
(574) 267-6639
(Registrants telephone number, including area code)
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.
LVB ACQUISITION, INC. Yes þ No ¨
BIOMET, INC. Yes þ No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
LVB ACQUISITION, INC. Yes þ No ¨
BIOMET, INC. Yes þ No ¨
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 the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b2 of the Exchange Act. (Check one):
LVB ACQUISITION, INC.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
Non-accelerated filer | þ | Smaller reporting company | ¨ |
BIOMET, INC.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
Non-accelerated filer | þ | Smaller reporting company | ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
LVB ACQUISITION, INC. Yes ¨ No þ
BIOMET, INC. Yes ¨ No þ
The number of shares of the registrants common stock outstanding as of December 31, 2012:
LVB ACQUISITION, INC. 552,361,917 shares of common stock
BIOMET, INC. 1,000 shares of common stock
2
Explanatory Note
This Form 10-Q is a combined quarterly report being filed separately by two registrants: LVB Acquisition, Inc. (LVB) and Biomet, Inc. Unless the context indicates otherwise, any reference in this report to the Company, we, us and our refer to LVB, Biomet, Inc. and their subsidiaries. Each registrant hereto is filing on its own behalf all of the information contained in this quarterly report that relates to such registrant. Each registrant hereto is not filing any information that does not relate to such registrant, and therefore makes no representation as to any such information.
3
Item 1. | Condensed Consolidated Financial Statements. |
LVB Acquisition, Inc. and Subsidiaries Condensed Consolidated Balance Sheets
(in millions, except shares)
(Unaudited) | ||||||||
November 30, 2012 | May 31, 2012 | |||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 167.5 | $ | 492.4 | ||||
Accounts receivable, less allowance for doubtful accounts receivables of $39.0 ($36.5 at May 31, 2012) |
556.0 | 491.6 | ||||||
Investments |
2.6 | 2.5 | ||||||
Income tax receivable |
5.7 | 5.0 | ||||||
Inventories |
674.1 | 543.2 | ||||||
Deferred income taxes |
55.6 | 52.5 | ||||||
Prepaid expenses and other |
144.9 | 124.1 | ||||||
|
|
|
|
|||||
Total current assets |
1,606.4 | 1,711.3 | ||||||
Property, plant and equipment, net |
693.2 | 593.6 | ||||||
Investments |
23.1 | 13.9 | ||||||
Intangible assets, net |
3,865.9 | 3,930.4 | ||||||
Goodwill |
4,173.4 | 4,114.4 | ||||||
Other assets |
103.1 | 56.8 | ||||||
|
|
|
|
|||||
Total assets |
$ | 10,465.1 | $ | 10,420.4 | ||||
|
|
|
|
|||||
Liabilities & Shareholders Equity |
||||||||
Current liabilities: |
||||||||
Current portion of long-term debt |
$ | 34.3 | $ | 35.6 | ||||
Accounts payable |
102.8 | 116.2 | ||||||
Accrued interest |
55.2 | 56.5 | ||||||
Accrued wages and commissions |
112.9 | 122.0 | ||||||
Other accrued expenses |
172.0 | 180.2 | ||||||
|
|
|
|
|||||
Total current liabilities |
477.2 | 510.5 | ||||||
Long-term liabilities: |
||||||||
Long-term debt, net of current portion |
6,005.3 | 5,792.2 | ||||||
Deferred income taxes |
1,158.3 | 1,257.8 | ||||||
Other long-term liabilities |
204.2 | 177.8 | ||||||
|
|
|
|
|||||
Total liabilities |
7,845.0 | 7,738.3 | ||||||
Commitments and contingencies |
| | ||||||
Shareholders equity: |
||||||||
Common stock, par value $0.01 per share; 740,000,000 shares authorized; 552,361,917 and 552,308,376 shares issued and outstanding |
5.5 | 5.5 | ||||||
Contributed and additional paid-in capital |
5,650.2 | 5,623.3 | ||||||
Accumulated deficit |
(3,167.3 | ) | (3,069.6 | ) | ||||
Accumulated other comprehensive income |
131.7 | 122.9 | ||||||
|
|
|
|
|||||
Total shareholders equity |
2,620.1 | 2,682.1 | ||||||
|
|
|
|
|||||
Total liabilities and shareholders equity |
$ | 10,465.1 | $ | 10,420.4 | ||||
|
|
|
|
The accompanying notes are an integral part of the condensed consolidated financial statements.
4
LVB Acquisition, Inc. and Subsidiaries Condensed Consolidated Statements of Operations and Comprehensive Loss
(in millions)
(Unaudited) | (Unaudited) | |||||||||||||||
For the Three Months Ended November 30, | For the Six Months Ended November 30, | |||||||||||||||
2012 | 2011 | 2012 | 2011 | |||||||||||||
Net sales |
$ | 790.1 | $ | 725.1 | $ | 1,497.5 | $ | 1,389.7 | ||||||||
Cost of sales |
236.0 | 234.9 | 464.1 | 450.2 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Gross profit |
554.1 | 490.2 | 1,033.4 | 939.5 | ||||||||||||
Selling, general and administrative expense |
296.8 | 270.9 | 592.9 | 532.5 | ||||||||||||
Research and development expense |
36.4 | 31.1 | 72.2 | 63.1 | ||||||||||||
Amortization |
77.7 | 84.4 | 156.1 | 167.4 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Operating income |
143.2 | 103.8 | 212.2 | 176.5 | ||||||||||||
Interest expense |
104.9 | 120.8 | 222.0 | 246.2 | ||||||||||||
Other (income) expense |
124.0 | 4.9 | 161.5 | 12.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Other expense, net |
228.9 | 125.7 | 383.5 | 258.3 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Loss before income taxes |
(85.7 | ) | (21.9 | ) | (171.3 | ) | (81.8 | ) | ||||||||
Benefit from income taxes |
(19.5 | ) | (7.9 | ) | (73.6 | ) | (28.6 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Net loss |
(66.2 | ) | (14.0 | ) | (97.7 | ) | (53.2 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive income (loss), net of tax: |
||||||||||||||||
Change in unrealized holding value on available-for-sale securities |
1.3 | (0.5 | ) | 2.1 | 4.2 | |||||||||||
Interest rate swap unrealized gain (loss) |
1.9 | 12.1 | (0.7 | ) | 18.0 | |||||||||||
Foreign currency related gains (losses) |
(15.5 | ) | (65.0 | ) | 7.7 | (52.6 | ) | |||||||||
Unrecognized actuarial gain (loss) on pension assets |
(0.3 | ) | (0.3 | ) | (0.3 | ) | (0.2 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive income (loss) |
(12.6 | ) | (53.7 | ) | 8.8 | (30.6 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Comprehensive loss |
$ | (78.8 | ) | $ | (67.7 | ) | $ | (88.9 | ) | $ | (83.8 | ) | ||||
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the condensed consolidated financial statements.
5
LVB Acquisition, Inc. and Subsidiaries Condensed Consolidated Statements of Cash Flows
(in millions)
(Unaudited) | ||||||||
Six Months Ended | ||||||||
November 30, | November 30, | |||||||
2012 | 2011(1) | |||||||
Cash flows provided by (used in) operating activities: |
||||||||
Net loss |
$ | (97.7 | ) | $ | (53.2 | ) | ||
Adjustments to reconcile net loss to net cash provided by operating activities: |
||||||||
Depreciation and amortization |
242.1 | 261.5 | ||||||
Amortization and write off of deferred financing costs |
20.0 | 5.5 | ||||||
Stock-based compensation expense |
26.5 | 8.7 | ||||||
Loss on extinguishment of debt |
155.2 | | ||||||
Provision for (recovery) of doubtful accounts receivable |
0.9 | (2.5 | ) | |||||
Loss on impairment of investments |
| 16.5 | ||||||
Property, plant and equipment impairment charge |
| 0.4 | ||||||
Deferred income taxes |
(105.5 | ) | (87.6 | ) | ||||
Other |
(3.7 | ) | 1.8 | |||||
Changes in operating assets and liabilities, net of acquired assets: |
||||||||
Accounts receivable |
(57.0 | ) | (37.9 | ) | ||||
Inventories |
(34.6 | ) | 5.2 | |||||
Prepaid expenses |
(3.6 | ) | 2.0 | |||||
Accounts payable |
(13.8 | ) | 6.2 | |||||
Income taxes |
(7.1 | ) | 17.8 | |||||
Accrued interest |
(1.3 | ) | (5.4 | ) | ||||
Accrued expenses and other |
8.2 | (5.2 | ) | |||||
|
|
|
|
|||||
Net cash provided by operating activities |
128.6 | 133.8 | ||||||
Cash flows provided by (used in) investing activities: |
||||||||
Proceeds from sales/maturities of investments |
| 33.7 | ||||||
Purchases of investments |
(6.4 | ) | (0.2 | ) | ||||
Net proceeds from sale of property and equipment |
| 13.1 | ||||||
Capital expenditures |
(106.9 | ) | (81.2 | ) | ||||
Acquisitions, net of cash acquired - Trauma Acquisition |
(280.0 | ) | | |||||
Other acquisitions, net of cash acquired |
(16.0 | ) | (14.4 | ) | ||||
|
|
|
|
|||||
Net cash used in investing activities |
(409.3 | ) | (49.0 | ) | ||||
Cash flows provided by (used in) financing activities: |
||||||||
Debt: |
||||||||
Payments under European facilities |
(0.7 | ) | (0.8 | ) | ||||
Payments under senior secured credit facilities |
(16.7 | ) | (18.0 | ) | ||||
Proceeds under asset based revolver |
80.0 | | ||||||
Payments under asset based revolver |
(10.0 | ) | | |||||
Proceeds from senior notes due 2020 |
2,666.2 | | ||||||
Tender/retirement of senior notes due 2017 |
(2,702.2 | ) | | |||||
Payment of fees related to refinancing activities |
(67.8 | ) | | |||||
Equity: |
||||||||
Repurchase of LVB Acquisition, Inc. shares |
(0.1 | ) | (1.1 | ) | ||||
|
|
|
|
|||||
Net cash used in financing activities |
(51.3 | ) | (19.9 | ) | ||||
Effect of exchange rate changes on cash |
7.1 | (8.8 | ) | |||||
|
|
|
|
|||||
Increase (decrease) in cash and cash equivalents |
(324.9 | ) | 56.1 | |||||
Cash and cash equivalents, beginning of period |
492.4 | 327.8 | ||||||
|
|
|
|
|||||
Cash and cash equivalents, end of period |
$ | 167.5 | $ | 383.9 | ||||
|
|
|
|
|||||
Supplemental disclosures of cash flow information: |
||||||||
Cash paid during the period for: |
||||||||
Interest |
$ | 218.0 | $ | 246.7 | ||||
|
|
|
|
|||||
Income taxes |
$ | 35.8 | $ | 36.8 | ||||
|
|
|
|
(1) | Certain amounts have been adjusted to conform to the current presentation. |
The accompanying notes are an integral part of the condensed consolidated financial statements.
6
Biomet, Inc. and Subsidiaries Condensed Consolidated Balance Sheets
(in millions, except shares)
(Unaudited) | ||||||||
November 30, 2012 | May 31, 2012 | |||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 167.5 | $ | 492.4 | ||||
Accounts receivable, less allowance for doubtful accounts receivables of $39.0 ($36.5 at May 31, 2012) |
556.0 | 491.6 | ||||||
Investments |
2.6 | 2.5 | ||||||
Income tax receivable |
5.7 | 5.0 | ||||||
Inventories |
674.1 | 543.2 | ||||||
Deferred income taxes |
55.6 | 52.5 | ||||||
Prepaid expenses and other |
144.9 | 124.1 | ||||||
|
|
|
|
|||||
Total current assets |
1,606.4 | 1,711.3 | ||||||
Property, plant and equipment, net |
693.2 | 593.6 | ||||||
Investments |
23.1 | 13.9 | ||||||
Intangible assets, net |
3,865.9 | 3,930.4 | ||||||
Goodwill |
4,173.4 | 4,114.4 | ||||||
Other assets |
103.1 | 56.8 | ||||||
|
|
|
|
|||||
Total assets |
$ | 10,465.1 | $ | 10,420.4 | ||||
|
|
|
|
|||||
Liabilities & Shareholders Equity |
||||||||
Current liabilities: |
||||||||
Current portion of long-term debt |
$ | 34.3 | $ | 35.6 | ||||
Accounts payable |
102.8 | 116.2 | ||||||
Accrued interest |
55.2 | 56.5 | ||||||
Accrued wages and commissions |
112.9 | 122.0 | ||||||
Other accrued expenses |
172.0 | 180.2 | ||||||
|
|
|
|
|||||
Total current liabilities |
477.2 | 510.5 | ||||||
Long-term liabilities: |
||||||||
Long-term debt, net of current portion |
6,005.3 | 5,792.2 | ||||||
Deferred income taxes |
1,158.3 | 1,257.8 | ||||||
Other long-term liabilities |
204.2 | 177.8 | ||||||
|
|
|
|
|||||
Total liabilities |
7,845.0 | 7,738.3 | ||||||
Commitments and contingencies |
| | ||||||
Shareholders equity: |
||||||||
Common stock, without par value; 1,000 shares authorized; 1,000 shares issued and outstanding |
| | ||||||
Contributed and additional paid-in capital |
5,655.7 | 5,628.8 | ||||||
Accumulated deficit |
(3,167.3 | ) | (3,069.6 | ) | ||||
Accumulated other comprehensive income |
131.7 | 122.9 | ||||||
|
|
|
|
|||||
Total shareholders equity |
2,620.1 | 2,682.1 | ||||||
|
|
|
|
|||||
Total liabilities and shareholders equity |
$ | 10,465.1 | $ | 10,420.4 | ||||
|
|
|
|
The accompanying notes are an integral part of the condensed consolidated financial statements.
7
Biomet, Inc. and Subsidiaries Condensed Consolidated Statements of Operations and Comprehensive Loss
(in millions)
(Unaudited) | (Unaudited) | |||||||||||||||
For the Three Months Ended November 30, | For the Six Months Ended November 30, | |||||||||||||||
2012 | 2011 | 2012 | 2011 | |||||||||||||
Net sales |
$ | 790.1 | $ | 725.1 | $ | 1,497.5 | $ | 1,389.7 | ||||||||
Cost of sales |
236.0 | 234.9 | 464.1 | 450.2 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Gross profit |
554.1 | 490.2 | 1,033.4 | 939.5 | ||||||||||||
Selling, general and administrative expense |
296.8 | 270.9 | 592.9 | 532.5 | ||||||||||||
Research and development expense |
36.4 | 31.1 | 72.2 | 63.1 | ||||||||||||
Amortization |
77.7 | 84.4 | 156.1 | 167.4 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Operating income |
143.2 | 103.8 | 212.2 | 176.5 | ||||||||||||
Interest expense |
104.9 | 120.8 | 222.0 | 246.2 | ||||||||||||
Other (income) expense |
124.0 | 4.9 | 161.5 | 12.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Other expense, net |
228.9 | 125.7 | 383.5 | 258.3 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Loss before income taxes |
(85.7 | ) | (21.9 | ) | (171.3 | ) | (81.8 | ) | ||||||||
Benefit from income taxes |
(19.5 | ) | (7.9 | ) | (73.6 | ) | (28.6 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Net loss |
(66.2 | ) | (14.0 | ) | (97.7 | ) | (53.2 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive income (loss), net of tax: |
||||||||||||||||
Change in unrealized holding value on available-for-sale securities |
1.3 | (0.5 | ) | 2.1 | 4.2 | |||||||||||
Interest rate swap unrealized gain (loss) |
1.9 | 12.1 | (0.7 | ) | 18.0 | |||||||||||
Foreign currency related gains (losses) |
(15.5 | ) | (65.0 | ) | 7.7 | (52.6 | ) | |||||||||
Unrecognized actuarial gain (loss) on pension assets |
(0.3 | ) | (0.3 | ) | (0.3 | ) | (0.2 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive income (loss) |
(12.6 | ) | (53.7 | ) | 8.8 | (30.6 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Comprehensive loss |
$ | (78.8 | ) | $ | (67.7 | ) | $ | (88.9 | ) | $ | (83.8 | ) | ||||
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the condensed consolidated financial statements.
8
Biomet, Inc. and Subsidiaries Condensed Consolidated Statements of Cash Flows
(in millions)
(Unaudited) | ||||||||
Six Months Ended | ||||||||
November 30, 2012 |
November 30, 2011(1) |
|||||||
Cash flows provided by (used in) operating activities: |
||||||||
Net loss |
$ | (97.7 | ) | $ | (53.2 | ) | ||
Adjustments to reconcile net loss to net cash provided by operating activities: |
||||||||
Depreciation and amortization |
242.1 | 261.5 | ||||||
Amortization and write off of deferred financing costs |
20.0 | 5.5 | ||||||
Stock-based compensation expense |
26.5 | 8.7 | ||||||
Loss on extinguishment of debt |
155.2 | | ||||||
Provision for (recovery) of doubtful accounts receivable |
0.9 | (2.5 | ) | |||||
Loss on impairment of investments |
| 16.5 | ||||||
Property, plant and equipment impairment charge |
| 0.4 | ||||||
Deferred income taxes |
(105.5 | ) | (87.6 | ) | ||||
Other |
(3.7 | ) | 1.8 | |||||
Changes in operating assets and liabilities, net of acquired assets: |
||||||||
Accounts receivable |
(57.0 | ) | (37.9 | ) | ||||
Inventories |
(34.6 | ) | 5.2 | |||||
Prepaid expenses |
(3.6 | ) | 2.0 | |||||
Accounts payable |
(13.8 | ) | 6.2 | |||||
Income taxes |
(7.1 | ) | 17.8 | |||||
Accrued interest |
(1.3 | ) | (5.4 | ) | ||||
Accrued expenses and other |
8.2 | (5.2 | ) | |||||
|
|
|
|
|||||
Net cash provided by operating activities |
128.6 | 133.8 | ||||||
Cash flows provided by (used in) investing activities: |
||||||||
Proceeds from sales/maturities of investments |
| 33.7 | ||||||
Purchases of investments |
(6.4 | ) | (0.2 | ) | ||||
Net proceeds from sale of property and equipment |
| 13.1 | ||||||
Capital expenditures |
(106.9 | ) | (81.2 | ) | ||||
Acquisitions, net of cash acquired - Trauma Acquisition |
(280.0 | ) | | |||||
Other acquisitions, net of cash acquired |
(16.0 | ) | (14.4 | ) | ||||
|
|
|
|
|||||
Net cash used in investing activities |
(409.3 | ) | (49.0 | ) | ||||
Cash flows provided by (used in) financing activities: |
||||||||
Debt: |
||||||||
Payments under European facilities |
(0.7 | ) | (0.8 | ) | ||||
Payments under senior secured credit facilities |
(16.7 | ) | (18.0 | ) | ||||
Proceeds under asset based revolver |
80.0 | | ||||||
Payments under asset based revolver |
(10.0 | ) | | |||||
Proceeds from senior notes due 2020 |
2,666.2 | | ||||||
Tender/retirement of senior notes due 2017 |
(2,702.2 | ) | | |||||
Payment of fees related to refinancing activities |
(67.8 | ) | | |||||
Equity: |
||||||||
Repurchase of LVB Acquisition, Inc. shares |
(0.1 | ) | (1.1 | ) | ||||
|
|
|
|
|||||
Net cash used in financing activities |
(51.3 | ) | (19.9 | ) | ||||
Effect of exchange rate changes on cash |
7.1 | (8.8 | ) | |||||
|
|
|
|
|||||
Increase (decrease) in cash and cash equivalents |
(324.9 | ) | 56.1 | |||||
Cash and cash equivalents, beginning of period |
492.4 | 327.8 | ||||||
|
|
|
|
|||||
Cash and cash equivalents, end of period |
$ | 167.5 | $ | 383.9 | ||||
|
|
|
|
|||||
Supplemental disclosures of cash flow information: |
||||||||
Cash paid during the period for: |
||||||||
Interest |
$ | 218.0 | $ | 246.7 | ||||
|
|
|
|
|||||
Income taxes |
$ | 35.8 | $ | 36.8 | ||||
|
|
|
|
(1) | Certain amounts have been adjusted to conform to the current presentation. |
The accompanying notes are an integral part of the condensed consolidated financial statements.
9
LVB ACQUISITION, INC.
BIOMET, INC.
Notes to Condensed Consolidated Financial Statements (Unaudited)
Note 1Basis of Presentation.
The accompanying unaudited condensed consolidated financial statements include the accounts of LVB Acquisition, Inc. (LVB and Parent) and Biomet, Inc. and its subsidiaries (individually and collectively with its subsidiaries referred to as Biomet, and together with LVB, the Company, we, us, or our). Biomet is a wholly owned subsidiary of LVB. LVB has no other operations beyond its ownership of Biomet. Intercompany accounts and transactions have been eliminated in consolidation.
The unaudited condensed consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting
principles (GAAP) for condensed financial information, the instructions to Form 10-Q and Article 10 of Regulation
S-X. As a result, they do not include all of the information and footnotes required by U.S. GAAP for complete financial
statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation of the financial condition, results of operations and cash flows for the periods presented have been
included. Operating results for the three and six months ended November 30, 2012 are not necessarily indicative of the results that may be expected for the fiscal year ending May 31, 2013. For further information, including the
Companys significant accounting policies, refer to the audited consolidated financial statements and notes thereto included in the Companys Annual Report on Form 10-K for the fiscal year ended May 31, 2012 (the 2012 Form
10-K).
The May 31, 2012 balances have been derived from the audited financial statements included in the 2012 Form 10-K.
Recent Accounting Pronouncements
Goodwill Impairment TestingIn September 2011, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2011-08, Intangibles-Goodwill and Other (Topic 350): Testing Goodwill for Impairment (ASU 2011-08). The new guidance is intended to simplify how entities test goodwill for impairment. It includes provisions that permit an entity to first assess qualitative factors in determining whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform the two-step goodwill impairment test. The more-likely-than-not threshold is defined as having a likelihood of more than 50%. The new guidance is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011. The changes to Topic 350 were effective for the Company beginning June 1, 2012 and will be applied prospectively. The Company implemented the accounting pronouncement and it did not have a material impact on the Companys consolidated financial statements.
Note 2Acquisition.
Trauma Acquisition
On May 24, 2012, DePuy Orthopaedics, Inc. accepted the Companys binding offer to purchase certain assets representing substantially all of DePuys worldwide trauma business (the Trauma Acquisition), which involves researching, developing, manufacturing, marketing, distributing and selling products to treat certain bone fractures or deformities in the human body, including certain intellectual property assets, and to assume certain liabilities, for approximately $280.0 million in cash. The Company acquired the DePuy worldwide trauma business to strengthen its trauma business and to continue to build a stronger presence in the global trauma market. Trauma Acquisition net sales for the three and six months ended November 30, 2012 were $52.7 million and $91.5 million, respectively.
On June 15, 2012, the Company announced the initial closing of the transaction. During the first and second quarters of fiscal year 2013, subsequent closings in various foreign countries occurred on a staggered basis, with the final closing occurring on December 7, 2012.
The acquisition has been accounted for as a business combination. The preliminary purchase price was allocated to the acquired assets and liabilities based on the estimated fair value of the acquired assets at the date of acquisition. As of November 30, 2012, certain countries had just recently closed and all information was not available; therefore, the Company recorded a preliminary allocation of the purchase price to acquired tangible and identifiable intangible assets and liabilities assumed based on their fair value at the initial acquisition date. The Company is in the process of obtaining valuations of certain tangible and intangible assets and determining certain employee liabilities. Any changes to the purchase price allocation since the first quarter of fiscal year 2013 were due to subsequent country closings. The Company expects to complete the purchase price allocation in fiscal year 2013 after all countries have closed and valuations are finalized.
10
Note 2Acquisition, Continued.
The preliminary purchase price allocation at November 30, 2012 consisted of the following:
(in millions) | November 30, 2012 | |||
Inventory |
$ | 107.1 | ||
Prepaid expenses and other |
6.8 | |||
Instruments |
31.3 | |||
Other property, plant and equipment |
23.3 | |||
Intangible assets |
70.0 | |||
Goodwill |
41.5 | |||
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|
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Preliminary purchase price |
$ | 280.0 | ||
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The asset purchase agreement contains a provision requiring an adjustment to the purchase price if the amount of delivered inventory and/or instruments is more or less than the target amount of these items. The Company does not expect an adjustment to the purchase price as a result of this provision. The results of operations of the business have been included subsequent to the respective country closing dates in the accompanying condensed consolidated financial statements. Acquisition-related costs for the three and six months ended November 30, 2012 were $2.3 million and $9.2 million, respectively, and are recorded in cost of sales and selling, general and administrative expenses. The Company does not expect the goodwill value to be tax deductible.
The pro forma information required under Accounting Standards Codification 805 is impracticable to include due to different fiscal year ends and individual country closings.
Note 3Inventories.
Inventories are stated at the lower of cost or market, with cost determined under the first-in, first-out method. The Company reviews inventory on hand and writes down excess and slow-moving inventory based on an assessment of future demand and historical experience. Inventories consisted of the following:
(in millions) | November 30, 2012 | May 31, 2012 | ||||||
Raw materials |
$ | 77.4 | $ | 78.3 | ||||
Work-in-process |
49.4 | 42.4 | ||||||
Finished goods |
547.3 | 422.5 | ||||||
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Inventories, net |
$ | 674.1 | $ | 543.2 | ||||
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Note 4Property, Plant and Equipment.
Property, plant and equipment are carried at cost less accumulated depreciation. Depreciation is computed using the straight-line method over the estimated useful life. Depreciation of instruments is included within cost of sales. Related maintenance and repairs are expensed as incurred.
The Company reviews property, plant and equipment for impairment whenever events or changes in circumstances indicate that the carrying value of an asset may not be recoverable. An impairment loss would be recognized when estimated undiscounted future cash flows relating to the asset, or asset group, are less than its carrying value, with the amount of the loss equal to the excess of carrying value of the asset, or asset group, over the estimated fair value.
Useful lives by major product category consisted of the following:
Useful life | ||
Land improvements |
20 years | |
Buildings and leasehold improvements |
30 years | |
Machinery and equipment |
5-10 years | |
Instruments |
4 years |
11
Note 4Property, Plant and Equipment, Continued.
Property, plant and equipment consisted of the following:
(in millions) | November 30, 2012 | May 31, 2012 | ||||||
Land and land improvements |
$ | 40.9 | $ | 40.2 | ||||
Buildings and leasehold improvements |
96.3 | 89.9 | ||||||
Machinery and equipment |
385.1 | 342.3 | ||||||
Instruments |
765.9 | 633.3 | ||||||
Construction in progress |
38.1 | 29.1 | ||||||
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|
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Total property, plant and equipment |
1,326.3 | 1,134.8 | ||||||
Accumulated depreciation |
(633.1 | ) | (541.2 | ) | ||||
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|
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Total property, plant and equipment, net |
$ | 693.2 | $ | 593.6 | ||||
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Note 5Investments.
At November 30, 2012, the Companys investment securities were classified as follows:
Amortized | Unrealized | Fair | ||||||||||||||
(in millions) | Cost | Gains | Losses | Value | ||||||||||||
Available-for-sale: |
||||||||||||||||
Equity securities |
$ | 0.2 | $ | 0.1 | $ | | $ | 0.3 | ||||||||
Time deposit |
15.9 | 0.1 | | 16.0 | ||||||||||||
Greek bonds |
6.6 | 2.0 | | 8.6 | ||||||||||||
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Total available-for-sale investments |
$ | 22.7 | $ | 2.2 | $ | | $ | 24.9 | ||||||||
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Amortized | Realized | Fair | ||||||||||||||
Cost | Gains | Losses | Value | |||||||||||||
Trading: |
||||||||||||||||
Equity securities |
$ | 0.7 | $ | 0.1 | $ | | $ | 0.8 | ||||||||
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|||||||||
Total trading investments |
$ | 0.7 | $ | 0.1 | $ | | $ | 0.8 | ||||||||
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At May 31, 2012, the Companys investment securities were classified as follows:
Amortized | Unrealized | Fair | ||||||||||||||
(in millions) | Cost | Gains | Losses | Value | ||||||||||||
Available-for-sale: |
||||||||||||||||
Equity securities |
$ | 0.4 | $ | | $ | (0.2 | ) | $ | 0.2 | |||||||
Time deposit |
9.5 | | | 9.5 | ||||||||||||
Greek bonds |
6.3 | | | 6.3 | ||||||||||||
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Total available-for-sale investments |
$ | 16.2 | $ | | $ | (0.2 | ) | $ | 16.0 | |||||||
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Amortized | Realized | Fair | ||||||||||||||
Cost | Gains | Losses | Value | |||||||||||||
Trading: |
||||||||||||||||
Equity securities |
$ | 0.4 | $ | | $ | | $ | 0.4 | ||||||||
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Total trading investments |
$ | 0.4 | $ | | $ | | $ | 0.4 | ||||||||
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The Company recorded proceeds on the sales/maturities of investments of $33.7 million for the six months ended November 30, 2011, and no proceeds during the three and six months ended November 30, 2012 and the three months ended November 30, 2011. The Company purchased investments of $6.4 million during the three and six months ended November 30, 2012 and $0.2 million for the six months ended November 20, 2011 with no purchases during the three months ended November 30, 2011.
The Company holds Greek bonds which are designated as available-for-sale securities. The bonds have maturities ranging from 1 to 30 years. At November 30, 2012, the face value of the bonds was $16.3 million. The Company recorded realized losses of $7.3 million and $16.5 million on the Greek bonds related to other-than-temporary impairment for the three and six months ended November 30, 2011, respectively, which is included in other (income) expense. There was no other-than-temporary impairment for the three and six months ended November 30, 2012 as fair value was higher than cost.
12
Note 6Goodwill and Other Intangible Assets.
The balance of goodwill as of November 30, 2012 and May 31, 2012 was $4,173.4 million and $4,114.4 million, respectively. The change in goodwill is primarily related to the goodwill recorded related to the Trauma Acquisition, which is described in Note 2 Acquisition, and foreign currency fluctuations.
The Company uses an accelerated method for amortizing customer relationship intangibles, as the value for those relationships is greater at the beginning of their life. The accelerated method was calculated using historical customer attrition rates. The remaining finite-lived intangibles are amortized on a straight line basis. The decrease in the net intangible asset balance is primarily due to amortization and partially offset by the intangibles recorded related to the Trauma Acquisition, which is described in Note 2 Acquisition.
The Company performs its annual assessment for impairment as of March 31 for all reporting units, or on an interim basis if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount. The estimates and assumptions underlying the fair value calculations used in the Companys annual impairment tests are uncertain by their nature and can vary significantly from actual results. Factors that management must estimate include, but are not limited to, industry and market conditions, sales volume and pricing, raw material costs, capital expenditures, working capital changes, cost of capital, and tax rates. These factors are especially difficult to predict when global financial markets are volatile. The estimates and assumptions used in its impairment tests are consistent with those the Company uses in its internal planning. These estimates and assumptions may change from period to period. If the Company uses different estimates and assumptions in the future, impairment charges may occur and could be material.
In performing the test on goodwill, the Company utilizes the two-step approach prescribed under guidance issued by the FASB. The first step under this guidance requires a comparison of the carrying value of the reporting units, of which the Company has identified six in total, to the fair value of these reporting units. The Company uses the income approach to determine the fair value of each reporting unit. The approach calculates fair value by estimating the after-tax cash flows attributable to a reporting unit and then discounting these after-tax cash flows to a present value using a risk-adjusted discount rate. To derive the carrying value of the Companys reporting units, the Company assigns goodwill to the reporting units. In addition, for purposes of performing the goodwill test, certain corporate assets and liabilities are allocated to the individual reporting units. Assets and liabilities include an allocation of those corporate assets that relate to a reporting units operations, and would be considered in determining fair value. The Company allocates assets and liabilities that are not directly related to a specific reporting unit, but from which the reporting unit benefits, based primarily on the respective revenue contribution of each reporting unit. If the carrying value of a reporting unit exceeds its fair value, the Company performs the second step of the goodwill impairment test to measure the amount of impairment loss, if any.
The second step of the goodwill impairment test compares the implied fair value of a reporting units goodwill to its carrying value. If the Company is unable to complete the second step of the test prior to the issuance of its financial statements and an impairment loss is probable and could be reasonably estimated, the Company recognizes its best estimate of the loss in its current period financial statements and discloses that amount as an estimate. The Company then recognizes any adjustment to that estimate in subsequent reporting periods, once the Company has finalized the second step of the impairment test.
The Company determines the fair value of indefinite lived intangible assets, primarily tradenames, using the relief-from-royalty method, an income based approach. The approach calculates fair value by estimating the after-tax cash flows attributable to the asset and then discounting these after-tax cash flows to a present value using a risk-adjusted discount rate. The calculated fair value is compared to the carrying value to determine if any impairment exists.
If events or circumstances change, a determination is made by management to ascertain whether certain finite-lived intangibles have been impaired based on the sum of expected future undiscounted cash flows from operating activities. If the estimated net cash flows are less than the carrying amount of such assets, an impairment loss is recognized in an amount necessary to write down the assets to fair value as determined from expected future discounted cash flows.
As of November 30, 2012, the Company concluded that certain indicators were present that suggested impairment may exist for its Dental Reconstructive reporting units goodwill and intangibles. The Dental Reconstructive reporting unit had goodwill of $299.2 million and intangibles of $231.4 million at November 30, 2012. The indicators of impairment in the Companys Dental Reconstructive reporting unit include evidence of continued declining industry market growth rates in certain European and Asia Pacific markets and corresponding unfavorable margin trends. Management is in the process of completing its evaluation of impairment, including consideration of long-term growth rates, industry information and other valuation assumptions. The Company intends to finalize these impairment tests and record any resulting impairment charges during its third quarter of fiscal year 2013.
13
Note 6Goodwill and Other Intangible Assets, Continued.
Intangible assets consisted of the following at November 30, 2012 and May 31, 2012:
(in millions) | November 30, 2012 | |||||||||||
Gross | Net | |||||||||||
Carrying | Accumulated | Carrying | ||||||||||
Amount | Amortization | Amount | ||||||||||
Core technology |
$ | 1,700.2 | $ | (429.3 | ) | $ | 1,270.9 | |||||
Completed technology |
604.2 | (229.3 | ) | 374.9 | ||||||||
Product trade names |
192.5 | (58.5 | ) | 134.0 | ||||||||
Customer relationships |
2,387.3 | (748.4 | ) | 1,638.9 | ||||||||
Non-compete contracts |
4.6 | (3.5 | ) | 1.1 | ||||||||
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|
|||||||
Sub-total |
4,888.8 | (1,469.0 | ) | 3,419.8 | ||||||||
Corporate trade names |
312.2 | | 312.2 | |||||||||
Currency translation |
166.1 | (32.2 | ) | 133.9 | ||||||||
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|
|
|
|
|
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Total |
$ | 5,367.1 | $ | (1,501.2 | ) | $ | 3,865.9 | |||||
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|
(in millions) | May 31, 2012 | |||||||||||||||||||||||
Gross | New | Net | ||||||||||||||||||||||
Carrying | Impairment | Carrying | Accumulated | Impairment | Carrying | |||||||||||||||||||
Amount | Charge | Amount | Amortization | Charge | Amount | |||||||||||||||||||
Core technology |
$ | 1,856.1 | $ | (185.7 | ) | $ | 1,670.4 | $ | (457.7 | ) | $ | 74.3 | $ | 1,287.0 | ||||||||||
Completed technology |
594.2 | | 594.2 | (206.7 | ) | | 387.5 | |||||||||||||||||
Product trade names |
184.5 | | 184.5 | (52.6 | ) | | 131.9 | |||||||||||||||||
Customer relationships |
2,666.1 | (306.8 | ) | 2,359.3 | (859.3 | ) | 191.6 | 1,691.6 | ||||||||||||||||
Non-compete contracts |
4.6 | | 4.6 | (3.1 | ) | | 1.5 | |||||||||||||||||
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Sub-total |
5,305.5 | (492.5 | ) | 4,813.0 | (1,579.4 | ) | 265.9 | 3,499.5 | ||||||||||||||||
Corporate trade names |
323.5 | (11.3 | ) | 312.2 | | | 312.2 | |||||||||||||||||
Currency translation |
147.2 | | 147.2 | (28.5 | ) | | 118.7 | |||||||||||||||||
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Total |
$ | 5,776.2 | $ | (503.8 | ) | $ | 5,272.4 | $ | (1,607.9 | ) | $ | 265.9 | $ | 3,930.4 | ||||||||||
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The weighted average useful life of the intangibles at November 30, 2012 is as follows:
Weighted Average Useful Life | ||
Core technology |
16 Years | |
Completed technology |
10 Years | |
Product trade names |
14 Years | |
Customer relationships |
15 Years | |
Non-compete contracts |
2 Years | |
Corporate trade names |
Indefinite life |
Expected amortization expense for the intangible assets stated above, for the years ending May 31, 2013 through 2017 is $307.1 million, $296.1 million, $278.4 million, $269.8 million, and $264.7 million, respectively.
14
Note 7Debt.
The terms and carrying value of each debt instrument at November 30, 2012 and May 31, 2012 are set forth below:
(U.S. dollars and euros in millions) | Maturity Date | Interest Rate |
Currency | November 30, 2012 |
May 31, 2012 |
|||||||||
Debt Instruments |
||||||||||||||
European facilities |
No Maturity Date | Interest Free | EUR | | 2.2 | | 2.8 | |||||||
$ | 2.9 | $ | 3.5 | |||||||||||
Term loan facility |
March 25, 2015 | LIBOR + 3.00% | USD | $ | 825.9 | $ | 2,234.7 | |||||||
Term loan facility |
July 25, 2017 | LIBOR + 3.75% | USD | $ | 1,397.4 | $ | | |||||||
Term loan facility |
March 25, 2015 | LIBOR + 3.00% | EUR | | 168.7 | | 835.6 | |||||||
$ | 218.7 | $ | 1,039.6 | |||||||||||
Term loan facility |
July 25, 2017 | LIBOR + 4.00% | EUR | | 662.7 | | | |||||||
$ | 859.3 | $ | | |||||||||||
Cash flow revolving credit facility |
April 25, 2017 | LIBOR + 3.50% | USD | $ | | $ | | |||||||
Cash flow revolving credit facility |
April 25, 2017 | LIBOR + 3.50% | USD/EUR | $/ | | $/ | | |||||||
Asset-based revolving credit facility |
July 25, 2017 | LIBOR + 1.75% | USD | $ | 70.0 | $ | | |||||||
Asset-based revolving credit facility |
July 25, 2017 | LIBOR + 1.75% | EUR | | | | | |||||||
Senior cash pay notes |
October 15, 2017 | 10% | USD | $ | | $ | 761.0 | |||||||
Senior PIK toggle notes |
October 15, 2017 | 10 3/8% / 11 1/8% | USD | $ | | $ | 771.0 | |||||||
Senior subordinated notes |
October 15, 2017 | 11 5/8% | USD | $ | | $ | 1,015.0 | |||||||
Senior notes |
August 1, 2020 | 6 1/2% | USD | $ | 1,825.0 | $ | | |||||||
Senior subordinated notes |
October 1, 2020 | 6 1/2% | USD | $ | 800.0 | $ | | |||||||
Premium on notes |
$ | 40.4 | $ | 3.0 | ||||||||||
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Total debt |
$ | 6,039.6 | $ | 5,827.8 | ||||||||||
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The Company has the option to choose the frequency with which it resets and pays interest on its term loans. The Company currently pays interest on the majority of its term loans and interest rate swaps each month. The remaining term loan and swap interest is paid quarterly. Interest on the 6.500% senior notes due 2020 is paid semiannually in February and August. Interest on the 6.500% senior subordinated notes due 2020 is paid semiannually in April and October.
The Company currently elects to use 1-month LIBOR for setting the interest rates on 68% of its U.S. dollar-denominated and 95% of its euro-denominated term loans. The 1-month LIBOR rate for the majority of the U.S. dollar-denominated term loan as of November 30, 2012 was 0.21%. The majority of the euro-denominated term loan had a 1-month LIBOR rate of 0.06% as of November 30, 2012. The 3-month LIBOR rate for the U.S. dollar-denominated term loan was 0.37% as of November 30, 2012 and the 3-month LIBOR rate for the euro-denominated term loan was 0.15% as of November 30, 2012. The Companys term loan facilities require payments each year in an amount equal to (x) 0.25% of the product of (i) the aggregate principal amount of all euro-denominated term loans and dollar-denominated term loans outstanding under the original credit agreement on the closing date multiplied by (ii) a fraction, the numerator of which is the aggregate principal amount of euro-denominated term B loans and dollar-denominated term B loans outstanding on August 2, 2012 (after giving effect to certain conversions to occur on or after August 2, 2012 pursuant to the amended and restated credit agreement) and the denominator of which is the aggregate principal amount of all outstanding term loans on August 2, 2012 and (y) 0.25% of the aggregate principal amount of all outstanding euro-denominated term B-1 loans and dollar-denominated term B-1, in each case in equal calendar quarterly installments until maturity of the loan and after giving effect to the application of any prepayments. Through November 30, 2012, the total amount of required payments under the Companys term loan facilities was $16.7 million. The cash flow and asset-based revolving credit facilities and the notes do not have terms for mandatory principal paydowns. To calculate the U.S. dollar equivalent on outstanding balances, the Company used a currency conversion rate of 1 euro to $1.2967 and $1.2441, which represents the currency exchange rate from euros to U.S. dollars on November 30, 2012 and May 31, 2012, respectively.
The Companys revolving borrowing base available under all debt facilities at November 30, 2012 was $727.9 million, which is net of the borrowing base limitations relating to the asset-based revolving credit facility and its outstanding balance of $70.0 million.
As of November 30, 2012, $16.7 million of financing fees related to the Companys credit agreement remained in long-term assets and continue to be amortized through interest expense over the remaining life of the credit agreement. Additionally, $63.6 million of new financing fees related to the refinancing referenced below are also in long-term assets and will be amortized through interest expense over the remaining lives of the new debt instruments.
15
Note 7Debt, Continued.
Each of Biomet, Inc.s existing wholly owned domestic subsidiaries fully, unconditionally, jointly, and severally guarantee the 6.500% senior notes due 2020 on a senior unsecured basis and the 6.500% senior subordinated notes due 2020 on a senior subordinated unsecured basis, in each case to the extent such subsidiaries guarantee Biomet, Inc.s senior secured credit facilities. LVB Acquisition, Inc. is neither an issuer nor guarantor of the notes described within this footnote.
Notes Offerings and Concurrent Tender Offers
On August 8, 2012, Biomet, Inc. completed its offering of $1,000.0 million aggregate principal amount of new 6.500% senior notes due 2020. The Company used the net proceeds of that offering to fund a tender offer for any and all of its outstanding 103/8%/111/8% senior PIK toggle notes due 2017 (Senior Toggle Notes) including related fees and expenses, to redeem the remaining Senior Toggle Notes not tendered in the tender offer and to redeem $140.0 million aggregate principal amount of the 115/8% senior subordinated notes due 2017 (115/8% Senior Subordinated Notes). As of August 31, 2012, approximately 70% of the Senior Toggle Notes were tendered. The remaining Senior Toggle Notes and $140.0 million aggregate principal amount of the 115/8% Senior Subordinated Notes were redeemed in September 2012.
On October 2, 2012, Biomet, Inc. completed its offering of $825.0 million aggregate principal amount of 6.500% senior notes due 2020 as part of a further issuance of the $1,000.0 million 6.500% senior notes offering on August 8, 2012. The Company used the net proceeds of this offering to fund a tender offer for any and all of its 10% senior notes due 2017 (10% Senior Notes), including related fees and expenses and to redeem 10% Senior Notes not accepted for purchase in such tender offer. Concurrently with this offering, the Company also completed its offering of $800.0 million aggregate principal amount of 6.500% senior subordinated notes due 2020. The Company used the net proceeds of the subordinated notes offering together with cash on hand, to fund a tender offer for up to $800.0 million aggregate principal amount of its 115/8% Senior Subordinated Notes, including related fees and expenses and to redeem 115/8% Senior Subordinated Notes not accepted for purchase in such tender offer, $343.4 million in aggregate principal amount, or approximately 45.12% of the 10% Senior Notes outstanding, were validly tendered and not withdrawn, and $384.2 million aggregate principal amount, or approximately 43.91% of the 115/8% Senior Subordinated Notes outstanding, were validly tendered and not withdrawn, in each case as of the early tender deadline of October 1, 2012. On November 1, 2012, Biomet retired all outstanding 10% Senior Notes and 115/8% Senior Subordinated Notes not accepted for purchase in the tender offer using cash on hand and asset-based revolver proceeds.
The Company recorded a loss on the retirement of bonds of $117.2 million and $155.2 million during the three and six months ended November 30, 2012, respectively, in other (income) expense, related to the tender/retirement of the Senior Toggle Notes, 10% Senior Notes and 115/8% Senior Subordinated Notes and wrote off $9.6 million and $13.7 million, respectively, in other (income) expense, of deferred financing fees related to the tender/retirement of the Senior Toggle Notes, 10% Senior Notes and 115/8% Senior Subordinated Notes described above and the replacement of the existing cash flow and asset-based revolvers described below.
Amendment and Restatement Agreement-Senior Secured Credit Facilities
On August 2, 2012, the Company entered into an amendment and restatement agreement that amended its existing senior secured credit facilities. The amendment (i) extends the maturing of approximately $1,007.2 million of its U.S. dollar-denominated term loans and approximately 631.3 million of its euro-denominated term loans under the credit facility to July 25, 2017 and (ii) refinances and replaces the existing alternative currency revolving credit commitments under the credit facility with a new class of alternative currency revolving credit commitments in an aggregate amount of $165.0 million and refinances and replaces the existing U.S. dollar revolving credit commitments under the credit facility with a new class of U.S. dollar-denominated revolving credit commitments in an aggregate amount of $165.0 million. The new revolving credit commitments will mature on April 25, 2017, except that if as of December 23, 2014, there is an outstanding aggregate principal amount of non-extended U.S. dollar and euro term loans in excess of $200.0 million, then such revolving credit commitments will mature on December 24, 2014. The remaining term loans of the lenders under the senior secured credit facilities who did not elect to extend such loans will continue to mature on March 25, 2015.
Joinder Agreement
On October 4, 2012, LVB, Biomet and certain of its subsidiaries entered into a joinder agreement (the Joinder) with Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, each lender from time to time party thereto and each of the other parties identified as an Extending Term Lender. The Joinder was entered into pursuant to that certain Credit Agreement, dated as of September 25, 2007, as amended and restated by that certain Amendment and Restatement Agreement dated as of August 2, 2012 (the Amendment), by and among Biomet, LVB, certain subsidiaries of Biomet, Bank of America, N.A. and each lender from time to time party thereto. The Amendment, among other things, provides Biomet with the ability to request an extension of the scheduled maturity dates of its existing term loans in one or more series of tranches.
16
Note 7Debt, Continued.
By entering into the Joinder, the joining lenders party thereto have agreed to extend the maturity of (i) approximately $392.7 million of Biomets U.S. dollar-denominated term loans and (ii) approximately 32.9 million of Biomets euro-denominated term loans, to July 25, 2017. The term loans extended pursuant to the Joinder are on terms identical to the terms loans that were extended pursuant to the Amendment. The remaining term loans of the lenders who have not elected to extend their loans will continue to mature on March 25, 2015.
Refinancing of Asset-Based Revolving Credit Facility
On November 14, 2012, the Company replaced and refinanced its asset-based revolving credit facility with a new asset-based revolving credit facility that has a U.S. tranche of up to $400.0 million and a European borrower tranche denominated in euros of up to the euro-equivalent of $100.0 million. The European borrower tranche is secured by certain foreign assets of European subsidiary borrowers and the U.S. borrowers under the U.S. tranche guarantee the obligations of any such European subsidiary borrowers (and such guarantees are secured by the current assets collateral that secures the direct obligations of such U.S. borrowers under such U.S. tranche).
Subsequent Events
On December 27, 2012, the Company completed a $730.0 million add-on to the extended U.S. dollar-denominated term loan. The proceeds from the add-on were used to refinance the non-extended U.S. dollar-denominated term B loan, which was net of fees associated with the add-on closing. The terms of the add-on are consistent with the terms in the Amendment and Restatement Agreement-Senior Secured Credit Facilities explanation above.
Note 8Fair Value Measurements.
Assets and Liabilities Measured at Fair Value on a Recurring Basis
Fair value measurements are principally applied to (1) financial assets and liabilities such as marketable equity securities and debt securities, (2) investments in equity and other securities, and (3) derivative instruments consisting of interest rate swaps. These items are marked-to-market at each reporting period to fair value. The information in the following paragraphs and tables primarily addresses matters relative to these financial assets and liabilities.
| Level 1 Inputs are quoted prices in active markets for identical assets or liabilities. The Companys Level 1 assets include money market investments and marketable equity securities. |
| Level 2 Inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, and inputs (other than quoted prices) that are observable for the asset or liability, either directly or indirectly. The Companys Level 2 assets and liabilities primarily include Greek bonds, time deposits, interest rate swaps, pension plan assets (equity securities, debt securities and other) and foreign currency exchange contracts whose value is determined using a pricing model with inputs that are observable in the market or can be derived principally from or corroborated by observable market data. |
| Level 3 Inputs are unobservable for the asset or liability. The Companys Level 3 assets include other equity investments. See the section below titled Level 3 Valuation Techniques for further discussion of how the Company determines fair value for investments classified as Level 3. |
17
Note 8Fair Value Measurements, Continued.
The following table provides information by level for assets and liabilities that are measured at fair value on a recurring basis at November 30, 2012 and May 31, 2012:
Fair Value Measurements | ||||||||||||||||
Fair Value
at November 30, 2012 |
Using Inputs Considered as | |||||||||||||||
(in millions) | Level 1 | Level 2 | Level 3 | |||||||||||||
Assets: |
||||||||||||||||
Money market funds |
$ | 82.1 | $ | 82.1 | $ | | $ | | ||||||||
Time deposits |
22.5 | | 22.5 | | ||||||||||||
Greek bonds |
8.6 | | 8.6 | | ||||||||||||
Pension plan assets |
114.6 | | 114.6 | | ||||||||||||
Foreign currency exchange contracts |
0.3 | | 0.3 | | ||||||||||||
Other |
0.3 | 0.2 | | 0.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total assets |
$ | 228.4 | $ | 82.3 | $ | 146.0 | $ | 0.1 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Liabilities: |
||||||||||||||||
Interest rate swaps |
$ | 77.4 | $ | | $ | 77.4 | $ | | ||||||||
Foreign currency exchange contracts |
0.1 | | 0.1 | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total liabilities |
$ | 77.5 | $ | | $ | 77.5 | $ | | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Fair Value Measurements | ||||||||||||||||
Fair Value at | Using Inputs Considered as | |||||||||||||||
(in millions) | May 31, 2012 | Level 1 | Level 2 | Level 3 | ||||||||||||
Assets: |
||||||||||||||||
Money market funds |
$ | 303.1 | $ | 303.1 | $ | | $ | | ||||||||
Time deposits |
36.3 | | 36.3 | | ||||||||||||
Greek bonds |
6.3 | | 6.3 | | ||||||||||||
Pension plan assets |
108.7 | | 108.7 | | ||||||||||||
Foreign currency exchange contracts |
0.2 | | 0.2 | | ||||||||||||
Other |
0.2 | | | 0.2 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total assets |
$ | 454.8 | $ | 303.1 | $ | 151.5 | $ | 0.2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Liabilities: |
||||||||||||||||
Interest rate swaps |
$ | 76.2 | $ | | $ | 76.2 | $ | | ||||||||
Foreign currency exchange contracts |
0.2 | | 0.2 | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total liabilities |
$ | 76.4 | $ | | $ | 76.4 | $ | | ||||||||
|
|
|
|
|
|
|
|
Level 3 Valuation Techniques
Financial assets are considered Level 3 when their fair values are determined using pricing models, discounted cash flow methodologies or similar techniques and at least one significant model assumption or input is unobservable. Level 3 financial assets also include certain investment securities for which there is limited market activity where the determination of fair value requires significant judgment or estimation. Level 3 investment securities primarily include other equity investments for which there was a decrease in the observation of market pricing. As of November 30, 2012 and May 31, 2012, these securities were valued primarily using internal cash flow valuation that incorporates transaction details such as contractual terms, maturity, timing and amount of future cash flows, as well as assumptions about liquidity and credit valuation adjustments of marketplace participants.
The estimated fair value of the Companys long-term debt, including the current portion, at November 30, 2012 was $6,077.9 million, compared to a carrying value of $6,039.6 million. The fair value of the Companys traded debt was estimated using quoted market prices for the same or similar instruments. The fair value of the Companys variable rate term debt was estimated using the carrying value as this debt has rates which approximate market interest rates. In determining the fair values and carrying values, the Company considers the terms of the related debt and excludes the impacts of debt discounts and interest rate swaps.
Assets and Liabilities that are Measured at Fair Value on a Nonrecurring Basis
During the three and six months ended November 30, 2012 and 2011, the Company had no significant measurements of assets or liabilities at fair value on a nonrecurring basis subsequent to their initial recognition.
18
Note 9Derivative Instruments and Hedging Activities.
The Company is exposed to certain market risks relating to its ongoing business operations, including foreign currency risk, interest rate risk and commodity price risk. The Company currently manages foreign currency risk and interest rate risk through the use of derivatives.
Derivatives Designated as Hedging Instruments
Foreign Currency InstrumentsCertain assets, liabilities and forecasted transactions are exposed to foreign currency risk, primarily the fluctuation of the U.S. dollar against the euro. The Company has hedged a portion of its net investment in its European subsidiaries with the issuance of a 875.0 million (approximately $1,207.4 million at September 25, 2007) principal amount euro term loan on September 25, 2007. The Companys net investment in its European subsidiaries at the hedging date of September 25, 2007 was 1,238.0 million ($1,690.0 million). As of November 30, 2012, the Companys net investment in European subsidiaries totaled 1,856.7 million ($2,407.6 million) and the outstanding principal balance of the euro term loan was 831.4 million ($1,078.0 million). The difference of 1,025.3 million ($1,329.6 million) is unhedged as of November 30, 2012. Hedge effectiveness is tested quarterly to determine whether hedge treatment is still appropriate. The Company tests effectiveness on this net investment hedge by determining if the net investment in its European subsidiaries is greater than the outstanding euro-denominated debt balance. Any amount of a derivative instrument designated as a hedge determined to be ineffective is recorded as other (income) expense.
Interest Rate InstrumentsThe Company uses interest rate swap agreements (cash flow hedges) in both U.S. dollars and euros as a means of fixing the interest rate on portions of its floating-rate debt instruments. As of November 30, 2012, the Company had a swap liability of $77.4 million, which consisted of $27.5 million short-term and $52.8 million long-term, partially offset by a $2.9 million credit valuation adjustment. As of May 31, 2012, the Company had a swap liability of $76.2 million, which consisted of $36.0 million short-term and $41.0 million long-term, partially offset by a $0.8 million credit valuation adjustment.
The table below summarizes existing swap agreements at November 30, 2012 and May 31, 2012:
(U.S. dollars and euros in millions) | Fair Value at | Fair Value at | ||||||||||||||||
Notional | November 30, 2012 | May 31, 2012 | ||||||||||||||||
Structure |
Currency | Amount | Effective Date |
Termination Date |
Asset (Liability) | Asset (Liability) | ||||||||||||
5 year |
EUR | | 230.0 | September 25, 2007 | September 25, 2012 | $ | | $ | (3.5 | ) | ||||||||
5 year |
EUR | 40.0 | March 25, 2008 | March 25, 2013 | (0.6 | ) | (1.4 | ) | ||||||||||
5 year |
EUR | 200.0 | September 25, 2012 | September 25, 2017 | (12.9 | ) | (9.5 | ) | ||||||||||
5 year |
EUR | 200.0 | September 25, 2012 | September 25, 2017 | (12.7 | ) | (9.3 | ) | ||||||||||
5 year |
USD | $ | 585.0 | September 25, 2007 | September 25, 2012 | | (8.9 | ) | ||||||||||
5 year |
USD | 190.0 | March 25, 2008 | March 25, 2013 | (1.8 | ) | (4.2 | ) | ||||||||||
5 year |
USD | 325.0 | December 26, 2008 | December 25, 2013 | (7.0 | ) | (9.0 | ) | ||||||||||
5 year |
USD | 195.0 | September 25, 2009 | September 25, 2014 | (9.2 | ) | (10.5 | ) | ||||||||||
2 year |
USD | 190.0 | March 25, 2013 | March 25, 2015 | (2.0 | ) | (1.0 | ) | ||||||||||
3 year |
USD | 270.0 | December 27, 2013 | September 25, 2016 | (6.8 | ) | (3.8 | ) | ||||||||||
5 year |
USD | 350.0 | September 25, 2012 | September 25, 2017 | (13.7 | ) | (8.0 | ) | ||||||||||
5 year |
USD | 350.0 | September 25, 2012 | September 25, 2017 | (13.6 | ) | (7.9 | ) | ||||||||||
Credit valuation adjustment |
2.9 | 0.8 | ||||||||||||||||
|
|
|
|
|||||||||||||||
Total interest rate instruments |
$ | (77.4 | ) | $ | (76.2 | ) | ||||||||||||
|
|
|
|
The interest rate swaps are recorded in other accrued expenses and other long-term liabilities. As a result of cash flow hedge treatment being applied, all unrealized gains and losses related to the derivative instruments are recorded in accumulated other comprehensive income (loss) and are reclassified into operations in the same period in which the hedged transaction affects earnings. Hedge effectiveness is tested quarterly to determine if hedge treatment is still appropriate. The amount of ineffectiveness was not material for any period presented. The tables below summarize the effective portion and ineffective portion of the Companys interest rate swaps for the three and six months ended November 30, 2012 and 2011:
(in millions) | Three Months Ended | Six Months Ended | ||||||||||||||
Derivatives in cash flow hedging relationship |
November 30, 2012 | November 30, 2011 | November 30, 2012 | November 30, 2011 | ||||||||||||
Interest rate swaps: |
||||||||||||||||
Amount of gain (loss) recognized in OCI |
$ | 3.0 | $ | 19.5 | $ | (1.2 | ) | $ | 28.5 | |||||||
Amount of (gain) loss reclassified from accumulated OCI into interest expense (effective portion) |
| | | | ||||||||||||
Amount (gain) loss recognized in other income (expense) (ineffective portion and amount excluded from effectiveness testing) |
| | | |
As of November 30, 2012, the effective interest rate, including the applicable lending margin, on 63.42% ($1,410.0 million) of the outstanding principal of the Companys U.S. dollar term loan was fixed at 5.46% through the use of interest rate swaps. The effective interest rate on 52.93% (440.0 million) of the outstanding principal of the Companys euro term loan was fixed at 5.68% through the use of interest rate swaps. The remaining unhedged balances of the U.S. dollar and euro term loans had effective interest rates of 3.85% and 3.73%, respectively. As of November 30, 2012 and May 31, 2012, the Companys effective weighted average interest rate on all outstanding debt, including the interest rate swaps, was 6.94% and 7.80%, respectively.
19
Note 9Derivative Instruments and Hedging Activities, Continued.
Derivatives Not Designated as Hedging Instruments
Foreign Currency InstrumentsThe Company faces transactional currency exposures that arise when it or its foreign subsidiaries enter into transactions, primarily on an intercompany basis, denominated in currencies other than their functional currency. The Company enters into short-term forward currency exchange contracts in order to mitigate the currency exposure related to these intercompany payables and receivables arising from intercompany trade. The Company does not designate these contracts as hedges; therefore, all forward currency exchange contracts are recorded at their fair value each period, with the resulting gains and losses recorded in other (income) expense. Any foreign currency remeasurement gains or losses recognized in a period are generally offset with gains or losses on the forward currency exchange contracts. As of November 30, 2012, the fair value of the Companys derivatives not designated as hedging instruments on a gross basis were assets of $0.3 million recorded in prepaid expenses and other, and liabilities of $0.1 million recorded in other accrued expenses.
Note 10Accumulated Other Comprehensive Income (Loss).
Other comprehensive income (loss) includes currency translation adjustments, certain derivative-related activity, changes in the value of available-for-sale investments, and changes in prior service cost from pension plans. The Company generally deems its foreign investments to be essentially permanent in nature and does not provide for taxes on currency translation adjustments arising from translating the investment in a foreign currency to U.S. dollars. When the Company determines that a foreign investment is no longer permanent in nature, estimated taxes are provided for the related deferred tax liability (asset), if any, resulting from currency translation adjustments.
Accumulated other comprehensive income (loss) and the related components are included in the table below:
(in millions) | November 30, 2012 | May 31, 2012 | ||||||
Unrealized loss on available-for-sale securities, net of tax |
$ | 1.6 | $ | (0.5 | ) | |||
Unrealized gain (loss) on interest rate swaps, net of tax |
(48.0 | ) | (47.3 | ) | ||||
Foreign currency translation adjustments |
181.4 | 173.7 | ||||||
Unrecognized actuarial gain (loss) on pension assets, net of tax |
(3.3 | ) | (3.0 | ) | ||||
|
|
|
|
|||||
$ | 131.7 | $ | 122.9 | |||||
|
|
|
|
Note 11Stock-based Compensation and Stock Plans.
The Company expenses all stock-based payments to employees and non-employee distributors, including stock options, leveraged share awards and restricted stock units, based on the grant date fair value over the required award service period using the graded vesting attribution method. For awards with a performance vesting condition, the Company recognizes expense when the performance condition is considered probable to occur. Stock-based compensation expense recognized was $7.4 million and $4.0 million for the three months ended November 30, 2012 and 2011 and $26.5 million and $8.7 million for the six months ended November 30, 2012 and 2011, respectively. The increase in the expense was related to the modification that is described below.
On July 2, 2012, LVB launched a tender offer to eligible employees to exchange all of the stock options and restricted stock units held by such employees for new stock options and restricted stock units. Following the expiration of the tender offer on July 30, 2012, LVB accepted for exchange eligible options to purchase an aggregate of 29,532,500 shares of common stock of LVB and eligible restricted stock units underlying an aggregate of 3,665,000 shares of common stock of LVB. In accordance with the terms and conditions of the tender offer, on July 31, 2012, LVB granted 29,821,500 new options and 10,795,000 new restricted stock units in exchange for the cancellation of such tendered options and restricted stock units.
The objective of the tender offer was to provide employees who elected to participate with new options and new restricted stock units, the terms of which preserve the original incentive effect of the Companys equity incentive programs in light of market and industry-wide economic conditions. The terms of the new stock options differed in respect to the tendered options principally with respect to:
| Exercise PriceThe exercise price for the new stock options was lowered to the current fair value of $7.88 per share. |
20
Note 11Stock-based Compensation and Stock Plans, Continued.
| Vesting PeriodsAll prior options that were vested as of the completion date of the tender offer remain vested. All time-vesting options which were unvested as of the completion date of the tender offer will continue to vest on the same schedule on which they were originally granted. All unvested replacement extended time vesting options and modified performance options will vest on a schedule which is generally two years longer than the original vesting schedule, but in no case past 2017. |
| Performance Vesting ThresholdThe new modified performance options will vest over the new vesting period if, as of the end of the Companys most recent fiscal year ending on or prior to such vesting date, Biomet, Inc. has achieved the EBITDA target for such fiscal year determined by the Compensation Committee of the Board of Directors of the Company on or before the ninetieth (90th) day of such fiscal year and consistent with the Companys business plan. |
The terms of the new restricted stock units are different from the tendered restricted stock units with respect to the vesting schedule, performance conditions and settlement. The new restricted stock units are granted subject to either a time-based vesting or a performance-based vesting requirement. Unlike the exchanged restricted stock units, the new restricted stock units do not vest in full on May 31, 2016 regardless of satisfaction of the vesting conditions. In addition, following the termination of employment with the Company, new restricted stock units, whether vested or unvested, will be forfeited if such employee provides services to any competitor of the Company. In addition, participants holding new restricted stock units will also receive new awards called management dividend awards representing the right to receive a cash payment. Management dividend awards vest on a one-to-one basis with each new time-based restricted stock unit. Vested management dividend awards will be paid by cash distributions promptly following each anniversary of the grant date until the earlier of an initial public offering of the Company or the fifth anniversary of the grant date, subject to withholding taxes. Upon termination of employment for any reason, management dividend awards will be forfeited. The new restricted stock units were granted under the Companys 2012 Restricted Stock Unit Plan, which was adopted by LVB on July 31, 2012. The maximum number of shares of common stock, par value $0.01 per share, that may be issued under the Companys 2012 Restricted Stock Unit Plan is 14,000,000, subject to adjustment as described in the Plan.
During the second quarter of fiscal year 2013 the distributor options were modified to lower the exercise price to the current fair value of $7.88 per share.
Note 12Income Taxes.
The Company applies guidance issued by the FASB for uncertainty in income taxes. The Company records the liability for unrecognized tax benefits (UTBs) as a long-term liability.
The Company conducts business globally and, as a result, certain of its subsidiaries file income tax returns in the U.S. federal jurisdiction, and various state and foreign jurisdictions. In the normal course of business, the Company is subject to examinations by taxing authorities throughout the world, including major jurisdictions such as Australia, Canada, France, Germany, Japan, Netherlands, Spain, the United Kingdom and the United States. In addition, certain state and foreign tax returns are under examination by various regulatory authorities. The Company is no longer subject to U.S. federal income tax examinations for the fiscal years prior to and including the year ended May 31, 2008.
The Company regularly reviews issues that are raised from ongoing examinations and open tax years to evaluate the adequacy of its liabilities. As the various taxing authorities continue with their audit/examination programs, the Company will adjust its reserves accordingly to reflect these settlements. As of November 30, 2012, the Company does not anticipate a significant change in its worldwide gross liabilities for unrecognized tax benefits within the succeeding twelve months.
The Companys effective income tax rate was 22.8% and 43.0% for the three and six months ended November 30, 2012 compared to 36.1% and 35.0% for the three and six months ended November 30, 2011. The primary factor in determining the effective tax rate is the mix of various jurisdictions in which profits are projected to be earned and taxed. The Companys effective income tax rate for the six months ended November 30, 2012 is higher than the effective income tax rates for the six months ended November 30, 2011 primarily due to differences in assertions regarding the expected repatriation of earnings of the Companys foreign operations. Fluctuations in effective tax rates between comparable periods also reflect the discrete tax benefit or expense of items in continuing operations that represent tax affects not attributable to current-year ordinary income. Discrete items, consisting primarily of the tax benefit associated with the reduction of net deferred tax liabilities due to the prospective reduction of the United Kingdom statutory corporate tax rate enacted in July 2012 had the effect of increasing the income tax benefit by $3.6 million in the six months ended November 30, 2012. The tax benefit for the six months ended November 30, 2011 was increased by $11.1 million due to discrete items consisting primarily of the tax benefit associated with the reduction of net deferred tax liabilities due to the prospective reduction of corporate tax rates in Japan and the United Kingdom.
21
Note 13Segment Reporting.
The Company operates in one reportable segment, musculoskeletal products, which includes the designing, manufacturing and marketing of large joint reconstructive; sports, extremities and trauma (S.E.T.); spine and bone healing; dental; and other products. Other products consist primarily of microfixation products, autologous therapies, general instruments and operating room supplies. The Company operates in various geographies. These geographic markets are comprised of the United States, Europe and International. Major markets included in the International geographic market are Canada, South America, Mexico and the Asia Pacific region.
Net sales by product category for the three and six months ended November 30, 2012 and 2011 were as follows:
Three Months Ended November 30, | Six Months Ended November 30, | |||||||||||||||
(in millions) | 2012 | 2011(1) | 2012 | 2011(1) | ||||||||||||
Net sales by product: |
||||||||||||||||
Large Joint Reconstructive |
$ | 444.2 | $ | 439.5 | $ | 837.2 | $ | 836.5 | ||||||||
S.E.T. |
152.2 | 87.3 | 279.5 | 169.1 | ||||||||||||
Spine & Bone Healing |
74.3 | 75.4 | 152.2 | 150.0 | ||||||||||||
Dental |
67.1 | 73.6 | 124.1 | 132.9 | ||||||||||||
Other |
52.3 | 49.3 | 104.5 | 101.2 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 790.1 | $ | 725.1 | $ | 1,497.5 | $ | 1,389.7 | ||||||||
|
|
|
|
|
|
|
|
(1) | Certain amounts have been adjusted to conform to the current presentation. The current presentation aligns with how the Company presently manages and markets its products. |
Net sales by geography for the three and six months ended November 30, 2012 and 2011 were as follows:
Three Months Ended November 30, | Six Months Ended November 30, | |||||||||||||||
(in millions) | 2012 | 2011 | 2012 | 2011 | ||||||||||||
Net sales by geography: |
||||||||||||||||
United States |
$ | 470.8 | $ | 426.3 | $ | 923.0 | $ | 841.0 | ||||||||
Europe |
193.9 | 195.1 | 336.8 | 343.6 | ||||||||||||
International(1) |
125.4 | 103.7 | 237.7 | 205.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 790.1 | $ | 725.1 | $ | 1,497.5 | $ | 1,389.7 | ||||||||
|
|
|
|
|
|
|
|
(1) | International primarily includes Canada, South America, Mexico and the Asia Pacific region. |
Long-term assets by geography as of November 30, 2012 and May 31, 2012 were as follows:
(in millions) | November 30, 2012 | May 31, 2012 | ||||||
Long-term assets (1) by geography: |
||||||||
United States |
$ | 6,772.1 | $ | 6,817.5 | ||||
Europe |
843.9 | 722.7 | ||||||
International |
1,116.5 | 1,098.2 | ||||||
|
|
|
|
|||||
Total |
$ | 8,732.5 | $ | 8,638.4 | ||||
|
|
|
|
(1) | Defined as property, plant and equipment, intangibles and goodwill. |
Note 14Guarantor and Non-Guarantor Financial Statements.
Each of Biomet, Inc.s existing wholly owned domestic subsidiaries fully, unconditionally, jointly, and severally guarantee the senior notes on a senior unsecured basis and the senior subordinated notes on a senior subordinated unsecured basis, in each case to the extent such subsidiaries guarantee Biomet, Inc.s senior secured cash flow facilities. Certain amounts reported in the prior year elimination column have been corrected to more accurately reflect the allocation of intercompany profit between the guarantor and the non-guarantor subsidiaries and to conform to the current period presentation. The Company believes such amounts are immaterial. LVB Acquisition, Inc. is neither an issuer nor guarantor of the notes described in Note 7.
22
Note 14Guarantor and Non-Guarantor Financial Statements, Continued.
The following financial information presents the composition of the combined guarantor subsidiaries:
CONDENSED CONSOLIDATING BALANCE SHEETS
November 30, 2012 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantors | Non-Guarantors | Eliminations | Total | |||||||||||||||
Assets |
||||||||||||||||||||
Current assets: |
||||||||||||||||||||
Cash and cash equivalents |
$ | | $ | 55.0 | $ | 112.5 | $ | | $ | 167.5 | ||||||||||
Accounts receivable, net |
| 271.2 | 284.8 | | 556.0 | |||||||||||||||
Investments |
| | 2.6 | | 2.6 | |||||||||||||||
Income tax receivable |
| 1.9 | 3.8 | | 5.7 | |||||||||||||||
Inventories, net |
| 312.0 | 362.1 | | 674.1 | |||||||||||||||
Deferred income taxes |
| 46.3 | 9.3 | | 55.6 | |||||||||||||||
Prepaid expenses and other |
| 63.1 | 81.8 | | 144.9 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
| 749.5 | 856.9 | | 1,606.4 | |||||||||||||||
Property, plant and equipment, net |
| 360.3 | 332.9 | | 693.2 | |||||||||||||||
Investments |
| 10.7 | 12.4 | | 23.1 | |||||||||||||||
Investment in subsidiaries |
8,711.9 | | | (8,711.9 | ) | | ||||||||||||||
Intangible assets, net |
| 3,111.7 | 754.2 | | 3,865.9 | |||||||||||||||
Goodwill |
| 3,314.3 | 859.1 | | 4,173.4 | |||||||||||||||
Other assets |
| 90.4 | 12.7 | | 103.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 8,711.9 | $ | 7,636.9 | $ | 2,828.2 | $ | (8,711.9 | ) | $ | 10,465.1 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities & Shareholders Equity |
||||||||||||||||||||
Current liabilities: |
||||||||||||||||||||
Current portion of long-term debt |
$ | 33.0 | $ | | $ | 1.3 | $ | | $ | 34.3 | ||||||||||
Accounts payable |
| 48.1 | 54.7 | | 102.8 | |||||||||||||||
Accrued interest |
55.1 | | 0.1 | | 55.2 | |||||||||||||||
Accrued wages and commissions |
| 60.6 | 52.3 | | 112.9 | |||||||||||||||
Other accrued expenses |
| 107.5 | 64.5 | | 172.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
88.1 | 216.2 | 172.9 | | 477.2 | |||||||||||||||
Long-term debt |
6,003.7 | | 1.6 | | 6,005.3 | |||||||||||||||
Deferred income taxes |
| 975.9 | 182.4 | | 1,158.3 | |||||||||||||||
Other long-term liabilities |
| 153.4 | 50.8 | | 204.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities |
6,091.8 | 1,345.5 | 407.7 | | 7,845.0 | |||||||||||||||
Shareholders equity |
2,620.1 | 6,291.4 | 2,420.5 | (8,711.9 | ) | 2,620.1 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities and shareholders equity |
$ | 8,711.9 | $ | 7,636.9 | $ | 2,828.2 | $ | (8,711.9 | ) | $ | 10,465.1 | |||||||||
|
|
|
|
|
|
|
|
|
|
23
Note 14Guarantor and Non-Guarantor Financial Statements, Continued.
May 31, 2012 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantors | Non-Guarantors | Eliminations | Total | |||||||||||||||
Assets |
||||||||||||||||||||
Current assets: |
||||||||||||||||||||
Cash and cash equivalents |
$ | | $ | 190.1 | $ | 302.3 | $ | | $ | 492.4 | ||||||||||
Accounts receivable, net |
| 227.6 | 264.0 | | 491.6 | |||||||||||||||
Investments |
| | 2.5 | | 2.5 | |||||||||||||||
Income tax receivable |
| 2.1 | 2.9 | | 5.0 | |||||||||||||||
Inventories, net |
| 288.7 | 254.5 | | 543.2 | |||||||||||||||
Deferred income taxes |
| 42.3 | 10.2 | | 52.5 | |||||||||||||||
Prepaid expenses and other |
| 48.8 | 75.3 | | 124.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current assets |
| 799.6 | 911.7 | | 1,711.3 | |||||||||||||||
Property, plant and equipment, net |
| 320.1 | 273.5 | | 593.6 | |||||||||||||||
Investments |
| 10.1 | 3.8 | | 13.9 | |||||||||||||||
Investment in subsidiaries |
8,562.9 | | | (8,562.9 | ) | | ||||||||||||||
Intangible assets, net |
| 3,239.3 | 691.1 | | 3,930.4 | |||||||||||||||
Goodwill |
| 3,271.4 | 843.0 | | 4,114.4 | |||||||||||||||
Other assets |
| 45.6 | 11.2 | | 56.8 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total assets |
$ | 8,562.9 | $ | 7,686.1 | $ | 2,734.3 | $ | (8,562.9 | ) | $ | 10,420.4 | |||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Liabilities & Shareholders Equity |
||||||||||||||||||||
Current liabilities: |
||||||||||||||||||||
Current portion of long-term debt |
$ | 34.3 | $ | | $ | 1.3 | $ | | $ | 35.6 | ||||||||||
Accounts payable |
| 71.5 | 44.7 | | 116.2 | |||||||||||||||
Accrued interest |
56.5 | | | | 56.5 | |||||||||||||||
Accrued wages and commissions |
| 69.5 | 52.5 | | 122.0 | |||||||||||||||
Other accrued expenses |
| 106.1 | 74.1 | | 180.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total current liabilities |
90.8 | 247.1 | 172.6 | | 510.5 | |||||||||||||||
Long-term debt |
5,790.0 | | 2.2 | | 5,792.2 | |||||||||||||||
Deferred income taxes |
| 1,065.7 | 192.1 | | 1,257.8 | |||||||||||||||
Other long-term liabilities |
| 131.6 | 46.2 | | 177.8 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities |
5,880.8 | 1,444.4 | 413.1 | | 7,738.3 | |||||||||||||||
Shareholders equity |
2,682.1 | 6,241.7 | 2,321.2 | (8,562.9 | ) | 2,682.1 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total liabilities and shareholders equity |
$ | 8,562.9 | $ | 7,686.1 | $ | 2,734.3 | $ | (8,562.9 | ) | $ | 10,420.4 | |||||||||
|
|
|
|
|
|
|
|
|
|
24
Note 14Guarantor and Non-Guarantor Financial Statements, Continued.
CONDENSED CONSOLIDATING STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (LOSS)
Three Months Ended November 30, 2012 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantors | Non-Guarantors | Eliminations | Total | |||||||||||||||
Net sales |
$ | | $ | 486.5 | $ | 303.6 | $ | | $ | 790.1 | ||||||||||
Cost of sales |
| 159.6 | 76.4 | | 236.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Gross profit |
| 326.9 | 227.2 | | 554.1 | |||||||||||||||
Operating expenses |
| 280.2 | 130.7 | | 410.9 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating income (loss) |
| 46.7 | 96.5 | | 143.2 | |||||||||||||||
Other (income) expense, net |
229.0 | 2.1 | (2.2 | ) | | 228.9 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) before income taxes |
(229.0 | ) | 44.6 | 98.7 | | (85.7 | ) | |||||||||||||
Tax expense (benefit) |
(87.1 | ) | 17.0 | 50.6 | | (19.5 | ) | |||||||||||||
Equity in earnings of subsidiaries |
75.7 | | | (75.7 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
$ | (66.2 | ) | $ | 27.6 | $ | 48.1 | $ | (75.7 | ) | $ | (66.2 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Other comprehensive income (loss) |
$ | 1.9 | $ | | $ | (14.5 | ) | $ | | $ | (12.6 | ) | ||||||||
Total comprehensive income (loss) |
$ | (64.3 | ) | $ | 27.6 | $ | 33.6 | $ | (75.7 | ) | $ | (78.8 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Three Months Ended November 30, 2011 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantors | Non-Guarantors | Eliminations | Total | |||||||||||||||
Net sales |
$ | | $ | 441.8 | $ | 283.3 | $ | | $ | 725.1 | ||||||||||
Cost of sales |
| 128.5 | 106.4 | | 234.9 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Gross profit |
| 313.3 | 176.9 | | 490.2 | |||||||||||||||
Operating expenses |
| 256.5 | 129.9 | | 386.4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating income (loss) |
| 56.8 | 47.0 | | 103.8 | |||||||||||||||
Other (income) expense, net |
119.7 | 0.1 | 5.9 | | 125.7 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) before income taxes |
(119.7 | ) | 56.7 | 41.1 | | (21.9 | ) | |||||||||||||
Tax expense (benefit) |
(38.2 | ) | 25.1 | 5.2 | | (7.9 | ) | |||||||||||||
Equity in earnings of subsidiaries |
67.5 | | | (67.5 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
$ | (14.0 | ) | $ | 31.6 | $ | 35.9 | $ | (67.5 | ) | $ | (14.0 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Other comprehensive income (loss) |
$ | 12.1 | $ | | $ | (65.8 | ) | $ | | $ | (53.7 | ) | ||||||||
Total comprehensive income (loss) |
$ | (1.9 | ) | $ | 31.6 | $ | (29.9 | ) | $ | (67.5 | ) | $ | (67.7 | ) | ||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Six Months Ended November 30, 2012 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantors | Non-Guarantors | Eliminations | Total | |||||||||||||||
Net sales |
$ | | $ | 951.3 | $ | 546.2 | $ | | $ | 1,497.5 | ||||||||||
Cost of sales |
| 343.9 | 120.2 | | 464.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Gross profit |
| 607.4 | 426.0 | | 1,033.4 | |||||||||||||||
Operating expenses |
| 566.3 | 254.9 | | 821.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating income (loss) |
| 41.1 | 171.1 | | 212.2 | |||||||||||||||
Other (income) expense, net |
388.3 | 0.8 | (5.6 | ) | | 383.5 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) before income taxes |
(388.3 | ) | 40.3 | 176.7 | | (171.3 | ) | |||||||||||||
Tax expense (benefit) |
(147.6 | ) | 15.3 | 58.7 | | (73.6 | ) | |||||||||||||
Equity in earnings of subsidiaries |
143.0 | | | (143.0 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
$ | (97.7 | ) | $ | 25.0 | $ | 118.0 | $ | (143.0 | ) | $ | (97.7 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Other comprehensive income (loss) |
$ | (0.7 | ) | $ | | $ | 9.5 | $ | | $ | 8.8 | |||||||||
Total comprehensive income (loss) |
$ | (98.4 | ) | $ | 25.0 | $ | 127.5 | $ | (143.0 | ) | $ | (88.9 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
25
Note 14Guarantor and Non-Guarantor Financial Statements, Continued.
Six Months Ended November 30, 2011 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantors | Non-Guarantors | Eliminations | Total | |||||||||||||||
Net sales |
$ | | $ | 868.5 | $ | 521.2 | $ | | $ | 1,389.7 | ||||||||||
Cost of sales |
| 249.8 | 200.4 | | 450.2 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Gross profit |
| 618.7 | 320.8 | | 939.5 | |||||||||||||||
Operating expenses |
| 504.3 | 258.7 | | 763.0 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Operating income (loss) |
| 114.4 | 62.1 | | 176.5 | |||||||||||||||
Other (income) expense, net |
243.1 | 1.5 | 13.7 | | 258.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income (loss) before income taxes |
(243.1 | ) | 112.9 | 48.4 | | (81.8 | ) | |||||||||||||
Tax expense (benefit) |
(77.6 | ) | 42.9 | 6.1 | | (28.6 | ) | |||||||||||||
Equity in earnings of subsidiaries |
112.3 | | | (112.3 | ) | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income (loss) |
$ | (53.2 | ) | $ | 70.0 | $ | 42.3 | $ | (112.3 | ) | $ | (53.2 | ) | |||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Other comprehensive income (loss) |
$ | 18.0 | $ | | $ | (48.6 | ) | $ | | $ | (30.6 | ) | ||||||||
Total comprehensive income (loss) |
$ | (35.2 | ) | $ | 70.0 | $ | (6.3 | ) | $ | (112.3 | ) | $ | (83.8 | ) | ||||||
|
|
|
|
|
|
|
|
|
|
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS
Six Months Ended November 30, 2012 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantor | Non-Guarantors | Eliminations | Total | |||||||||||||||
Cash flows provided by (used in) operating activities |
$ | 76.2 | $ | 108.2 | $ | 87.2 | $ | (143.0 | ) | $ | 128.6 | |||||||||
Capital expenditures |
| (53.8 | ) | (53.1 | ) | | (106.9 | ) | ||||||||||||
Acquisitions, net of cash acquired - Trauma Acquisition |
| (277.5 | ) | (2.5 | ) | | (280.0 | ) | ||||||||||||
Other acquisitions, net of cash acquired |
| (14.8 | ) | (1.2 | ) | | (16.0 | ) | ||||||||||||
Other |
(31.0 | ) | 102.9 | (221.3 | ) | 143.0 | (6.4 | ) | ||||||||||||
Cash flows provided by (used in) investing activities |
(31.0 | ) | (243.2 | ) | (278.1 | ) | 143.0 | (409.3 | ) | |||||||||||
Payments under senior secured credit facilities |
(11.4 | ) | | (5.3 | ) | | (16.7 | ) | ||||||||||||
Proceeds under asset based revolver |
80.0 | | | | 80.0 | |||||||||||||||
Proceeds from senior notes due 2020 |
2,666.2 | | | | 2,666.2 | |||||||||||||||
Tender/retirement of senior notes due 2017 |
(2,702.2 | ) | | | | (2,702.2 | ) | |||||||||||||
Payment of fees related to refinancing activities |
(67.8 | ) | | | | (67.8 | ) | |||||||||||||
Other |
(10.0 | ) | (0.1 | ) | (0.7 | ) | | (10.8 | ) | |||||||||||
Cash flows used in financing activities |
(45.2 | ) | (0.1 | ) | (6.0 | ) | | (51.3 | ) | |||||||||||
Effect of exchange rate changes on cash |
| | 7.1 | | 7.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Decrease in cash and cash equivalents |
| (135.1 | ) | (189.8 | ) | | (324.9 | ) | ||||||||||||
Cash and cash equivalents, beginning of period |
| 190.1 | 302.3 | | 492.4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents, end of period |
$ | | $ | 55.0 | $ | 112.5 | $ | | $ | 167.5 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Six Months Ended November 30, 2011 | ||||||||||||||||||||
(in millions) | Biomet, Inc. | Guarantor | Non-Guarantors | Eliminations | Total | |||||||||||||||
Cash flows provided by (used in) operating activities |
$ | (53.2 | ) | $ | 199.1 | $ | 100.1 | $ | (112.2 | ) | $ | 133.8 | ||||||||
Proceeds from sales/maturities of investments |
| 33.7 | | | 33.7 | |||||||||||||||
Net proceeds from sale of property and equipment |
| 13.1 | | | 13.1 | |||||||||||||||
Capital expenditures |
| (42.2 | ) | (39.0 | ) | | (81.2 | ) | ||||||||||||
Other acquisitions, net of cash acquired |
| (14.4 | ) | | | (14.4 | ) | |||||||||||||
Other |
72.3 | (166.7 | ) | (18.0 | ) | 112.2 | (0.2 | ) | ||||||||||||
Cash flows provided by (used in) investing activities |
72.3 | (176.5 | ) | (57.0 | ) | 112.2 | (49.0 | ) | ||||||||||||
Payments under senior secured credit facilities |
(18.0 | ) | | | | (18.0 | ) | |||||||||||||
Other |
(1.1 | ) | | (0.8 | ) | | (1.9 | ) | ||||||||||||
Cash flows used in financing activities |
(19.1 | ) | | (0.8 | ) | | (19.9 | ) | ||||||||||||
Effect of exchange rate changes on cash |
| | (8.8 | ) | | (8.8 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Increase in cash and cash equivalents |
| 22.6 | 33.5 | | 56.1 | |||||||||||||||
Cash and cash equivalents, beginning of period |
| 176.4 | 151.4 | | 327.8 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents, end of period |
$ | | $ | 199.0 | $ | 184.9 | $ | | $ | 383.9 | ||||||||||
|
|
|
|
|
|
|
|
|
|
26
Note 15Contingencies.
The Company is involved in various proceedings, legal actions and claims arising in the normal course of business, including proceedings related to product liability, governmental investigations, intellectual property, commercial litigation and other matters. The outcomes of these matters will generally not be known for an extended period of time. In certain of the legal proceedings, the claimants seek damages, as well as other compensatory relief, which could result in the payment of significant claims and settlements. For legal matters for which management has sufficient information to reasonably estimate the Companys future obligations, a liability representing managements best estimate of the probable cost, or the minimum of the range of probable losses when a best estimate within the range is not known, for the resolution of these legal matters is recorded. The estimates are based on consultation with legal counsel, previous settlement experience and settlement strategies. The Companys accrual for contingencies at November 30, 2012 and May 31, 2012 of $30.7 million and $25.5 million, respectively, primarily relate to certain product liability claims and the Massachusetts U.S. Department of Justice EBI products investigation.
Based on the advice of the Companys counsel in these matters, it is unlikely that the resolution of any of these matters and any liabilities in excess of amounts provided will be material to the Companys financial position, results of operations or cash flows.
Other than the Massachusetts U.S. Department of Justice EBI products investigation, for which the estimated loss is included in the accrual referenced above, given the relatively early stages of the other governmental investigations and certain of the metal-on-metal product liability claims described below, and the complexities involved in these matters, the Company is unable to estimate a possible loss or range of possible loss for such matters until the Company knows, among other factors, (i) what claims, if any will survive dispositive motion practice, (ii) the extent of the claims, including the size of any potential class, particularly when damages are not specified or are indeterminate, (iii) how the discovery process will affect the litigation, (iv) the settlement posture of the other parties to the litigation and (v) any other factors that may have a material effect on the litigation.
U.S. Department of Justice Consulting Agreement Investigation
On September 27, 2007, Biomet entered into a Deferred Prosecution Agreement with the U.S. Attorneys Office for the District of New Jersey. The agreement concluded the governments investigation into whether consulting agreements between the largest orthopedic manufacturers and orthopedic surgeons who use joint reconstruction and replacement products may have violated the federal Anti-Kickback Statute.
Through the agreement, the U.S. Attorneys Office agreed not to prosecute Biomet in connection with this matter, provided that Biomet satisfied its obligations under the agreement over the 18 months following the date of the Deferred Prosecution Agreement. The agreement called for the appointment of an independent monitor to review Biomets compliance with the agreement, particularly in relation to its consulting agreements. On March 27, 2009, the Deferred Prosecution Agreement expired and the complaint was dismissed with prejudice.
As part of the resolution of this matter, Biomet also entered into a Corporate Integrity Agreement with the Office of the Inspector General of the U.S. Department of Health and Human Services. The agreement requires the Company for five years subsequent to September 27, 2007 to continue to adhere to its Code of Business Conduct and Ethics and certain other provisions, including reporting requirements. Biomet submitted its final report under the Corporate Integrity Agreement with the Office of the Inspector General and is awaiting a response.
U.S. Department of Justice EBI Products Investigations and Other Matters
In February 2010, Biomet received a subpoena from the Office of the Inspector General of the U.S. Department of Health and Human Services requesting various documents relating to agreements or arrangements between physicians and the Companys Interpore Cross subsidiary for the period from 1999 through the present and the marketing and sales activities associated with Interpore Cross spinal products. Biomet is cooperating with the request of the Office of the Inspector General. The Company can make no assurances as to the time or resources that will be needed to devote to this inquiry or its final outcome.
In April 2009, Biomet received an administrative subpoena from the U.S. Attorneys Office for the District of Massachusetts requesting various documents relating primarily to the Medicare reimbursement of and certain business practices related to the Companys EBI subsidiarys non-invasive bone growth stimulators. It is the Companys understanding that competitors in the non-invasive bone growth stimulation market received similar subpoenas. The Company received subsequent subpoenas in connection with the investigation in September 2009, June 2010, February 2011 and March 2012 along with several informal requests for information. Biomet has produced responsive documents and is fully cooperating in the investigation.
27
Note 15Contingencies, Continued.
In April 2009, the Company became aware of a qui tam complaint alleging violations of the federal and various state False Claims Acts filed in the United States District Court for the District of Massachusetts, where it is currently pending. Biomet, Parent, and several of the Companys competitors in the non-invasive bone growth stimulation market were named as defendants in this action. The allegations in the complaint are similar in nature to certain categories of requested documents in the above-referenced administrative subpoenas. The U.S. government has not intervened in the action. The Company is vigorously defending this matter and intends to continue to do so.
U.S. Department of Justice Civil Division Investigation
In September 2010, Biomet, received a Civil Investigative Demand (CID) issued by the U.S. Department of JusticeCivil Division pursuant to the False Claims Act. The CID requests that the Company provide documents and testimony related to allegations that Biomet, OtisMed Corp. and Stryker Corp. have violated the False Claims Act relating to the marketing of, and payment submissions for, OtisMeds OtisKneeTM (a registered trademark of OtisMed) knee replacement system. The Company has produced responsive documents and is fully cooperating in the investigation.
U.S. Securities and Exchange Commission (SEC) Informal Investigation
On September 25, 2007, Biomet received a letter from the SEC informing the Company that it is conducting an informal investigation regarding possible violations of the Foreign Corrupt Practices Act in the sale of medical devices in certain foreign countries by companies in the medical devices industry. The Foreign Corrupt Practices Act prohibits U.S. companies and their officers, directors, employees, or shareholders acting on their behalf and agents from offering, promising, authorizing or making payments to foreign officials for the purpose of obtaining or retaining business abroad or otherwise obtaining favorable treatment and this law requires companies to maintain records which fairly and accurately reflect transactions and to maintain internal accounting controls. In many countries, hospitals and clinics are government-owned and healthcare professionals employed by such hospitals and clinics, with whom the Company regularly interacts, may meet the definition of a foreign official for purposes of the Foreign Corrupt Practices Act. On November 9, 2007, the Company received a letter from the Department of Justice requesting any information provided to the SEC be provided to the Department of Justice on a voluntary basis.
On March 26, 2012, Biomet entered into a Deferred Prosecution Agreement (DPA) with the U.S. Department of Justice (DOJ) and a Consent to Final Judgment (Consent Agreement) with the SEC related to these investigations by the DOJ and the SEC. Pursuant to the DPA, the DOJ has agreed not to prosecute the Company in connection with this matter, provided that the Company satisfies its obligations under the agreement over the next three years. In addition, pursuant to the terms of the DPA, an independent external compliance monitor has been appointed to review the Companys compliance with the DPA, particularly in relation to the Companys international sales practices, for at least the first 18 months of the three year term of the DPA. The Company also agreed to pay a monetary penalty of $17.3 million to resolve the charges brought by the DOJ, which was paid in the fiscal fourth quarter of 2012. The terms of the DPA and the associated monetary penalty reflect the Companys full cooperation throughout the investigation.
The Company contemporaneously reached a Consent Agreement with the SEC to settle civil claims related to this matter. As part of the Consent Agreement, Biomet agreed to the SECs entry of a Final Judgment requiring Biomet to disgorge profits and pay prejudgment interest in the aggregate amount of $5.6 million, which was paid in the fiscal fourth quarter of 2012.
Product Liability
The Company has received claims for personal injury associated with its metal-on-metal hip products. The pre-trial management of certain of these claims has been consolidated in a federal court in South Bend, Indiana. Certain other claims are pending in various state courts. The number of claims continues to increase incrementally, the Company believes due to the negative publicity regarding metal-on-metal hip products generally. The Company believes it has data that supports the efficacy and safety of its metal-on-metal hip products, and the Company intends to vigorously defend itself in these matters. The Company currently accounts for these claims in accordance with its standard product liability accrual methodology on a case by case basis. Management does not believe that the outcome of the currently reported claims will have a material adverse effect on its consolidated financial positions or results of operations. However, the Company is unable to estimate the impact of future potential claims.
Future revisions in the Companys estimates of these provisions could materially impact its results of operations and financial position. The Company uses the best information available to determine the level of accrued product liabilities, and the Company believes its accruals are adequate. The Company has maintained product liability insurance coverage for a number of years on a claims-made basis. All such insurers have been placed on notice of these claims. To date, the insurance companies have neither accepted nor denied coverage, and an issue may arise as to which policy or policies are to respond. The amounts incurred to date in connection with these claims have not exceeded the Companys self-insured retention(s).
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Note 15Contingencies, Continued.
Other Matters
In January 2009, Heraeus Kulzer GmbH initiated legal proceedings in Germany against Biomet and its subsidiary, Biomet Europe BV, alleging that the Company and Biomet Europe BV misappropriated Heraeus Kulzer trade secrets when developing its new lines of European bone cements, which were first marketed in 2005. The lawsuit seeks damages in excess of 30 million and injunctive relief to preclude the Company from producing its current line of European bone cements. On December 20, 2012, the trial court ruled that Biomet did not misappropriate trade secrets and consequently dismissed Biomet, Biomet Europe BV, Biomet Deutschland GmbH and other defendants from the lawsuit. Biomet Orthopaedics Switzerland GmbH (Biomet Switzerland) remains as the only defendant in the lawsuit and the trial court has ruled as to it that Heraeus Kulzer will not be permitted to review certification materials of Biomet Switzerland for purposes of determining whether there is any evidence that would support a claim of trade secret misappropriation by that entity. The trial courts decision remains subject to appeal by Heraeus Kulzer and the Company is continuing to vigorously defend this matter.
There are various other claims, lawsuits, disputes with third parties, investigations and pending actions involving various allegations against the Company incident to the operation of its business, principally product liability and intellectual property cases. Each of these matters is subject to various uncertainties, and it is possible that some of these matters may be resolved unfavorably to the Company. The Company accrues for losses that are deemed to be probable and subject to reasonable estimate.
Note 16Related Parties.
Transactions with the Sponsor Group
On December 18, 2006, Biomet, Inc. entered into an Agreement and Plan of Merger with LVB Acquisition, LLC, a Delaware limited liability company, which was subsequently converted to a corporation, LVB Acquisition, Inc., and LVB Acquisition Merger Sub, Inc., an Indiana corporation and a wholly-owned subsidiary of Parent (Purchaser), which agreement was amended and restated as of June 7, 2007 and which we refer to as the Merger Agreement. Pursuant to the Merger Agreement, on June 13, 2007, Purchaser commenced a cash tender offer (the Offer) to purchase all of Biomet, Inc.s outstanding common shares, without par value (the Shares) at a price of $46.00 per Share (the Offer Price) without interest and less any required withholding taxes. The Offer was made pursuant to Purchasers offer to purchase dated June 13, 2007 and the related letter of transmittal, each of which was filed with the SEC on June 13, 2007. In connection with the Offer, Purchaser entered into a credit agreement dated as of July 11, 2007 for a $6,165.0 million senior secured term loan facility (the Tender Facility), maturing on June 6, 2008, and pursuant to which it borrowed approximately $4,181.0 million to finance a portion of the Offer and pay related fees and expenses. The Offer expired at midnight, New York City time, on July 11, 2007, with approximately 82% of the outstanding Shares having been tendered to Purchaser. At Biomet, Inc.s special meeting of shareholders held on September 5, 2007, more than 91% of Biomet, Inc.s shareholders voted to approve the proposed merger, and Parent acquired Biomet, Inc. on September 25, 2007 through a reverse subsidiary merger with Biomet, Inc. being the surviving company (the Merger). Subsequent to the acquisition, Biomet, Inc. became a subsidiary of Parent, which is controlled by LVB Acquisition Holding, LLC, or Holding, an entity controlled by a consortium of private equity funds affiliated with The Blackstone Group, Goldman, Sachs & Co., Kohlberg Kravis Roberts & Co., and TPG Global, LLC (each a Sponsor and collectively, the Sponsors), and certain investors who agreed to co-invest with the Sponsors (the Co-Investors). These transactions, including the Merger and the Companys payment of any fees and expenses related to these transactions, are referred to collectively as the Transactions.
Management Services Agreement
Upon completion of the Transactions, Biomet entered into a management services agreement with certain affiliates of the Sponsors, pursuant to which such affiliates of the Sponsors or their successors assigns, affiliates, officers, employees, and/or representatives and third parties (collectively, the Managers) provide management, advisory, and consulting services to the Company. Pursuant to such agreement, the Managers received a transaction fee equal to 1% of total enterprise value of the Transactions for the services rendered by such entities related to the Transactions upon entering into the agreement, and the Sponsors receive an annual monitoring fee equal to 1% of the Companys annual Adjusted EBITDA (as defined in the credit agreement) as compensation for the services rendered and reimbursement for out-of-pocket expenses incurred by the Managers in connection with the agreement and the Transactions. The Company is required to pay the Sponsors the monitoring fee on a quarterly basis in arrears. The total amount of Sponsor fees was $2.8 million and $2.8 million for the three months ended November 30, 2012 and 2011, respectively, and $5.4 million and $4.8 million for the six months ended November 30, 2012 and 2011, respectively. The Company may also pay certain subsequent fees to the Managers for advice rendered in connection with financings or refinancings (equity or debt), acquisitions, dispositions, spin-offs, split-offs, dividends, recapitalizations, an initial underwritten public offering and change of control transactions involving the Company or any of its subsidiaries. The management services agreement includes customary exculpation and indemnification provisions in favor of the Managers and their affiliates.
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Note 16Related Parties, Continued.
Amended and Restated Limited Liability Company Operating Agreement of Holding
On September 27, 2007, certain investment funds associated with or designated by the Sponsors (the Sponsor Funds) entered into an amended and restated limited liability company operating agreement, or the LLC Agreement, in respect of Holding. The LLC Agreement contains agreements among the parties with respect to the election of the Companys directors and the directors of its parent companies, restrictions on the issuance or transfer of interests in the Company and other corporate governance provisions (including the right to approve various corporate actions).
Pursuant to the LLC Agreement, each of the Sponsors has the right to nominate, and has nominated, two directors to Biomets and LVBs Board of Directors and also is entitled to appoint one non-voting observer to the Board of Directors for so long as such Sponsor remains a member of Holding. In addition to their right to appoint non-voting observers to the Board of Directors, certain of the Sponsor Funds have certain other management rights to the extent that any such Sponsor Fund is required to operate as a venture capital operating company as defined in the regulations issued by the U.S. Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the Code of Federal Regulations, or any successor regulations. Each Sponsors right to nominate directors is freely assignable to funds affiliated with such Sponsor, and is assignable to non-affiliates of such Sponsor only if the assigning Sponsor transfers its entire interest in Holding not previously transferred and only with the prior written consent of the Sponsors holding at least 70% of the membership interests in Holding, or requisite Sponsor consent. In addition to their rights under the LLC Agreement, the Sponsors may also appoint one or more persons unaffiliated with any of the Sponsors to the Board of Directors. Following Purchasers purchase of the Shares tendered in the Offer, the Sponsors jointly appointed Dane A. Miller, Ph.D. and Jeffrey R. Binder to the Board of Directors in addition to the two directors appointed by each of the Sponsors.
Pursuant to the LLC Agreement, each director has one vote for purposes of any Board of Directors action, and all decisions of the Board of Directors require the approval of a majority of the directors designated by the Sponsors. In addition, the LLC Agreement provides that certain major decisions regarding the Company or its parent companies require the requisite Sponsor consent.
The LLC Agreement includes certain customary agreements with respect to restrictions on the issuance or transfer of interests in Biomet and LVB, including preemptive rights, tag-along rights and drag-along rights.
The Co-Investors have also been admitted as members of Holding, both directly and through Sponsor-controlled investment vehicles. Although the Co-Investors are therefore parties to the LLC Agreement, they have no rights with respect to the election of Biomets or LVBs directors or the approval of its corporate actions.
The Sponsors have also caused Holding and Parent to enter into an agreement with the Company obligating the Company and Parent to take all actions necessary to give effect to the corporate governance, preemptive rights, transfer restriction and certain other provisions of the LLC Agreement, and prohibiting the Company and Parent from taking any actions that would be inconsistent with such provisions of the LLC Agreement.
Registration Rights Agreement
The Sponsor Funds and the Co-Investors also entered into a registration rights agreement with Holding, LVB and Biomet upon the closing of the Transactions. Pursuant to this agreement, the Sponsor Funds have the power to cause Holding, LVB and Biomet to register their, the Co-Investors and certain other persons equity interests under the Securities Act and to maintain a shelf registration statement effective with respect to such interests. The agreement also entitles the Sponsor Funds and the Co-Investors to participate in any future registration of equity interests under the Securities Act that Holding, LVB or Biomet may undertake.
On August 8, 2012 and October 2, 2012, Goldman, Sachs & Co. and the other initial purchasers of the new senior notes and new senior subordinated notes entered into registration rights agreements with Biomet. Pursuant to these agreements, Biomet is obligated, for the sole benefit of Goldman, Sachs & Co. in connection with its market-making activities with respect to the new senior notes and new senior subordinated notes, to file a registration statement under the Securities Act in a form approved by Goldman, Sachs & Co. and to keep such registration statement continually effective for so long as Goldman, Sachs & Co. may be required to deliver a prospectus in connection with transactions in the existing senior notes and to supplement or make amendments to such registration statement as when required by the rules and regulations applicable to such registration statement.
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Note 16Related Parties, Continued.
Management Stockholders Agreements
On September 13, 2007 and November 6, 2007, Holding, LVB and the Sponsor Funds entered into stockholders agreements with certain of the Companys senior executives and other management stockholders. Pursuant to the terms of the LVB Acquisition, Inc. Management Equity Incentive Plan, LVB Acquisition, Inc. Restricted Stock Unit Plan and LVB Acquisition, Inc. 2012 Restricted Stock Unit Plan, participants who exercise their vested options or settle their vested RSUs are required to become parties to the agreement dated November 6, 2007. The stockholder agreements contain agreements among the parties with respect to restrictions on the transfer and issuance of shares, including preemptive, drag-along, tag-along, and call/put rights.
Consulting Agreements
On January 14, 2010, Biomet entered into a consulting agreement with Dr. Dane A. Miller Ph.D., pursuant to which it will pay Dr. Miller a consulting fee of $0.25 million per fiscal year for Dr. Millers consulting services and will reimburse Dr. Miller for out-of-pocket fees and expenses relating to an off-site office and administrative support in an amount of $0.1 million per year. The term of the agreement extends through the earlier of September 1, 2011, an initial public offering or a change of control. The agreement also contains certain restrictive covenants prohibiting Dr. Miller from competing with the Company and soliciting employees of the Company during the term of the agreement and for a period of one year following such term. On September 6, 2011, the Company entered into an amendment to the consulting agreement with Dr. Miller, pursuant to which it agreed to increase the expenses relating to an off-site office and administrative support from $0.1 million per year to $0.15 million per year and extend the term of the agreement through the earlier of September 1, 2013, an initial public offering or a change of control. Dr. Miller received payments under the consulting agreement of $0.1 million and $0.1 million for the three months ended November 30, 2012 and 2011, respectively, and $0.2 million and $0.2 million for the six months ended November 30, 2012 and 2011, respectively.
Indemnification Priority Agreement
On January 11, 2010, Biomet and LVB entered into an indemnification priority agreement with the Sponsors (or certain affiliates designated by the Sponsors) pursuant to which Biomet and LVB clarified certain matters regarding the existing indemnification and advancement of expenses rights provided by Biomet and LVB pursuant to their respective charters and the management services agreement described above. In particular, pursuant to the terms of the indemnification agreement, Biomet acknowledged that as among Biomet, LVB and the Sponsors and their respective affiliates, the obligation to indemnify or advance expenses to any director appointed by any of the Sponsors will be payable in the following priority: Biomet will be the primary source of indemnification and advancement; LVB will be the secondary source of indemnification and advancement; and any obligation of a Sponsor-affiliated indemnitor to indemnify or advance expenses to such director will be tertiary to Biomets and, then, LVB obligations. In the event that either Biomet or LVB fails to indemnify or advance expenses to any such director in contravention of its obligations, and any Sponsor-affiliated indemnitor makes any indemnification payment or advancement of expenses to such director on account of such unpaid liability, such Sponsor-affiliated indemnitor will be subrogated to the rights of such director under any such Biomet or LVB indemnification agreement.
Equity Healthcare
Effective January 1, 2009, Biomet entered into an employer health program agreement with Equity Healthcare LLC (Equity Healthcare). Equity Healthcare negotiates with providers of standard administrative services for health benefit plans as well as other related services for cost discounts and quality of service monitoring capability by Equity Healthcare. Because of the combined purchasing power of its client participants, Equity Healthcare is able to negotiate pricing terms for providers that are believed to be more favorable than the companies could obtain for themselves on an individual basis.
In consideration for Equity Healthcares provision of access to these favorable arrangements and its monitoring of the contracted third parties delivery of contracted services to the Company, the Company pays Equity Healthcare a fee of $2 per participating employee per month (PEPM Fee). As of August 31, 2012, the Company had approximately 3,200 employees enrolled in its health benefit plans in the United States.
Equity Healthcare may also receive a fee (Health Plan Fees) from one or more of the health plans with whom Equity Healthcare has contractual arrangements if the total number of employees joining such health plans from participating companies exceeds specified thresholds. If and when Equity Healthcare reaches the point at which the aggregate of its receipts from the PEPM Fee and the Health Plan Fees have covered all of its allocated costs, it will apply the incremental revenues derived from all such fees to (a) reduce the PEPM Fee otherwise payable by the Company; (b) avoid or reduce an increase in the PEPM Fee that might otherwise have occurred on contract renewal; or (c) arrange for additional services to the Company at no cost or reduced cost.
Equity Healthcare is an affiliate of Blackstone, with whom Michael Dal Bello and David McVeigh, members of the Companys Board of Directors, are affiliated and in which they may have an indirect pecuniary interest.
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Note 16Related Parties, Continued.
There were no payments made during the three and six months ended November 30, 2012 or 2011.
Core Trust Purchasing Group Participation Agreement
Effective May 1, 2007, Biomet entered into a 5-year participation agreement (Participation Agreement) with Core Trust Purchasing Group, a division of HealthTrust Purchasing Corporation (CPG), designating CPG as the Companys exclusive group purchasing organization for the purchase of certain products and services from third party vendors. Effective June 1, 2012, Biomet entered into an amendment to extend the term of the Participation Agreement with CPG. CPG secures from vendors pricing terms for goods and services that are believed to be more favorable than participants in the group purchasing organization could obtain for themselves on an individual basis. Under the participation agreement, the Company must purchase 80% of the requirements of its participating locations for core categories of specified products and services, from vendors participating in the group purchasing arrangement with CPG or CPG may terminate the contract. In connection with purchases by its participants (including the Company), CPG receives a commission from the vendors in respect of such purchases. The total amount of fees paid to CPG was $0.1 million and $0.1 million for the three months ended November 30, 2012 and 2011, respectively, and $0.1 million and $0.2 million for the six months ended November 30, 2012 and 2011, respectively.
Although CPG is not affiliated with Blackstone, in consideration for Blackstones facilitating Biomets participation in CPG and monitoring the services CPG provides to the Company, CPG remits a portion of the commissions received from vendors in respect of the Companys purchases under the Participation Agreement to an affiliate of Blackstone, with whom Michael Dal Bello and David McVeigh, members of the Companys Board of Directors, are affiliated and in which they may have an indirect pecuniary interest.
Refinancing Activities
Goldman Sachs served as a dealer manager for the refinancing activities explained in Note 7 Debt and received fees of $0.4 million and $0.5 million during the three and six months ended November 30, 2012, respectively, for their services. Goldman Sachs also received an underwriting discount of $2.3 million during the first quarter of fiscal year 2013 as one of the initial purchasers of the $1.0 billion aggregate principal amount note offering of 6.500% senior notes due 2020, an underwriting discount of $2.6 million during the second quarter of fiscal year 2013 as of one the initial purchasers of the $825.0 million aggregate principal amount note add-on offering to the 6.500% senior notes due 2020 and an underwriting discount of $2.5 million during the second quarter of fiscal year 2013 as one of the initial purchasers of the $800.0 million aggregate principal amount note offering of the 6.500% senior subordinated notes due 2020 described in Note 7 Debt.
Other
Biomet currently holds interest rate swaps with Goldman Sachs. As part of this relationship, the Company receives information from Goldman Sachs that allows it to perform a regression on the swaps as part of its required effectiveness testing on a quarterly basis.
Biomet, Inc. may from time to time, depending upon market conditions, seek to purchase debt securities issued by Biomet or its subsidiaries in open market or privately negotiated transactions or by other means. Biomet understands that its indirect controlling stockholders may from time to time also seek to purchase debt securities issued by the Company or its subsidiaries in open market or privately negotiated transactions or by other means.
The Company engaged Capstone Consulting LLC, a consulting company that works exclusively with KKR and its portfolio companies, to provide analysis for certain restructuring initiatives. The Company or its affiliates paid Capstone $1.7 million and $0.5 million during the three months ended November 30, 2012 and 2011, respectively, and $2.2 million and $1.1 million during the six months ended November 30, 2012 and 2011, respectively.
Capital Contributions and Share Repurchases
At the direction of LVB, Biomet funded the repurchase of common shares of its parent company of $0.1 million and $0.8 million during the three months ended November 30, 2012 and 2011, respectively, and $0.1 million and $1.1 million for the six months ended November 30, 2012 and 2011, respectively, from former employees pursuant to the LVB Acquisition, Inc. Management Stockholders Agreement. There were no additional contributions for the three and six months ended November 30, 2012 and 2011.
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Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations.
We design, manufacture and market a comprehensive range of both surgical and non-surgical products used primarily by orthopedic surgeons and other musculoskeletal medical specialists. Our corporate headquarters are located in Warsaw, Indiana and we have manufacturing and/or office facilities in more than 50 locations worldwide and distribute products in approximately 90 countries.
Executive Overview
Our net sales increased 9% for the three months ended November 30, 2012 to $790.1 million, compared to $725.1 million for the three months ended November 30, 2011, driven primarily by our acquisition of DePuys worldwide trauma business (the Trauma Acquisition) as described below. The effect of foreign currency fluctuations negatively impacted reported net sales for the three months ended November 30, 2012 by $11.8 million, with Europe reported net sales negatively impacted by $10.3 million, or 6%, and International reported net sales negatively impacted by $1.4 million, or 1%. The following represents key sales growth statistics for the three months ended November 30, 2012 compared to the three months ended November 30, 2011:
| Large Joint Reconstructive product sales increased 1% worldwide and increased 2% in the U.S. |
| Sports, Extremities and Trauma (S.E.T.) product sales increased 74% worldwide and 65% in the U.S. Excluding the Trauma Acquisition, S.E.T. sales increased 14% worldwide and 15% in the U.S. Trauma Acquisition sales of $52.7 million were excluded in order to provide period-over-period comparability. |
| Spine & Bone Healing product sales decreased 1% worldwide and were flat in the U.S. |
| Dental product sales decreased 9% worldwide and increased 4% in the U.S. |
| Other product sales increased 6% worldwide and increased 2% in the U.S. |
On May 24, 2012, DePuy Orthopaedics, Inc. accepted our binding offer to purchase certain assets representing substantially all of DePuys worldwide trauma business, which involves researching, developing, manufacturing, marketing, distributing and selling products to treat certain bone fractures or deformities in the human body. On June 15, 2012, the Company announced the initial closing of the transaction. During the first and second quarters of fiscal year 2013 subsequent closings in various foreign countries occurred on a staggered basis, with the final closing occurring on December 7, 2012.
We have been active in the capital markets during the first and second quarters of fiscal year 2013. Our objectives included reducing market risk by extending the maturity on the majority of our term loans from March 2015 to July 2017, reducing the cost of our capital structure and retaining access to liquidity through the refinancing of our cash flow and asset-based revolvers.
Opportunities and Challenges
Our results of operations could be substantially affected not only by global economic conditions, but also by local operating and economic conditions, which can vary substantially by market. Unfavorable conditions can depress sales in a given market and may result in actions that adversely affect our margins, constrain our operating flexibility or result in charges which are unusual or non-recurring. Certain macroeconomic events, such as the current adverse conditions in the global economy, could have a more wide-ranging and prolonged impact on the general business environment, which could also adversely affect us.
In the United States, healthcare providers that purchase our products (e.g., hospitals, physicians, dentists and other health care providers) generally rely on payments from third-party payors (principally federal Medicare, state Medicaid and private health insurance plans) to cover all or a portion of the cost of our musculoskeletal products. In March 2010, comprehensive health care reform legislation was enacted through the Patient Protection and Affordable Health Care Act (H.R. 3590) and the Health Care and Education Reconciliation Act (H.R. 4872). Among other initiatives, these bills impose a 2.3% excise tax on domestic sales of medical devices following December 31, 2012, which is estimated to contribute approximately $20 billion to healthcare reform. Various healthcare reform proposals have also emerged at the state level. Except for the excise tax, which will impact results of operations following December 31, 2012, we cannot predict with certainty what healthcare initiatives, if any, will be implemented at the state level, or what the ultimate effect of federal health care reform or any future legislation or regulation will have on us. However, an expansion in governments role in the U.S. healthcare industry may lower reimbursements for our products, reduce medical procedure volumes and adversely affect our business and results of operations, possibly materially.
Outside the United States, reimbursement systems vary significantly from country to country. If adequate levels of reimbursement from third-party payors outside the United States are not obtained, international sales of our products may decline. Many foreign markets, including Canada and some European and Asian countries, have decreased reimbursement rates. Our ability to continue to sell certain products profitably in these markets may diminish if the government-managed healthcare systems continue to reduce reimbursement rates, which can decrease pricing and procedural volume.
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European Sovereign Debt Crisis
We continue to monitor economic conditions, including the volatility associated with international sovereign economies, and associated impacts on the financial markets and our business, especially in light of the global economic downturn and European sovereign debt crisis. We believe the credit and economic conditions within Greece, Ireland, Italy, Portugal and Spain, among other European Union countries, have continued to deteriorate. These conditions have resulted in, and may continue to result in, an increase in the average length of time that it takes to collect on our accounts receivable outstanding in these countries. As of November 30, 2012, our orthopedic net accounts receivable in these five countries totaled over $70.0 million. We currently hold Greek bonds that had a fair value of $8.6 million at November 30, 2012. Further, there have been widely publicized concerns with respect to the overall stability of the Euro as a single currency, given the economic and political challenges facing the Eurozone countries described above. The collapse of the Euro as a common European currency, the withdrawal of one or more member countries from the EU or continuing deterioration in the creditworthiness of the Eurozone countries could adversely affect our revenues, financial condition or results of operations.
Seasonality
Our business is somewhat seasonal in nature, as many of our products are used in elective procedures, which typically decline during the summer months, particularly in European countries, and the winter holiday season.
Products
Our product portfolio encompasses large joint reconstructive, S.E.T., spine & bone healing, dental and other products.
Large Joint Reconstructive Products Orthopedic reconstructive implants are used to replace joints that have deteriorated as a result of disease (principally osteoarthritis) or injury. Reconstructive joint surgery involves the modification of the area surrounding the affected joint and the implantation of one or more manufactured components, and may involve the use of bone cement. Our large orthopedic reconstructive joints are knees and hips. We also produce bone cements and cement delivery systems.
S.E.T. We manufacture and distribute a number of sports medicine products (used in minimally-invasive orthopedic surgical procedures). Extremity reconstructive implants are used to replace joints other than hips and knees that have deteriorated as a result of disease or injury. Our key reconstructive joint in this product category is the shoulder, but we produce other joints as well. Trauma devices are used for setting and stabilizing bone fractures to support and/or augment the bodys natural healing process. Trauma products include plates, screws, nails, pins and wires designed to internally stabilize fractures; devices utilized to externally stabilize fractures when alternative methods of fixation are not suitable; and implantable bone growth stimulation devices for trauma.
Spine & Bone Healing Products Our spine products include spinal fixation systems for cervical, thoracolumbar, deformity correction and spacer applications; electrical stimulation devices for spinal applications; and osteobiologics, including bone substitute materials, as well as allograft services for spinal applications. Bone healing products include non-invasive bone growth stimulation devices used for trauma indications and orthopedic support products (also referred to as bracing products).
Dental Products Dental reconstructive devices and associated instrumentation are used for oral rehabilitation through the replacement of teeth and repair of hard and soft tissues. We also offer crown and bridge products.
Other Products We manufacture and distribute a number of other products, including microfixation products, autologous therapies, operating room supplies, casting materials, general surgical instruments, wound care products and other surgical products.
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Results of Operations
For the Three Months Ended November 30, 2012 Compared to the Three Months Ended November 30, 2011
(in millions, except percentages) | Three Months Ended November 30, 2012 |
Percentage of Net Sales |
Three Months Ended November 30, 2011 |
Percentage of Net Sales |
Percentage Increase/ (Decrease) |
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Net sales |
$ | 790.1 | 100 | % | $ | 725.1 | 100 | % | 9 | % | ||||||||||
Cost of sales |
236.0 | 30 | 234.9 | 32 | | |||||||||||||||
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Gross profit |
554.1 | 70 | 490.2 | 68 | 13 | |||||||||||||||
Selling, general and administrative expense |
296.8 | 38 | 270.9 | 37 | 10 | |||||||||||||||
Research and development expense |
36.4 | 5 | 31.1 | 4 | 17 | |||||||||||||||
Amortization |
77.7 | 10 | 84.4 | 12 | (8 | ) | ||||||||||||||
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Operating income |
143.2 | 18 | 103.8 | 14 | 38 | |||||||||||||||
Interest expense |
104.9 | 13 | 120.8 | 17 | (13 | ) | ||||||||||||||
Other (income) expense |
124.0 | 16 | 4.9 | 1 | 2,431 | |||||||||||||||
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Other expense, net |
228.9 | 29 | 125.7 | 17 | 82 | |||||||||||||||
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Loss before income taxes |
(85.7 | ) | (11 | ) | (21.9 | ) | (3 | ) | 291 | |||||||||||
Provison (benefit) from income taxes |
(19.5 | ) | (2 | ) | (7.9 | ) | (1 | ) | 147 | |||||||||||
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Net loss |
$ | (66.2 | ) | (8 | )% | $ | (14.0 | ) | (2 | )% | 373 | % | ||||||||
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Sales
Net sales were $790.1 million for the three months ended November 30, 2012, and $725.1 million for the three months ended November 30, 2011. The primary driver for the increase in sales was the Trauma Acquisition. The following tables provide net sales by geography and product category:
Geography Sales Summary
(in millions, except percentages) | Three Months Ended November 30, 2012 |
Percentage of Net Sales |
Three Months Ended November 30, 2011 |
Percentage of Net Sales |
Percentage Increase/ (Decrease) |
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United States |
$ | 470.8 | 60 | % | $ | 426.3 | 59 | % | 10 | % | ||||||||||
Europe |
193.9 | 25 | 195.1 | 27 | (1 | ) | ||||||||||||||
International (1) |
125.4 | 15 | 103.7 | 14 | 21 | |||||||||||||||
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Total |
$ | 790.1 | 100 | % | $ | 725.1 | 100 | % | 9 | % | ||||||||||
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(1) | International primarily includes Canada, South America, Mexico and the Asia Pacific region. |
Product Category Summary
(in millions, except percentages) | Three Months Ended November 30, 2012 |
Percentage of Net Sales |
Three Months Ended November 30, 2011(1) |
Percentage of Net Sales |
Percentage Increase/ (Decrease) |
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Large Joint Reconstructive |
$ | 444.2 | 56 | % | $ | 439.5 | 61 | % | 1 | % | ||||||||||
Sports, Extremities, Trauma (S.E.T.) |
152.2 | 19 | 87.3 | 12 | 74 | |||||||||||||||
Spine & Bone Healing |
74.3 | 9 | 75.4 | 11 | (1 | ) | ||||||||||||||
Dental |
67.1 | 8 | 73.6 | 10 | (9 | ) | ||||||||||||||
Other |
52.3 | 8 | 49.3 | 6 | 6 | |||||||||||||||
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Total |
$ | 790.1 | 100 | % | $ | 725.1 | 100 | % | 9 | % | ||||||||||
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(1) | Certain amounts have been adjusted to conform to the current presentation. The current presentation aligns with how we presently manage and market our products. |
Large Joint Reconstructive
Net sales of large joint reconstructive products for the three months ended November 30, 2012 was $444.2 million, or 56% of net sales, representing a 1% increase compared to net sales of $439.5 million, or 61% of net sales, during the three months ended November 30, 2011. Unfavorable foreign currency translation impacted our large joint reconstructive sales by $7.6 million during the quarter.
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Knee product sales increased 1% both worldwide and in the United States during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. Unfavorable foreign currency translation impacted our knee sales during the quarter. Sales growth for our Vanguard® Complete Knee System, Vanguard® SSK 360 Revision System, the Signature Personalized Patient Care System, E1® Vitamin E infused bearings and OSS (Orthopaedic Salvage System), contributed to our knee sales during the second quarter of fiscal year 2013. Procedure volume growth and positive mix during the quarter were partially offset by price pressures.
Hip product sales increased 1% worldwide and 2% in the United States during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. Unfavorable foreign currency translation during the quarter impacted our hip sales. We continued to see strong market demand for our Arcos® Modular Femoral Revision System and our new Taperloc® Complete Hip Stem. In addition, the Microplasty® version of the Taperloc® Complete Hip Stem and the (GTS) Global Tissue Sparing short stem received strong market acceptance during the quarter. Key acetabular products included the Ringloc® + cup, E1® and ArCom XL® bearings, as well as our Active Articulation Systems that are available with E1® or ArCom XL® liners. In Europe, our Exceed ABT (Advanced Bearing Technologies) System continued to receive strong market demand. Procedure volume growth and positive mix during the quarter were partially offset by price pressures.
Sales of bone cement and other reconstructive products increased 2% worldwide and 4% in the United States during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. During the quarter, unfavorable foreign currency translation impacted sales. Demand for our Cobalt HV (High Viscosity) cement with Gentamicin contributed to our sales growth in this category. The Optipac® Pre-Packed Cement Mixing System continued to be well received in the Europe market during the quarter. Additional key cement products during the quarter included the StageOne Knee and Modular Hip Cement Spacer Molds.
S.E.T.
Worldwide net sales of S.E.T. products for the three months ended November 30, 2012 was $152.2 million, or 19% of net sales, representing a 74% increase compared to net sales of $87.3 million, or 12% of net sales, during the three months ended November 30, 2011. S.E.T. sales, excluding the Trauma Acquisition, increased 14% worldwide and 15% in the U.S. Trauma Acquisition sales of $52.7 million were excluded in order to provide period-over-period comparability. Unfavorable foreign currency translation impacted our S.E.T. sales during the quarter by $1.8 million.
Sports medicine sales increased 14% worldwide, with a 3% sales increase in the United States, during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. The sales increase was driven by strong demand for our JuggerKnot brand, which includes soft anchors to repair the shoulder, hand and wrist, and foot and ankle. Additional products contributing to the sales growth were the TunneLoc® Tibial Fixation Device, the ToggleLoc Femoral Fixation Device, both with and without ZipLoop Technology, as well as the Repicci II® Resurfacing Knee System.
Extremity product sales increased 22% worldwide, with a 32% sales increase in the United States, during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. The increase was driven by strong market demand for our Comprehensive® product lines including Primary, Reverse and our S.R.S. (Segmental Revision System) Shoulder Systems.
Trauma product sales increased 268% worldwide and 247% in the United States during the three months ended November 30, 2012, compared to the three months ended November 30, 2011, driven by $52.7 million of sales related to the Trauma Acquisition. Trauma sales, excluding the Trauma Acquisition, were flat worldwide and decreased 1% in the U.S. Key products acquired as a result of the Trauma Acquisition include the DVR® Anatomic Volar Plating Systems, the A.L.P.S. Plating Systems, and the AFFIXUS® Hip Fracture Nails.
Spine & Bone Healing
Worldwide net sales of spine & bone healing products for the three months ended November 30, 2012 was $74.3 million, or 9% of net sales, representing a 1% decrease compared to net sales of $75.4 million, or 11% of net sales, for the three months ended November 30, 2011. Spine & Bone Healing sales decreased worldwide primarily due to mid-single-digit price erosion, soft volumes due to the general economy, a challenging reimbursement environment for some fusion procedures and a trend toward physician-owned distributorships, which were partially offset by increased royalty revenue.
Spine product sales increased 4% worldwide and 7% in the United States during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. The sales increase was primarily due to increased royalty revenue.
Sales of bone healing products decreased 15% both worldwide and in the United States during the three months ended November 30, 2012, compared to the three months ended November 30, 2011. The need for additional clinical and economic data to support reimbursement continued to challenge the non-invasive stimulation business and price pressure continued to impact our bracing business during the quarter.
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Dental
Worldwide net sales of dental products for the three months ended November 30, 2012 was $67.1 million, or 8% of net sales, representing a 9% decrease compared to net sales of $73.6 million, or 10% of net sales, during the three months ended November 30, 2011. Unfavorable foreign currency translation impacted our dental sales during the quarter by $1.5 million. While the U.S. dental market has been stronger than the market in Europe, there was continued softness worldwide as challenging economic conditions persisted. Dental sales were negatively impacted by unfavorable media reports in Japan related to the dental implant industry.
Other
Worldwide net sales of other products for the three months ended November 30, 2012 was $52.3 million, or 8% of net sales, representing a 6% increase compared to net sales of $49.3 million, or 6% of net sales, during the three months ended November 30, 2011. Our microfixation product sales were strong during the quarter, driven by continued market demand for the TraumaOne Plating System and the SternaLock® Blu Primary Closure System, as well as the Pectus Bar product line. Our microfixation sales growth was partially offset by a decrease in sales of autologous therapies.
Gross Profit
Gross profit for the three months ended November 30, 2012 increased to $554.1 million, compared to gross profit for the three months ended November 30, 2011 of $490.2 million, or 70% and 68% of net sales, respectively. Gross profit as a percentage of net sales was slightly favorable for the three months ended November 30, 2012 due to lower manufacturing costs related to operational improvement initiatives, royalty costs related to expired contracts and country mix, partially offset by decreased selling prices.
Selling, General and Administrative Expense
Selling, general and administrative expense during the three months ended November 30, 2012 was $296.8 million, compared to $270.9 million for the three months ended November 30, 2011, or 38% and 37% of net sales, respectively. The expense was slightly up as a percentage of net sales due to increased sales force expense related to the Trauma Acquisition.
Research and Development Expense
Research and development expense during the three months ended November 30, 2012 was $36.4 million, compared to $31.1 million for the three months ended November 30, 2011, or 5% and 4% of net sales, respectively. Our principal research and development efforts relate to primary and revision orthopedic reconstructive devices, spinal fixation products, dental reconstructive devices, sports medicine products, trauma products, resorbable technology, biomaterial products and autologous therapies.
Amortization
Amortization expense for the three months ended November 30, 2012 was $77.7 million, or 10% of net sales, compared to $84.4 million for the three months ended November 30, 2011, or 12% of net sales. This decrease is primarily due to the intangible asset impairment charge taken in the fourth quarter of fiscal year 2012 related to our Dental and Spine & Bone Healing reporting units.
Interest Expense
Interest expense was $104.9 million for the three months ended November 30, 2012, compared to interest expense of $120.8 million for the three months ended November 30, 2011. The decrease in interest expense was primarily due to lower average interest rates on our term loans and lower bond interest as a result of refinancing activities in fiscal year 2013.
Other (Income) Expense
Other (income) expense was expense of $124.0 million for the three months ended November 30, 2012, compared to expense of $4.9 million for the three months ended November 30, 2011. The expense for the three months ended November 30, 2012 is primarily composed of the loss on retirement of bonds of $117.2 million and the write-off of deferred financing fees related to the tender/retirement of the senior notes due 2017 of $9.6 million, while the three months ended November 30, 2011 included an other-than-temporary impairment loss of $7.3 million related to the Greek bonds.
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Provision (Benefit) from Income Taxes
The effective income tax rate was 22.8% for the three months ended November 30, 2012 compared to 36.1% for the three months ended November 30, 2011. The primary factor in determining the effective tax rate is the mix of various jurisdictions in which profits are projected to be earned and taxed. The effective income tax rate for the three months ended November 30, 2012 is lower than the effective income tax rate for the three months ended November 30, 2011 primarily due to differences in assertions regarding the expected repatriation of earnings of our foreign operations. Fluctuations in effective tax rates between comparable periods also reflect the discrete tax benefit or expense of items in continuing operations that represent tax affects not attributable to current-year ordinary income. Discrete items, consisting primarily of the tax benefit associated with the reduction of net deferred tax liabilities due to the prospective reduction of corporate tax rates in Japan, had the effect of increasing the income tax benefit by $7.0 million in the three months ended November 30, 2011.
For the Six Months Ended November 30, 2012 Compared to the Six Months Ended November 30, 2011
(in millions, except percentages) | Six Months Ended November 30, 2012 |
Percentage of Net Sales |
Six Months Ended November 30, 2011 |
Percentage of Net Sales |
Percentage Increase/ (Decrease) |
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Net sales |
$ | 1,497.5 | 100 | % | $ | 1,389.7 | 100 | % | 8 | % | ||||||||||
Cost of sales |
464.1 | 31 | 450.2 | 32 | 3 | |||||||||||||||
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Gross profit |
1,033.4 | 69 | 939.5 | 68 | 10 | |||||||||||||||
Selling, general and administrative expense |
592.9 | 40 | 532.5 | 38 | 11 | |||||||||||||||
Research and development expense |
72.2 | 5 | 63.1 | 5 | 14 | |||||||||||||||
Amortization |
156.1 | 10 | 167.4 | 12 | (7 | ) | ||||||||||||||
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Operating income |
212.2 | 14 | 176.5 | 13 | 20 | |||||||||||||||
Interest expense |
222.0 | 15 | 246.2 | 18 | (10 | ) | ||||||||||||||
Other (income) expense |
161.5 | 11 | 12.1 | 1 | 1,235 | |||||||||||||||
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Other expense, net |
383.5 | 26 | 258.3 | 19 | 48 | |||||||||||||||
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Loss before income taxes |
(171.3 | ) | (11 | ) | (81.8 | ) | (6 | ) | 109 | |||||||||||
Provison (benefit) from income taxes |
(73.6 | ) | (5 | ) | (28.6 | ) | (2 | ) | 157 | |||||||||||
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Net loss |
$ | (97.7 | ) | (7 | )% | $ | (53.2 | ) | (4 | )% | 84 | % | ||||||||
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Sales
Net sales were $1,497.5 million for the six months ended November 30, 2012, and $1,389.7 million for the six months ended November 30, 2011. The primary driver for the increase in sales was the Trauma Acquisition. The following tables provide net sales by geography and product category:
Geography Sales Summary
(in millions, except percentages) | Six Months Ended November 30, 2012 |
Percentage of Net Sales |
Six Months Ended November 30, 2011 |
Percentage of Net Sales |
Percentage Increase/ (Decrease) |
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United States |
$ | 923.0 | 62 | % | $ | 841.0 | 61 | % | 10 | % | ||||||||||
Europe |
336.8 | 22 | 343.6 | 25 | (2 | ) | ||||||||||||||
International (1) |
237.7 | 16 | 205.1 | 14 | 16 | |||||||||||||||
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Total |
$ | 1,497.5 | 100 | % | $ | 1,389.7 | 100 | % | 8 | % | ||||||||||
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(1) | International primarily includes Canada, South America, Mexico and the Asia Pacific region. |
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Product Category Summary
(in millions, except percentages) | Six Months Ended November 30, 2012 |
Percentage of Net Sales |
Six Months Ended November 30, 2011(1) |
Percentage of Net Sales |
Percentage Increase/ (Decrease) |
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Large Joint Reconstructive |
$ | 837.2 | 56 | % | $ | 836.5 | 60 | % | | % | ||||||||||
Sports, Extremities, Trauma (S.E.T.) |
279.5 | 19 | 169.1 | 12 | 65 | |||||||||||||||
Spine & Bone Healing |
152.2 | 10 | 150.0 | 11 | 1 | |||||||||||||||
Dental |
124.1 | 8 | 132.9 | 10 | (7 | ) | ||||||||||||||
Other |
104.5 | 7 | 101.2 | 7 | 3 | |||||||||||||||
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Total |
$ | 1,497.5 | 100 | % | $ | 1,389.7 | 100 | % | 8 | % | ||||||||||
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(1) | Certain amounts have been adjusted to conform to the current presentation. The current presentation aligns with how we presently manage and market our products. |
We were affected by large unfavorable currency fluctuations during the first quarter of fiscal year 2013 as compared to the first quarter of fiscal year 2012.
Large Joint Reconstructive
Net sales of large joint reconstructive products for the six months ended November 30, 2012 was $837.2 million, or 56% of net sales, compared to net sales of $836.5 million, or 60% of net sales, during the six months ended November 30, 2011. Unfavorable foreign currency translation impacted our large joint reconstructive product sales during the six month period by $21.1 million.
Knee product sales were flat worldwide and increased 1% in the United States during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. Unfavorable foreign currency translation impacted our knee sales. Sales growth for our Vanguard® SSK 360 Revision System, the Signature Personalized Patient Care System, E1® Vitamin E infused bearings and the OSS (Orthopaedic Salvage System) contributed to our knee sales during the first and second quarters of fiscal year 2013. Procedure volume growth and positive mix were partially offset by price pressures.
Hip product sales were flat worldwide and increased 2% in the United States during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. Unfavorable foreign currency translation impacted our hip sales. We continued to see strong market demand for our Arcos® Modular Femoral Revision System and our new Taperloc® Complete Hip Stem. In addition, the Microplasty® version of the Taperloc® Complete Hip Stem and the GTS (Global Tissue Sparing) short stem received strong market acceptance during the first and second quarters. Key acetabular products included the Ringloc®+ cup, E1® and ArCom XL® bearings, as well as our Active Articulation Systems that are available with E1® or ArCom XL® liners. In Europe, our Exceed ABT (Advanced Bearing Technologies) System continued to receive strong market demand during the first and second quarter of fiscal year 2013. Procedure volume growth and positive mix were partially offset by price pressures.
Sales of bone cement and other reconstructive products were flat worldwide and increased 5% in the United States during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. Demand for our Cobalt MV (Medium Viscosity) and HV (High Viscosity) cements with Gentamicin contributed to our sales in this category. The Optipac® Pre-Packed Cement Mixing System continued to be well received in the European market during the first and second quarter of fiscal year 2013. Demand for our StageOne Knee and Modular Hip Cement Spacer Molds continued to increase.
S.E.T.
Worldwide net sales of S.E.T. products for the six months ended November 30, 2012 was $279.5 million, or 19% of net sales, representing a 65% increase compared to net sales of $169.1 million, or 12% of net sales, during the six months ended November 30, 2011. S.E.T. sales, excluding the Trauma Acquisition, increased 11% worldwide and 13% in the U.S. Trauma Acquisition sales of $91.5 million were excluded in order to provide period-over-period comparability. Unfavorable foreign currency translation impacted our S.E.T. sales by $4.6 million.
Sports medicine sales increased 12% worldwide, with a 5% sales increase in the United States, during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. The sales increase was primarily driven by strong demand for our JuggerKnot brand, which includes soft anchors to repair the shoulder, hand and wrist, and foot and ankle. Additional key products contributing to the sales growth were the TunneLoc® Tibial Fixation Device and the ToggleLoc Femoral Fixation Device, both with and without ZipLoop Technology and the Repicci II® Resurfacing Knee System.
Extremity product sales increased 18% worldwide, with a 26% sales increase in the United States, during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. The increase was driven by strong market demand for our Comprehensive® product lines including Primary, Reverse and our S.R.S. (Segmental Revision System) Shoulder Systems.
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Trauma product sales increased 230% worldwide and 218% in the United States, during the six months ended November 30, 2012, compared to the six months ended November 30, 2011, driven by $91.5 million of sales related to the Trauma Acquisition. Trauma sales, excluding the Trauma Acquisition, decreased 1% worldwide and were flat in the U.S. Key products acquired as a result of the Trauma Acquisition include the DVR® Anatomic Volar Plating Systems, the A.L.P.S. Plating Systems, and the AFFIXUS® Hip Fracture Nails.
Spine & Bone Healing
Worldwide net sales of spine & bone healing products for the six months ended November 30, 2012 was $152.2 million, or 10% of net sales, representing a 1% increase compared to net sales of $150.0 million, or 11% of net sales, for the six months ended November 30, 2011. Spine & Bone Healing sales increased primarily due to increased royalty revenue, which was partially offset by mid-single-digit price erosion, soft volumes due to the general economy, a challenging reimbursement environment for some fusion procedures and a trend toward physician-owned distributorships.
Spine product sales increased 7% worldwide and 9% in the United States during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. Price declines in spine hardware continue to be in the mid-single digit range. Spine product sales increased during the six month period, primarily due to increased royalty revenue. New products and services that contributed to growth during the first and second quarter of fiscal year 2013 included the PlatFORM CM, an all natural, osteoconductive material; and Cellentra VCBM (Viable Cell Bone Matrix), an allogenic stem cell offering.
Sales of bone healing products decreased 12% both worldwide and in the United States during the six months ended November 30, 2012, compared to the six months ended November 30, 2011. The need for additional clinical and economic data to support reimbursement continued to challenge the non-invasive stimulation business and price pressure continued to impact our bracing business.
Dental
Worldwide net sales of dental products for the six months ended November 30, 2012 was $124.1 million, or 8% of net sales, representing a 7% decrease compared to net sales of $132.9 million, or 10% of net sales, during the six months ended November 30, 2011. Unfavorable foreign currency translation impacted our dental sales by $4.4 million. While the U.S. dental market has been stronger than the market in Europe, there was continued softness worldwide as challenging economic conditions persisted. Dental sales were negatively impacted by unfavorable media reports in Japan related to the dental implant industry.
Other
Worldwide net sales of other products for the six months ended November 30, 2012 was $104.5 million, or 7% of net sales, representing a 3% increase compared to net sales of $101.2 million, also 7% of net sales, during the six months ended November 30, 2011. Our microfixation product sales continued to be strong, driven by continued market acceptance of the iQ® Intelligent Delivery System, the TraumaOne Plating System and the SternaLock® Blu Primary Closure System, as well as the Pectus Bar product line. Our microfixation sales growth was partially offset by a decrease in sales of autologous therapies.
Gross Profit
Gross profit for the six months ended November 30, 2012 increased to $1,033.4 million, compared to gross profit for the six months ended November 30, 2011 of $939.5 million, or 69% and 68% of net sales, respectively. Gross profit as a percentage of net sales was slightly favorable for the six months ended November 30, 2012 due to lower manufacturing costs related to operational improvement initiatives, royalty costs related to expired contracts and country mix, partially offset by decreased selling prices.
Selling, General and Administrative Expense
Selling, general and administrative expense during the six months ended November 30, 2012 was $592.9 million, compared to $532.5 million for the six months ended November 30, 2011, or 40% and 38% of net sales, respectively. The expense was slightly up as a percentage of net sales due to a $9.5 million catch-up expense of stock based compensation expense related to the modification of our existing stock based compensation plan and increased sales force expense related to the Trauma Acquisition.
Research and Development Expense
Research and development expense during the six months ended November 30, 2012 was $72.2 million, compared to $63.1 million for the six months ended November 30, 2011, or 5% of net sales for both periods. Our principal research and development efforts relate to primary and revision orthopedic reconstructive devices, spinal fixation products, dental reconstructive devices, sports medicine products, resorbable technology, biomaterial products and autologous therapies.
40
Amortization
Amortization expense for the six months ended November 30, 2012 was $156.1 million or 10% of net sales, compared to $167.4 million for the six months ended November 30, 2011, or 12% of net sales. This decrease is primarily due to the intangible asset impairment charge taken in the fourth quarter of fiscal 2012 related to our Dental and Spine & Bone Healing reporting units.
Interest Expense
Interest expense was $222.0 million for the six months ended November 30, 2012, compared to interest expense of $246.2 million for the six months ended November 30, 2011. The decrease in interest expense was primarily due to lower average interest rates on our term loans and lower bond interest as a result of refinancing activities in fiscal year 2013.
Other (Income) Expense
Other (income) expense was expense of $161.5 million for the six months ended November 30, 2012, compared to expense of $12.1 million for the six months ended November 30, 2011. The expense for the six months ended November 30, 2012 is primarily composed of the loss on retirement of bonds of $155.2 million and the write off of deferred financing fees related to the tender/retirement of the senior notes due 2017 of $13.7 million, while the six months ended November 30, 2011 included an other-than-temporary impairment loss of $16.5 million related to the Greek bonds.
Provision (Benefit) from Income Taxes
The effective income tax rate was 43.0% for the six months ended November 30, 2012 compared to 35.0% for the six months ended November 30, 2011. The primary factor in determining the effective tax rate is the mix of various jurisdictions in which profits are projected to be earned and taxed. The effective income tax rate for the six months ended November 30, 2012 is higher than the effective income tax rate for the six months ended November 30, 2011 primarily due to differences in assertions regarding the expected repatriation of earnings of our foreign operations. Fluctuations in effective tax rates between comparable periods also reflect the discrete tax benefit or expense of items in continuing operations that represent tax affects not attributable to current-year ordinary income. Discrete items, consisting primarily of the tax benefit associated with the reduction of net deferred tax liabilities due to the prospective reduction of the United Kingdom statutory corporate tax rate enacted in July 2012 had the effect of increasing the income tax benefit by $3.6 million in the six months ended November 30, 2012. The tax benefit for the six months ended November 30, 2011 was increased by $11.1 million due to discrete items consisting primarily of the tax benefit associated with the reduction of net deferred tax liabilities due to the prospective reduction of corporate tax rates in Japan and the United Kingdom.
Liquidity and Capital Resources
Cash Flows
The following is a summary of the cash flows by activity for the six months ended November 30, 2012 and 2011:
(in millions) | Six Months Ended November 30, 2012 |
Six Months Ended November 30, 2011 |
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Net cash from (used in): |
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Operating activities |
$ | 128.6 | $ | 133.8 | ||||
Investing activities |
(409.3 | ) | (49.0 | ) | ||||
Financing activities |
(51.3 | ) | (19.9 | ) | ||||
Effect of exchange rate changes on cash |
7.1 | (8.8 | ) | |||||
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Change in cash and cash equivalents |
$ | (324.9 | ) | $ | 56.1 | |||
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For the Six Months Ended November 30, 2012 Compared to the Six Months Ended November 30, 2011
Our cash and cash equivalents were $167.5 million as of November 30, 2012 compared to $383.9 million as of November 30, 2011. We generally maintain our cash and cash equivalents and investments in money market funds, corporate bonds and debt instruments. Cash and cash equivalents held outside of the United States were $112.5 million as of November 30, 2012. If we were to repatriate this cash back to the United States, additional tax of up to 35%, the maximum federal tax rate, could be incurred. In addition, we require a certain amount of cash to support on-going operations outside the United States.
Operating Cash Flows
Net cash provided by operating activities was $128.6 million for the six months ended November 30, 2012, compared to $133.8 million for the six months ended November 30, 2011. Operating cash flows for the six months ended November 30, 2012 were unfavorably impacted by increased inventory levels due to additional inventory needs to the support new product introductions and the Trauma Acquisition and increased accounts receivable due to increased sales and seasonality, partially offset by lower cash paid for interest. Cash generated by operating activities continued to be a source of funds for deleveraging and investing in our growth.
41
Investing Cash Flows
Net cash used in investing activities was $409.3 million for the six months ended November 30, 2012 and $49.0 million for the six months ended November 30, 2011. The investing cash flow decrease period-over-period when comparing the six months ended November 30, 2012 to the six months ended November 30, 2011 was primarily due to the Trauma Acquisition purchase price of $280.0 million and capital expenditures increased by $25.7 million during the six months ended November 30, 2012. Additionally, during the six months ended November 30, 2011 we received proceeds from the sales/maturities of investments of $33.7 million primarily related to the sale of a time deposit and proceeds from the sale of property and equipment of $13.1 million.
Financing Cash Flows
Net cash used in financing activities was $51.3 million for the six months ended November 30, 2012, compared to cash used in financing activities of $19.9 million for the six months ended November 30, 2011. The difference was primarily related to the refinancing activities during the first and second quarters of fiscal year 2013. We received proceeds of $2,666.2 million related to the new 6.500% senior notes due 2020 and 6.500% senior subordinated notes due 2020 bond offerings and tendered or retired $2,702.2 million of senior notes due 2017. Additionally, related to the refinancing activities we incurred $67.8 million of fees. We drew down on our asset-based revolver during the second quarter of fiscal year 2013 in order to partially fund the refinancing activities which provided cash of $80.0 million, which partially offset the use of cash due to the refinancing activities. The refinancing activities were explained in Note 7, Debt, to the condensed consolidated financial statements contained in Item 1 of this report.
Balance Sheet Metrics
Cash flows from operations are impacted by profitability and changes in operating working capital. Management monitors operating working capital with particular focus on certain metrics, including days sales outstanding (DSO) and inventory turns. The following is a summary of our DSO and inventory turns.
November 30, 2012 | May 31, 2012 | |||||||
Days Sales Outstanding(1) |
65.2 | 62.5 | ||||||
Inventory Turns(2) |
1.47 | 1.59 |
(1) | DSO is calculated by dividing the year-over-year average accounts receivable balance by the last twelve months net sales multiplied by 365 days. |
(2) | Inventory turns are calculated by dividing the last twelve months cost of sales by the year-over-year average net inventory balance. |
We use DSO as a measure that places emphasis on how quickly we collect our accounts receivable balances from customers. The increase in DSOs is due to seasonality and increased sales in the last two quarters related to the Trauma Acquisition. We use inventory turns as a measure that places emphasis on how quickly we turn over our inventory. Inventory turns were slower at November 30, 2012 due to the integration of Trauma Acquisition inventory. These measures may not be computed the same as similarly titled measures used by other companies.
Non-GAAP Disclosures
We use certain non-GAAP financial measures to evaluate our performance using information that differs from what is required under GAAP. These non-GAAP financial measures may not be comparable to similar measures reported by other companies and should be considered in addition to, and not as a substitute for, or superior to, other measures prepared in accordance with GAAP.
The senior secured leverage ratio provides a measure of our financial ability to meet our debt service obligations. The ratio level determines the interest rate charged on our cash flow revolving credit facilities, and letters of credit fees. In addition to determining the current interest rate on our cash flow revolving credit facilities, the ratio is also used as a benchmark in our credit agreements to determine maximum levels of additional indebtedness we may incur. We believe the directional trend of this ratio provides valuable insight to understanding our operational performance and financial position with respect to our debt obligations.
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(in millions, except ratios) | November 30, 2012 | May 31, 2012 | ||||||
USD Term Loan |
$ | 2,223.3 | $ | 2,234.7 | ||||
EUR Term Loan |
1,078.0 | 1,039.6 | ||||||
Asset Based Revolver |
70.0 | | ||||||
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Consolidated Senior Secured Debt |
3,371.3 | 3,274.3 | ||||||
Cash and Cash Equivalents |
167.5 | 492.4 | ||||||
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Consolidated Senior Secured Debt Net of Cash and Cash Equivalents |
$ | 3,203.8 | $ | 2,781.9 | ||||
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LTM Adjusted EBITDA |
$ | 1,064.2 | (2) | $ | 1,031.1 | |||
Senior Secured Leverage Ratio(1) |
3.01 | 2.70 |
(1) | Our senior secured leverage ratio is defined by our credit agreement as total consolidated senior secured debt net of cash and cash equivalents, as defined by our credit agreement, divided by the total of the last twelve months, or LTM, Adjusted EBITDA. |
(2) | The LTM Adjusted EBITDA for November 30, 2012 includes six months of Adjusted EBITDA during fiscal year 2013 of $526.0 million, plus the last six months of Adjusted EBITDA from fiscal year 2012 of $538.2 million. |
The increase in the senior secured leverage ratio at November 30, 2012 as compared to May 31, 2012 is primarily due to the decrease in cash and cash equivalents, as defined by our credit agreement, and the increase in the debt, partially offset by the increase in LTM Adjusted EBITDA. The cash decrease and the debt increase were driven by the refinancing activities that were explained in Note 7, Debt, to the condensed consolidated financial statements contained in Item 1 of this report as well as the impact of the Trauma Acquisition.
We use Adjusted EBITDA, among other measures, to evaluate the performance of our core operations, establish operational goals and forecasts that are used in allocating resources and to evaluate our performance period-over-period, including for incentive program purposes. The term as adjusted, a non-GAAP financial measure, refers to financial performance measures that exclude certain income statement line items, such as interest, taxes, depreciation or amortization, other (income) expense and/or exclude certain expenses as defined by our credit agreement, such as restructuring charges, non-cash impairment charges, integration and facilities opening costs or other business optimization expenses, new systems design and implementation costs, certain start-up costs and costs related to consolidation of facilities, certain non-cash charges, advisory fees paid to the private equity owners, certain severance charges, purchase accounting costs, stock-based compensation, litigation costs, acquisition costs and other related charges.
Adjusted EBITDA for the three and six months ended November 30, 2012 and 2011, the six months ended May 31, 2012 and the year ended May 31, 2012 is calculated as follows:
(in millions) | Three Months Ended November 30, 2012 |
Three Months Ended November 30, 2011 |
Six Months Ended November 30, 2012 |
Six Months Ended November 30, 2011 |
Six Months Ended May 31, 2012(1) |
Year Ended May 31, 2012 |
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Operating income (loss) |
$ | 143.2 | $ | 103.8 | $ | 212.2 | $ | 176.5 | $ | (269.9 | ) | $ | (93.4 | ) | ||||||||||
Depreciation |
43.9 | 47.3 | 86.0 | 94.1 | 88.1 | 182.2 | ||||||||||||||||||
Amortization |
77.7 | 84.4 | 156.1 | 167.4 | 159.8 | 327.2 | ||||||||||||||||||
Special items adjustments: |
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Stock-based compensation expense(2) |
7.4 | 4.0 | 26.5 | 8.7 | 7.3 | 16.0 | ||||||||||||||||||
Litigation settlements and reserves and other legal fees(3) |
4.8 | 7.5 | 9.4 | 8.5 | 0.1 | 8.6 | ||||||||||||||||||
Trauma Acquisition(4) |
2.3 | | 9.2 | | 4.6 | 4.6 | ||||||||||||||||||
Operational restructuring and consulting expenses related to operational initiatives (severance, building impairments, abnormal manufacturing variances and other related costs)(5) |
5.4 | 16.5 | 12.2 | 32.9 | 12.9 | 45.8 | ||||||||||||||||||
Inventory step-up related to the Trauma Acquisition(4) |
0.7 | | 0.9 | | | | ||||||||||||||||||
Excess and obsolete inventory expense related to the Trauma Acquisition(6) |
| | 8.1 | | | | ||||||||||||||||||
Sponsor fee(7) |
2.8 | 2.8 | 5.4 | 4.8 | 5.5 | 10.3 | ||||||||||||||||||
Goodwill and intangible assets impairment charge(8) |
| | | | 529.8 | 529.8 | ||||||||||||||||||
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Adjusted EBITDA(9) |
$ | 288.2 | $ | 266.3 | $ | 526.0 | $ | 492.9 | $ | 538.2 | $ | 1,031.1 | ||||||||||||
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(1) | The six months ended May 31, 2012 shows the activity from December 1, 2011 to May 31, 2012. |
(2) | Stock-based compensation expense is excluded from non-GAAP financial measures primarily because it is a non-cash expense. We believe that excluding this item is useful to investors in that it facilitates comparisons to competitors operating results. |
(3) | We exclude certain litigation-related expenses and settlements from non-GAAP financial measures that are not reflective of our ongoing operational performance. We believe this information is useful to investors in that it provides period-over-period comparability. |
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(4) | We exclude acquisition-related expenses for the Trauma Acquisition from non-GAAP financial measures that are not reflective of our ongoing operational performance. We further believe this information is useful to investors in that it provides period-over-period comparability. |
(5) | Restructuring charges relate principally to employee severance and facility consolidation costs resulting from the closure of facilities and other workforce reductions attributable to our efforts to reduce costs. Operational restructuring charges also include abnormal manufacturing variances related to temporary redundant overhead costs within our plant network as we continue to rationalize and move production to our larger operating locations in order to increase manufacturing efficiency. We exclude these costs from non-GAAP financial measures primarily because they are not reflective of the ongoing operating results and they are not used by management to assess ongoing operational performance. We believe the exclusion of this information in the applicable non-GAAP financial measure is useful to investors in that it provides period-over-period comparability. |
(6) | We exclude expenses for excess and obsolete inventory charges related to the overlap of certain acquired DePuy trauma products with our current trauma products from non-GAAP financial measures that are not reflective of our ongoing operational performance. We further believe this information is useful to investors in that it provides period-over-period comparability. |
(7) | Upon completion of the Merger, we entered into a management services agreement with certain affiliates of the Sponsors, pursuant to which such affiliates of the Sponsors or their successors, assigns, affiliates, officers, employees, and/or representatives and third parties (collectively, the Managers) provide management, advisory, and consulting services to us. Pursuant to such agreement, the Managers received a transaction fee equal to 1% of total enterprise value of the Transactions for the services rendered by such entities related to the Transactions upon entering into the agreement, and the Sponsors receive an annual monitoring fee equal to 1% of our annual Adjusted EBITDA (as defined by our credit agreement) as compensation for the services rendered and reimbursement for out-of-pocket expenses incurred by the Managers in connection with the agreement and the Transactions. We exclude these costs from non-GAAP financial measures primarily because they are not reflective of the ongoing operating results and they are not used by management to assess ongoing operational performance. We further believe this information is useful to investors in that it provides period-over-period comparability. |
(8) | During fiscal 2012, we recorded a $529.8 million goodwill and definite and indefinite-lived intangible asset impairment charge primarily associated with our dental reconstructive and spine & bone healing reporting units. We exclude this non-cash charge from non-GAAP financial measures because it is not reflective of our ongoing operational performance or liquidity. We believe the exclusion of this information in the applicable non-GAAP financial measure is useful to investors in that it provides period-over-period comparability. |
(9) | As defined in our credit agreement. |
Adjusted EBITDA growth has historically generally been in line with the growth in net sales and has continued the trend for the three and six months ended November 30, 2012 as compared to the three and six months ended November 30, 2011.
Other Liquidity Information
We have issued notes, entered into senior secured credit facilities, including term loan facilities, cash flow revolving credit facilities and an asset-based revolving credit facility, all in connection with the Merger and the refinancing activities detailed in Note 7, Debt, to the condensed consolidated financial statements contained in Item 1 of this report, of which are primarily classified as long-term obligations. There were no borrowings under our cash flow revolving credit facilities and $70.0 million was outstanding under our asset-based revolving credit facility as of November 30, 2012. Our term loan facilities require payments each year in an amount equal (x) 0.25% of the product of (i) the aggregate principal amount of all euro-denominated term loans and dollar-denominated term loans outstanding under the original credit agreement on the closing date multiplied by (ii) a fraction, the numerator of which is the aggregate principal amount of euro-denominated term B loans and dollar-denominated term B loans outstanding on August 2, 2012 (after giving effect to certain conversions that occurred on or after August 2, 2012 pursuant to the restated credit agreement) and the denominator of which is the aggregate principal amount of all outstanding term loans on August 2, 2012 and (y) 0.25% of the aggregate principal amount of all outstanding euro-denominated term B-1 loans and dollar-denominated term B-1, in each case in equal calendar quarterly installments until maturity of the loan and after giving effect to the application of any prepayments. As of November 30, 2012, required principal payments of $33.0 million are due within the next twelve months related to our senior secured term loan facilities.
Our revolving borrowing base available under all debt facilities at November 30, 2012 was $727.9 million, which is net of the borrowing base limitations relating to the asset-based revolving credit facility and its outstanding balance of $70.0 million.
We believe that our cash, other liquid assets and operating cash flow, together with available borrowings and potential access to credit and capital markets, will be sufficient to meet our operating expenses, research and development costs, capital expenditures and to service our debt requirements as they become due. However, our ongoing ability to meet our substantial debt service and other obligations will be dependent upon our future performance, which will be subject to business, financial, economic, regulatory and other factors. We will not be able to control many of these factors, such as economic conditions and regulatory changes in the markets where we operate and pressure from competitors. We cannot be certain that our cash flow will be sufficient to allow us
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to pay principal and interest on our debt, support our operations and meet our other obligations. If we do not have sufficient liquidity, we may be required to refinance all or part of our existing debt, sell assets or borrow more money. We cannot guarantee that we will be able to do so on terms acceptable to us, if at all. In addition, the terms of existing or future debt agreements may restrict us from pursuing any of these alternatives.
Off-Balance Sheet Arrangements
We do not currently have any off-balance sheet arrangements that have or are reasonably likely to have a material current or future effect on our financial condition, results of operations, liquidity, capital expenditures or capital resources.
Critical Accounting Policies and Estimates
Managements Discussion and Analysis of Financial Condition and Results of Operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. In managements opinion, our critical accounting policies include revenue recognition, excess and obsolete inventory, goodwill and intangible assets, legal proceedings and other loss contingencies, and income taxes. For further information, including our significant accounting policies, refer to the audited consolidated financial statements and notes thereto included in the Companys 2012 Form 10-K. There have been no significant modifications to the policies related to our critical accounting estimates since May 31, 2012 except those listed below.
As of November 30, 2012, we concluded that certain indicators were present that suggested impairment may exist for our Dental Reconstructive reporting units goodwill and intangibles. The Dental Reconstructive reporting unit had goodwill of $299.2 million and intangibles of $231.4 million at November 30, 2012. The indicators of impairment in our Dental Reconstructive reporting unit include evidence of continued declining industry market growth rates in certain European and Asia Pacific markets and corresponding unfavorable margin trends. Management is in the process of completing its evaluation of impairment including consideration of long-term growth rates, industry information and other valuation assumptions. We will finalize these impairment tests and record any resulting impairment charges during our third quarter of fiscal year 2013.
Forward-Looking Statements
Managements Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with our unaudited condensed consolidated financial statements and the corresponding notes contained in this report and with the financial statements, related notes, and Managements Discussion and Analysis of Financial Condition and Results of Operation in the Companys 2012 Form 10-K. The accompanying unaudited condensed consolidated financial statements are prepared in conformity with accounting principles generally accepted in the United States of America for condensed financial information and such principles are applied on a basis consistent with the information reflected in the Companys 2012 Form 10-K. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to the rules and regulations promulgated by the SEC. In the opinion of management, the interim financial information includes all adjustments and accruals, consisting only of normal recurring adjustments, which are necessary for a fair presentation of results for the respective interim periods.
The results of operations for the three and six months ended November 30, 2012 are not necessarily indicative of the results to be expected for the full fiscal year ending May 31, 2013 or any future interim period. Certain statements contained in this Quarterly Report on Form 10-Q and other written and oral statements made from time to time by us do not relate strictly to historical or current facts. As such, they are considered forward-looking statements which provide current expectations or forecasts of future events. Our forward-looking statements generally relate to our growth strategies, financial results, product development, regulatory approvals, competitive strengths, the scope of our intellectual property rights, litigation, mergers and acquisitions, integration of our acquisitions, divestitures, market acceptance or continued acceptance of our products, accounting estimates, financing activities, ongoing contractual obligations, and sales efforts. Such statements can be identified by the use of terminology such as anticipate, believe, could, estimate, expect, forecast, intend, may, plan, predict, possibly, potential, project, should, will or similar words or expressions. One must carefully consider forward-looking statements that may be affected by inaccurate assumptions, and understand that such statements involve a variety of risks and uncertainties, known and unknown, including, among others, risks related to competition in the medical device industry, reduction or interruption in our supply, quality problems and price decreases for our products and services, and international operations, as well as those discussed in the section entitled Risk Factors in the Companys 2012 Form 10-K. Consequently, no forward-looking statement can be guaranteed and actual results may vary materially. We intend to take advantage of the Safe Harbor provisions of the Private Securities Litigation Reform Act of 1995 regarding our forward-looking statements, and are including this sentence for the express purpose of enabling us to use the protections of the safe harbor with respect to all forward-looking statements.
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We undertake no obligation to update any forward-looking statement, but investors are advised to consult any further disclosures by us in our filings with the Securities and Exchange Commission, especially on Forms 10-K, 10-Q and 8-K, in which we may discuss in more detail various important factors that could cause actual results to differ from expected or historical results. It is not possible to foresee or identify all such factors. As such, investors should not consider any list of such factors to be an exhaustive statement of all risks, uncertainties or potentially inaccurate assumptions.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
There have been no other material changes from the information about market risk provided in the Companys 2012
Form 10-K.
Item 4. Controls and Procedures.
Managements evaluation of disclosure controls and procedures
The Company maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended (the Act)) and internal controls over financial reporting that are designed to provide reasonable assurance that material information required to be disclosed by the Company, including its consolidated entities, in the reports that the Company files or submits under the Act, are recorded, processed, summarized and reported, within the time periods specified in the SECs rules and forms and that such information is accumulated and communicated to management, including the President and Chief Executive Officer (the Principal Executive Officer) and the Chief Financial Officer (the Principal Financial Officer), as appropriate, to allow timely decisions regarding required disclosure. Prior to the filing of this report, the Company completed an evaluation under the supervision and with the participation of senior management, including the Companys Principal Executive Officer and its Principal Financial Officer, of the effectiveness of the design and operation of the Companys disclosure controls and procedures as of November 30, 2012. Based on this evaluation, the Companys Principal Executive Officer and its Principal Financial Officer concluded that Biomet and LVBs disclosure controls and procedures were effective as of November 30, 2012.
Changes in internal control over financial reporting
There were no changes in Biomet or LVBs internal control over financial reporting (as defined in Rule 13a-15(f) of the Act) during the three months ended November 30, 2012 that have materially affected, or are reasonably likely to materially affect, Biomets internal control over financial reporting.
Item 1. | Legal Proceedings |
Information with respect to legal proceedings can be found in Note 15, Contingencies, to the unaudited condensed consolidated financial statements contained in Part I, Item 1 of this report and is hereby incorporated by reference herein. Except as discussed in these notes, there were no material developments in the legal proceedings disclosed by the Company in Part I, Item 8, Note 15 of the Companys 2012 Form 10-K.
Item 1A. | Risk Factors |
As of November 30, 2012, there were no material changes in our risk factors from those disclosed in Part I, Item 1A in the Companys 2012 Form 10-K except for the risk factors noted below.
We may record future goodwill and/or intangible impairment charges related to one or more of our business units, which could materially adversely impact our results of operations.
We test our goodwill and indefinite lived intangible asset balances as of March 31 of each fiscal year for impairment. We test these balances more frequently if indicators are present or changes in circumstances suggest that impairment may exist. In evaluating the potential for impairment we make assumptions regarding revenue projections, growth rates, cash flows, tax rates and discount rates. These assumptions are uncertain and by nature can vary from actual results. Various future events could have a negative impact on the fair value of our reporting units goodwill and indefinite lived intangibles when the annual or interim impairment test is completed. The events include, but are not limited to:
| our ability to sustain sales and earnings growth; |
| the effect of anticipated changes in the size, health and activities of the population or on the demand for our products; |
| our ability and intent to expand in key international markets; |
| the timing and anticipated outcome of clinical studies; |
| assumptions concerning anticipated product developments and emerging technologies; |
| our continued investment in new products and technologies; |
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| the ultimate marketability of products currently being developed; |
| our success in achieving timely approval or clearance of our products with domestic and foreign regulatory entities; and |
| the stability of certain foreign economic markets. |
As of November 30, 2012, we concluded that certain indicators were present that suggested impairment may exist for our Dental Reconstructive reporting units goodwill and intangibles. The Dental Reconstructive reporting unit had goodwill of $299.2 million and intangibles of $231.4 million at November 30, 2012. The indicators of impairment in our Dental Reconstructive reporting unit include evidence of continued declining industry market growth rates in certain European and Asia Pacific markets and corresponding unfavorable margin trends. Management is in the process of completing its evaluation of impairment including consideration of long-term growth rates, industry information and other valuation assumptions. We will finalize these impairment tests and record any resulting impairment charges during our third quarter of fiscal year 2013.
These risk factors could materially affect our business, financial condition or operating results. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may, in the future, materially adversely affect our business, financial condition or results.
Item 5. | Other Information |
Amended and Restated Employment Agreement
On January 14, 2013, the Company entered into an amended and restated employment agreement with Mr. Binder (the Employment Agreement), pursuant to which he will continue to serve as President and Chief Executive Officer of the Company and will continue to be appointed to the Companys Board of Directors and its Executive Committee. The Employment Agreement supersedes the original employment agreement entered into between the Company and Mr. Binder dated as of June 11, 2008 (the Original Agreement). The Employment Agreement has an initial three-year term commencing on January 14, 2013 and provides for automatic 12-month extensions on each anniversary of such commencement date, unless either the Company or Mr. Binder gives prior notice of termination.
In addition to the benefits provided in the Original Agreement, the Employment Agreement provides that Mr. Binder would be entitled to certain enhanced severance benefits following certain terminations of employment. If he is terminated by the Company for any reason other than for cause (as defined in the agreement), death or disability (as defined in the agreement), or if Mr. Binder terminates his employment for good reason (as defined in the agreement) or on or after January 1, 2015, with or without good reason (and his employment could not be terminated by the Company for cause at such time), he would be entitled to an amount equal to (a) 2 times his base salary in effect at the date of termination plus (b) 2 times the annual incentive bonus Mr. Binder would have received for the current year if his employment had not been terminated, based on Biomets performance to the date of termination extrapolated through the end of the current year.
The Employment Agreement also revises the severance to which Mr. Binder would be entitled if his employment is terminated within the two-year period following a change in control. Under the Employment Agreement, if Mr. Binders employment is terminated at any time within the two-year period following a change in control either by the Company for any reason other than for cause, death or disability, or by Mr. Binder for good reason or on or after January 1, 2015, with or without good reason (and his employment could not be terminated by the Company for Cause at such time), Mr. Binder will receive an amount equal to (a) 2 times his base salary in effect at the date of termination plus (b) 2 times the annual incentive bonus Mr. Binder would have received for the current year if his employment had not been terminated, based on Biomets performance to the date of termination extrapolated through the end of the current year.
In addition, under the Employment Agreement, on or following January 1, 2014, Mr. Binder may terminate his employment for good reason upon the appointment of a successor Chief Executive Officer of the Company by resolution of the Board.
Restricted Stock Unit Grant Agreement
On January 14, 2013, the Company entered into an amended and restated Restricted Stock Unit Grant Agreement with Mr. Binder (the RSU Agreement). The RSU Agreement supersedes the original restricted stock grant agreement entered into between the Company and Mr. Binder dated as of July 31, 2012 (the Original RSU Agreement). In addition to the terms of the Original RSU Agreement, the RSU Agreement provides that if Mr. Binder is terminated by the Company for any reason other than for cause (as defined in the RSU Agreement), death or disability (as defined in the RSU Agreement), or if Mr. Binder terminates his employment for
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good reason (as defined in the Employment Agreement) prior to January 1, 2015, any unvested Time-Based Restricted Stock Units that would have vested had Mr. Binder remained employed through January 1, 2015 will satisfy the time-based vesting condition as of the date of his termination.
The RSU Agreement also provides for payment with respect to Mr. Binders Management Dividend Awards upon certain terminations. The terminations to which such benefits apply are (a) for periods prior to January 1, 2015, if Mr. Binders employment is terminated in any year by the Company other than for cause, death or disability or by him for good reason, and (b) for periods after January 1, 2015, if Mr. Binders employment is terminated in any year by the Company without cause or by him for any reason (each an eligible termination). In the case of an eligible termination prior to the Management Dividend Award Date in the year of termination, Mr. Binder will be entitled to receive a Management Dividend Award Payment Amount (paid at the same time Management Dividend Award payments are made to other employees for such year) with respect to a number of Management Dividend Awards equal to the number of Time-Based Restricted Stock Units vested and outstanding as of his termination date, regardless of whether he was employed on the Management Dividend Award vesting date(s) or on the Management Dividend Award Payment Date for such year. Mr. Binder would have no entitlement to any Management Dividend Award payment paid in respect of any year subsequent to the year in which his employment terminates.
The RSU Agreement requires that in connection with certain increases and decreases in the numbers of issued and outstanding shares of common stock of the Company, the Board will make adjustments to Mr. Binders RSU Agreement that the Board deems appropriate to prevent the enlargement or dilution of rights with respect to the number of shares of common stock available for grant under the 2012 Restricted Stock Unit Plan and the number of shares of common stock subject to restricted stock unit grant agreements. The RSU Agreement also requires that any adjustment made in connection with a cash dividend or distribution will be made in the same manner as the adjustment made to all or substantially all restricted stock units with substantially the same terms and conditions as Mr. Binders restricted stock units.
Stock Option Grant Agreement
On January 14, 2013, the Company entered into an amended and restated Stock Option Grant Agreement with Mr. Binder (the Option Agreement). The Option Agreement supersedes the original stock option grant agreement entered into between the Company and Mr. Binder dated as of July 31, 2012 (the Original Option Agreement).
In addition to the terms of the Original Option Agreement, the Option Agreement provides that if Mr. Binder is terminated by the Company for any reason other than for cause (as defined in the Option Agreement), death or disability (as defined in the Option Agreement), or if Mr. Binder terminates his employment for good reason (as defined in the Employment Agreement) prior to January 1, 2015, any unvested Replacement Extended Time Vesting Options that would have vested had Mr. Binder remained employed through January 1, 2015 will vest on the date of his termination. The Option Agreement also provides that if Mr. Binder terminated his employment without good reason (and his employment could not be terminated by the Company for Cause at such time), he will retain exercise rights on vested stock options until their expiration date as follows: continuously employed through January 1, 2014, retains 70% of vested options;
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continuously employed through July 1, 2014, retains 85% of vested options; and continuously employed through January 1, 2015, retains 100% of vested options. If the Company terminates Mr. Binders employment other than for cause, death or disability, or Mr. Binder terminates for good reason, he will retain 100% of the vested options until their expiration date. The Option Agreement provides that if the Company modifies or offers to employees to modify the expiration date of options granted to employees on substantially the same terms and conditions as applies to Mr. Binders option, the expiration date of Mr. Binders option will also be modified or eligible for modification.
The above descriptions of the Employment Agreement, the RSU Agreement and the Stock Option Grant Agreement are qualified in their entirety by reference to the copies of such agreements filed herewith as Exhibits 10.1, 10.2 and 10.3, respectively, and incorporated herein by reference.
Item 6. | Exhibits. |
(a) Exhibits. See Index to Exhibits.
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Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, LVB Acquisition, Inc. and Biomet, Inc. have duly caused this report to be signed on their behalf by the undersigned, thereunto duly authorized.
LVB ACQUISITION, INC.
BIOMET, INC.
Date: January 14, 2013 | By: | /S/ JEFFREY R. BINDER | ||||
Jeffrey R. Binder | ||||||
President and Chief Executive Officer |
Date: January 14, 2013 | By: | /S/ DANIEL P. FLORIN | ||||
Daniel P. Florin | ||||||
Senior Vice President and Chief Financial Officer |
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EXHIBIT INDEX
Exhibit No. |
Exhibit | |
10.1 | Amended and Restated Employment Agreement, dated January 14, 2013, by and between Biomet, Inc. and Jeffrey R. Binder | |
10.2 | Amended and Restated Restricted Stock Unit Grant Agreement, dated January 14, 2013, by and between LVB Acquisition, Inc. and Jeffery R. Binder | |
10.3 | Amended and Restated Stock Option Grant Agreement, dated January 14, 2013, by and between LVB Acquisition, Inc. and Jeffrey R. Binder | |
31.1 | Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2 | Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1 | Certification to 18 U.S.C Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
101.INS | XBRL Instance Document | |
101.SCH | XBRL Taxonomy Extension Schema Document | |
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document | |
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | |
101.LAB | XBRL Taxonomy Extension Label Linkbase Document | |
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document |
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Exhibit 10.1
EXECUTION VERSION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (Agreement), dated as of January 14, 2013 is made by and between Biomet, Inc., an Indiana corporation (the Company), and Jeffrey R. Binder (the Executive).
WHEREAS, the Company and the Executive entered into that certain Employment Agreement dated as of June 11, 2008, as amended (the Prior Agreement);
WHEREAS, the Company and the Executive desire to amend and restate the Prior Agreement to set out the terms and conditions for the continued employment relationship of the Executive with the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:
1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Executive and the Executive agrees to be employed by the Company for the Employment Period set forth in Section 2 and in the positions and with the duties set forth in Section 3. Terms used herein with initial capitalization not otherwise defined are defined in Section 23.
2. Term. The initial term of employment (the Initial Term) under this Agreement shall be for a three-year period commencing on January 14, 2013 (the Effective Date). The term of employment shall be automatically extended for an additional consecutive 12-month period (the Extended Term) on the first anniversary of the Effective Date and each subsequent anniversary of the Effective Date, unless and until the Company or Executive provides written notice to the other party in accordance with Section 11 hereof not less than 90 days before such anniversary date that such party is electing not to extend the term of employment under this Agreement (Non-Renewal), in which case the term of this Agreement shall end as of the end of such Initial Term or Extended Term, as the case may be, unless sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms are collectively referred to herein as the Employment Period.
3. Position and Duties. During the Employment Period, the Executive shall serve as President and Chief Executive Officer of the Company. In such capacities, the Executive shall report to the Board (or, if the Company becomes a subsidiary of a different entity, the board of directors of the Companys ultimate parent company). During the Employment Period, the Executive shall have the powers and authority customarily exercised by individuals serving as president and chief executive officer of a company of the size and nature of the Company. In addition, the Executive shall be appointed as a member of the Companys Board of Directors (the Board) and appointed to the Boards Executive Committee, if existing at the time. During the Employment Period, the Board shall nominate the Executive for re-election to the Board at the annual meeting(s) that the Executives position is up for re-election in the ordinary course. The Executive shall devote the Executives reasonable best efforts and full business time to the performance of the Executives duties hereunder and the advancement of the business and affairs
of the Company; provided that the Executive shall be entitled to serve as a member of the board of directors of another company approved by the Board, to serve on civic, charitable, educational, religious, public interest or public service boards approved by the Board, and to manage the Executives personal and family investments, in each case, to the extent such activities do not, individually or in the aggregate, materially interfere with the performance of the Executives duties and responsibilities hereunder.
4. Place of Performance. During the Employment Period, the Executive shall be based primarily at the principal executive offices of the Company in Warsaw, Indiana, except for reasonable travel on the Companys business consistent with the Executives position.
5. Compensation and Benefits.
(a) Base Compensation. During the Employment Period, the Company shall pay to the Executive a base salary (the Base Salary) at the rate of no less than $736,396 per year. The Base Salary shall be reviewed for increase by the Company no less frequently than annually and shall be increased in the discretion of the Company and any such adjusted Base Salary shall constitute Base Salary for purposes of this Agreement. The Base Salary shall be paid in substantially equal installments in accordance with the Companys regular payroll procedures.
(b) Annual Bonus. The Executive shall be given the opportunity to earn an annual incentive bonus for each fiscal year that ends during the Employment Period in accordance with the annual bonus plan generally applicable to the Companys executive officers, as the same may be in effect from time to time (the Annual Plan). The Executives target annual incentive bonus opportunity under the Annual Plan shall be no less than 110% of the Executives Base Salary for on-target performance with the possibility of exceeding 110% for high achievement. The actual amount payable to the Executive as an annual bonus under the Annual Plan shall be dependent upon the achievement of performance objectives established in accordance with the Annual Plan by the Board or the compensation committee of the Board (or its successor committee) (the Compensation Committee). Any bonus payable pursuant to this Section 5(b) shall be paid at the same time annual bonuses are payable to other officers of the Company in accordance with the terms of the Annual Plan.
(c) Vacation; Benefits. During the Employment Period, the Company shall provide to the Executive employee benefits and perquisites on a basis that is no less favorable than that provided to other senior officers of the Company, including participation in the Companys deferred compensation plan (if any), as in effect from time to time. Subject to the terms of this Agreement, all benefits are provided at the Companys sole discretion. Subject to the terms of this Agreement, the Company shall have the right to change insurance carriers and to adopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Executive. Notwithstanding anything in this Section 5(c) to the contrary, the Executive shall be entitled to an additional four (4) week vacation in the summer of calendar year 2014.
(d) Reimbursement for Weekly Travel Expenses. Unless otherwise required by the reasonable needs of the Company, the Company acknowledges that the Executive will
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spend weekends during the Employment Period at his home in Austin, Texas. The Company shall arrange, at its expense, for the Executive to fly once per week to and from the Executives Texas home and the Companys headquarters (or such other location as the Company may reasonably specify) during the Employment Period. The Company shall not gross up the Executive for taxes incurred in connection with these benefits, which shall be calculated in accordance with applicable law; provided, however, that if the Executive uses a commercial flight and the income imputed in connection therewith is greater than the amount that would have been imputed to the Executive if he had used a Company-operated aircraft, the Company shall gross up the Executive for taxes incurred on the amount by which Executives income imputed in connection with the commercial flight exceeds the income that would have been imputed to the Executive if he had used a Company-operated aircraft. Any gross-up payment required to be paid by the Company under this Section 5(d) shall be paid by the Company to the Executive as soon as administratively practicable following the Companys receipt of a detailed accounting of (i) any such excess income imputed to the Executive as described in the preceding sentence and (ii) the taxes payable by the Executive as a result thereof, but in no event later than the last day of the calendar year immediately following the calendar year in which the Executive first remits the taxes to which the gross-up payment relates. Notwithstanding anything to the contrary contained herein, the Companys incremental costs associated with extending these benefits to the Executive shall not exceed $500,000 in any 12-month period. For purposes of applying this limitation, the Companys incremental cost for (a) commercial flights shall be the cost of the Executives ticket and (b) flights on Company-operated aircraft shall be the incremental per-hour cost associated with the Executives flight(s) and other incremental costs related to such flights, such as landing fees, transportation and housing costs of aircrew and other similar costs.
6. Expenses. The Executive is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The Company shall reimburse the Executive for all such expenses reasonably and actually incurred in accordance with policies which may be adopted from time to time by the Company promptly upon periodic presentation by the Executive of an itemized account, including reasonable substantiation, of such expenses.
7. Confidentiality, Non-Disclosure and Non-Competition Agreement. The Company and the Executive acknowledge and agree that during the Executives employment with the Company, the Executive will have access to and may assist in developing Company Confidential Information and will occupy a position of trust and confidence with respect to the Companys affairs and business and the affairs and business of the Companys Affiliates. The Executive agrees that the following obligations are necessary to preserve the confidential and proprietary nature of Company Confidential Information and to protect the Company and its Affiliates against harmful solicitation of employees and customers, harmful competition and other actions by the Executive that would result in serious adverse consequences for the Company and its Affiliates:
(a) Non-Disclosure. During the Executives employment with the Company and thereafter, the Executive will not knowingly use, disclose or transfer any Company Confidential Information other than as authorized in writing by the Company or within Executives good faith interpretation of the scope of the Executives duties. Anything herein to the contrary notwithstanding, the provisions of this Section 7(a) shall not apply (i) when
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disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Executive to disclose or make accessible any information; or (ii) to information that becomes generally known to the public or within the relevant trade or industry other than due to the Executives violation of this Section 7(a).
(b) Materials. The Executive will not remove any Company Confidential Information or any other property of the Company or any of its Affiliates from the Companys premises or make copies of such materials except for normal and customary use in the Companys business. The Company acknowledges that the Executive, in the ordinary course of his duties, routinely uses and stores Company Confidential Information at home and other locations. The Executive will return to the Company all Company Confidential Information and copies thereof and all other property of the Company or any of its Affiliates at any time upon the request of the Company and in any event promptly after termination of Executives employment. The Executive agrees to attempt in good faith to identify and return to the Company any copies of any Company Confidential Information after the Executive ceases to be employed by the Company. Anything to the contrary notwithstanding, nothing in this Section 7 shall prevent the Executive from retaining a home computer, papers and other materials of a personal nature (including diaries and calendars), information relating to his compensation or relating to reimbursement of expenses, information that he reasonably believes may be needed for tax purposes, and copies of plans, programs and agreements relating to his employment.
(c) No Solicitation or Hiring of Employees. During the Non-Compete Period, the Executive shall not solicit, entice, persuade or induce any individual who is employed by the Company or any of its Affiliates (or who was so employed within 180 days prior to the Executives action) to terminate or refrain from continuing such employment or to become employed by or enter into contractual relations with any other individual or entity other than the Company or any of its Affiliates, and the Executive shall not, directly or indirectly, hire, or participate in the hiring, as an employee, consultant or otherwise, any such Person.
(d) Non-Competition.
(i) During the Non-Compete Period, the Executive shall not, directly or indirectly, (A) solicit or encourage any client or customer of the Company or any of its Affiliates, or any Person who was a client or customer within 180 days prior to Executives action to terminate, reduce or alter in a manner adverse to the Company, any existing business arrangements with the Company or any of its Affiliates or to transfer existing business from the Company or any of its Affiliates to any other Person, (B) provide services to any entity that competes with the Company or its Affiliate in the United States or any other jurisdiction in which the Executive has any responsibility during his employment hereunder or that provides a product or service competitive with any product or service provided by the Company or its Affiliate or (C) own an interest in any entity described in subsection (B) immediately above; provided, however, that Executive may own, as a passive investor, securities of any such entity that has outstanding publicly traded securities so long as his direct holdings in any such entity shall not in the aggregate constitute more than 2% of the voting power of such entity. The Executive agrees that, before providing services, whether as an employee or
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consultant, to any entity during the Non Compete Period, he will provide a copy of this Agreement to such entity and acknowledge, to the Company in writing, that he has done so. Notwithstanding the foregoing, nothing in this Section 7 shall prevent the Executive from providing services to a division or a subsidiary of an entity that does not compete with the Company or any of its Affiliates and that does not provide products or services competitive with products or services provided by the Company or any of its Affiliates even if other divisions or subsidiaries of that entity compete with the Company so long as the Executive does not have any managerial or supervisory authority with respect to such competitive division or subsidiary. The Executive acknowledges that this covenant has a unique, very substantial and immeasurable value to the Company, that the Executive has sufficient assets and skills to provide a livelihood for the Executive while such covenant remains in force and that, as a result of the foregoing, in the event that the Executive breaches such covenant, monetary damages would be an insufficient remedy for the Company and equitable enforcement of the covenant would be proper. The Executive further covenants that he shall not challenge the reasonableness of any of the covenants set forth in this Section 7, but reserves the right to challenge the Companys interpretation of such covenants.
(ii) If the restrictions contained in Section 7(d)(i) shall be determined by any court of competent jurisdiction to be unenforceable by reason of their extending for too great a period of time or over too great a geographical area or by reason of their being too extensive in any other respect, Section 7(d)(i) shall be modified to be effective for the maximum period of time for which it may be enforceable and over the maximum geographical area as to which it may be enforceable and to the maximum extent in all other respects as to which it may be enforceable.
(e) Publicity. During the Employment Period, the Executive hereby grants to the Company the right to use, in a reasonable and appropriate manner, the Executives name and likeness, without additional consideration, on, in and in connection with technical, marketing or disclosure materials, or any combination thereof, published by or for the Company or any of its Affiliates.
(f) Conflicting Obligations and Rights. The Executive represents and warrants that he is not subject to agreement or contractual commitment that prevents or in any way limits his ability to fully discharge his duties and responsibilities hereunder and that he is not in possession of any confidential or proprietary information of another Person that will be used in connection with the discharge of his duties hereunder. The Executive acknowledges and agrees that the accuracy of the foregoing representation and warranty is a condition precedent to the enforceability of the Companys obligations hereunder.
(g) Enforcement. The Executive acknowledges that in the event of any breach of this Section 7, the business interests of the Company and its Affiliates will be irreparably injured, the full extent of the damages to the Company and its Affiliates will be impossible to ascertain, monetary damages will not be an adequate remedy for the Company and its Affiliates, and the Company will be entitled to enforce this Agreement by a temporary, preliminary and/or permanent injunction or other equitable relief, without the necessity of posting bond or security, which the Executive expressly waives. The Executive understands that the Company may waive
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some of the requirements expressed in this Agreement, but that such a waiver to be effective must be made in writing and should not in any way be deemed a waiver of the Companys right to enforce any other requirements or provisions of this Agreement. The Executive agrees that each of the Executives obligations specified in this Agreement is a separate and independent covenant and that the unenforceability of any of them shall not preclude the enforcement of any other covenants in this Agreement.
8. Termination of Employment. The Executives employment hereunder may be terminated during the Employment Period under the following circumstances:
(a) Death. The Executives employment hereunder shall terminate upon the Executives death;
(b) By the Company. The Company may terminate the Executives employment for:
(i) Disability. If the Executive shall have been substantially unable to perform the Executives material duties hereunder by reason of illness, physical or mental disability or other similar incapacity, which inability shall continue for 90 consecutive days or 180 non-consecutive days in any 24-month period and which qualified Executive for long term disability coverage under applicable Company disability plans (a Disability);
(ii) Cause. The Company may terminate the Executives employment for Cause as defined herein; or
(iii) Without Cause. The Company may terminate the Executives employment without Cause at any time upon not less than 90 days notice to the Executive. The Companys Non-Renewal of the Initial Term or the Extended Term shall constitute a termination of the Executives employment by the Company without Cause, and the Companys notice of Non-Renewal pursuant to Section 2 hereof shall constitute notice of termination without Cause for purposes of this Section 8(b)(iii). Notwithstanding the foregoing, the Companys Non-Renewal of the Initial Term or the Extended Term shall constitute a termination of the Executives employment by the Company without Cause only if the Company determines that a separation from service within the meaning of Treasury Regulation l.409A-l(h) has occurred.
(c) By the Executive. The Executive may terminate his employment with or without Good Reason upon not less than 90 days notice to the Company. The Executives Non-Renewal of the Initial Term or the Extended Term shall constitute a termination of employment by the Executive without Good Reason, and the Executives notice of Non-Renewal pursuant to Section 2 hereof shall constitute notice of the Executives termination of his employment for purposes of this Section 8(c). During this 90-day notice period, the Company may, without breaching this Agreement or constituting Good Reason or a Termination without Cause, relieve the Executive of his positions, titles, duties and responsibilities and direct the Executive to cease appearing on Company property. In addition, upon delivery of such Notice of Termination by the Executive, the Executive shall be deemed to have resigned as a member of the Board.
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Notwithstanding the foregoing, the Executives Non-Renewal of the Initial Term or the Extended Term shall constitute a termination of employment by the Executive without Good Reason only if the Company determines that a separation from service within the meaning of Treasury Regulation 1.409A-l(h) has occurred. Any termination of employment by the Executive prior to January 1, 2014 may not be treated as a termination for Good Reason under clause (iv) of the definition thereof.
(d) Notice of Termination. Any termination of the Employment Period, other than pursuant to the Executives death, shall be effected by delivery to the other party of a notice of termination (a Notice of Termination) from the party terminating the Employment Period.
(e) Other Resignations. Upon any termination of the Executives employment, he shall automatically resign, and shall automatically be deemed to have resigned, from all positions with the Company and its Affiliates, including his position as a member of the Board.
9. Compensation Upon Termination.
(a) Death. If the Executives employment is terminated during the Employment Period as a result of the Executives death, this Agreement and the Employment Period shall terminate without further notice or any action required by the Company or the Executives legal representatives. Upon the Executives death, the Company shall pay or provide the following: (i) the Company shall pay to the Executives legal representative or estate, as applicable, the Executives Base Salary due through the Executives Date of Termination; (ii) the Company shall pay to the Executives legal representative or estate, as applicable, a pro rated portion (based on the percentage of the Companys fiscal year preceding the Executives Date of Termination) of the average of (x) the annual incentive bonus earned by the Executive for the fiscal year immediately preceding the fiscal year that contains the Date of Termination and (y) the annual incentive bonus the Executive would have received for the fiscal year that contains the Date of Termination if his employment had not been terminated, as determined by the Board based on the Companys performance to the Date of Termination extrapolated through the end of such fiscal year; and (iii) the Company shall pay, at the time when such payments are due, to the Executives legal representative or estate, as applicable, the Accrued Benefits and the rights of the Executives legal representative or estate with respect to any equity or equity-related awards shall be governed by the applicable terms of the related plan or award agreement. The total amount of the pro rated bonus described in clause (ii) of the preceding sentence will be paid in a lump sum at the time the Company pays annual incentive bonuses under the Annual Plan to its similarly situated active employees for the fiscal year that contains the Date of Termination. Except as set forth herein, the Company shall have no further obligation to the Executive under this Agreement.
(b) Disability. If the Company terminates the Executives employment during the Employment Period because of the Executives Disability pursuant to Section 8(b)(i), (i) the Company shall pay to the Executive or the Executives legal representative, as applicable, the Executives Base Salary due through the Executives Date of Termination, (ii) the Company shall pay to the Executive or the Executives legal representative, as applicable, a pro rated portion (based on the percentage of the Companys fiscal year preceding the Executives Date of Termination) of the average of (x) the annual incentive bonus earned by the Executive for the
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fiscal year immediately preceding the fiscal year that contains the Date of Termination and (y) the annual incentive bonus the Executive would have received for the fiscal year that contains the Date of Termination if his employment had not been terminated, as determined by the Board based on the Companys performance to the Date of Termination extrapolated through the end of such fiscal year; and (iii) the Company shall pay to the Executive or the Executives legal representative, as applicable, at the time when such payments are due, the Accrued Benefits and the rights of the Executive or the Executives legal representative, as applicable, with respect to any equity or equity-related awards shall be governed by the applicable terms of the related plan or award agreement. The total amount of the pro rated bonus described in clause (ii) of the preceding sentence will be paid in a lump sum at the time the Company pays annual incentive bonuses under the Annual Plan to its similarly situated active employees for the fiscal year that contains the Date of Termination. Except as set forth herein, the Company shall have no further obligation to the Executive under this Agreement.
(c) Certain Terminations by the Company or Voluntarily by the Executive. If, during the Employment Period, the Company terminates the Executives employment for Cause at any time or, prior to January 1, 2015, the Executive voluntarily terminates his employment other than for Good Reason, the Company shall pay to the Executive the Executives Base Salary due through the Date of Termination and all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, at the time such payments are due, and the Executives rights with respect to any equity or equity-related awards shall be governed by the applicable terms of the related plan or award agreement.
(d) Certain Terminations by the Company Other Than For Cause, Death or Disability, or by the Executive, Prior to a Change of Control. If the Company terminates the Executives employment during the Employment Period other than for Cause or due to the Executives death or Disability, or if Executive terminates the Executives employment during the Employment Period for Good Reason or, on or after January 1, 2015, with or without Good Reason (and his employment could not be terminated by the Company for Cause at such time), in either case at any time other than during the two year period following a Change of Control, then
(i) Executive shall be entitled to an amount equal to (A) 2 times the Executives Base Salary in effect at the Date of Termination (the Base Component) plus (B) 2 times the annual incentive bonus the Executive would have received for the fiscal year that contains the Date of Termination if his employment had not been terminated, as determined by the Board based on the Companys performance to the Date of Termination extrapolated through the end of such fiscal year (the Bonus Component, and together with the Base Component, the Severance Benefit). The total amount of the Severance Benefit will be paid in equal, ratable installments in accordance with the Companys regular payroll policies over the course of the Non-Compete Period;
(ii) Executive shall be entitled to a pro rated portion (based on the percentage of the Companys fiscal year preceding the Executives Date of Termination) of the annual incentive bonus the Executive would have received for the fiscal year that contains the Date of Termination if his employment had not been terminated, as determined by the Board based on the Companys performance to the Date of
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Termination extrapolated through the end of such fiscal year. The total amount of the pro rated bonus described in the preceding sentence will be paid in a lump sum at the time the Company pays annual incentive bonuses under the Annual Plan for such fiscal year to its similarly situated active employees;
(iii) If the Executive is eligible for and elects continuation coverage pursuant to COBRA (with respect to the Executive and/or the Executives dependents who are eligible to elect COBRA under the Companys group health plan(s) as a direct result of the Executives termination of employment), the Company shall pay (as of the first of each applicable month) the premiums for such coverage (or reimburse the Executive for such premiums) until the earlier to occur of (x) the end of the Non-Compete Period or (y) the date the Executive becomes eligible for coverage under another group health plan;
(iv) Executive shall be entitled to continued payment of the Executives Company-provided car allowance, if any, for a period of twelve months from the termination date;
(v) The Company shall pay to the Executive, at the time when such payments are due, the Accrued Benefits; and
(vi) The rights of the Executive with respect to any equity or equity-related awards shall be governed by the applicable terms of the related plan or award agreement.
(e) Certain Terminations by the Company Other Than For Cause, Death or Disability, or by the Executive, Following a Change of Control. If the Company terminates the Executives employment during the Employment Period other than for Cause or due to the Executives death or Disability, or if Executive terminates the Executives employment during the Employment Period for Good Reason or, on or after January 1, 2015, with or without Good Reason (and his employment could not be terminated by the Company for Cause at such time), in each case within the two-year period following a Change of Control, then:
(i) Executive shall be entitled to an amount equal to (A) 2 times the Executives Base Salary in effect at the Date of Termination plus (B) 2 times the annual incentive bonus the Executive would have received for the fiscal year that contains the Date of Termination if his employment had not been terminated, as determined by the Board based on the Companys performance to the Date of Termination extrapolated through the end of such fiscal year (the Change of Control Severance Benefit). To the extent that the Change of Control qualifies as a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company within the meaning of U.S. Treasury Department Regulation Section 1.409A-3(i)(5), the total amount of the Change of Control Severance Benefit will be paid in a lump sum as soon as administratively practicable following the Date of Termination and, in all other circumstances, the total amount of the Change of Control Severance Benefit will be paid in equal, ratable installments in accordance with the Companys regular payroll policies over eighteen (18) months;
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(ii) Executive shall be entitled to a pro rated portion (based on the percentage of the Companys fiscal year preceding the Executives Date of Termination) of the Executives target annual incentive bonus under the Annual Plan for the fiscal year that contains the Date of Termination. The total amount of the pro rated bonus described in the preceding sentence will be paid in a lump sum at the time the Company pays annual incentive bonuses under the Annual Plan for such fiscal year to its similarly situated active employees;
(iii) If the Executive is eligible for and elects continuation coverage pursuant to COBRA (with respect to the Executive and/or the Executives dependents who are eligible to elect COBRA under the Companys group health plan(s) as a direct result of the Executives termination of employment), the Company shall pay (as of the first of each applicable month) the premiums for such coverage (or reimburse the Executive for such premiums) until the earlier to occur of (x) the end of the Non-Compete Period or (y) the date the Executive becomes eligible for coverage under another group health plan;
(iv) Executive shall be entitled to continued payment of the Executives Company-provided car allowance, if any, for a period of twelve months from the termination date;
(v) The Company shall pay to the Executive, at the time when such payments are due, the Accrued Benefits; and
(vi) The rights of the Executive with respect to any equity or equity-related awards shall be governed by the applicable terms of the related plan or award agreement, provided that Executive shall be entitled to immediate vesting in full of any unvested options held by him as of the Date of Termination.
(f) Delay in Payments. Notwithstanding the preceding provisions or any provision in this Agreement to the contrary, all payments pursuant hereto are intended to comply with Code Section 409A of the Internal Revenue Code of 1986, as amended (the Code) and the guidance thereunder, and this Agreement shall be construed accordingly. To the extent that compliance with Section 409A(a)(2)(B) would require any payment otherwise provided for by this Agreement to be delayed for six months, such payment shall be made as soon as administratively practicable after the end of such six-month period.
(g) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Executive for termination by the Company of the Executives employment shall be extremely difficult or impossible to establish or prove, and agree that the amounts payable to the Executive under Section 9(d) or 9(e), as applicable (the Severance Payments), shall constitute liquidated damages for any such termination.
(h) Full Discharge of Company Obligations. In the event of any breach of this Agreement by the Company, the Executive shall be entitled to the lesser of (i) the amount of damages incurred by the Executive as a direct result of each breach and (ii) the Severance Payments the Executive would be entitled to under Section 9(d) or 9(e), as applicable, if his
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employment were terminated thereunder. The amounts payable to Executive following termination of the Employment Period or upon or any actual or constructive termination of the Executives employment pursuant to this Section 9 shall be in full and complete satisfaction of Executives rights under this Agreement and any other claims he may have in respect of his employment by the Company or any of its Affiliates, and Executive acknowledges that such amounts are fair and reasonable, and his sole and exclusive remedy, in lieu of all other remedies at law or in equity, with respect to the termination of his employment hereunder. Payment of any Severance Payment pursuant to Section 9(d) or 9(e), as applicable, shall be conditioned upon (x) Executives execution and non-revocation of a release in a form substantively identical in terms to the form attached as Exhibit A and (y) Executives compliance with the provisions set forth in Section 7 hereof.
(i) Section 409A. To the extent the Executive would be subject to the additional 20% tax imposed on certain deferred compensation arrangements pursuant to Section 409A of the Code as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such tax and the parties shall promptly execute any amendment reasonably necessary to implement this Section 9(i).
10. Tax Gross Up.
(a) Anything in this Agreement or in any other agreement between the Company and the Executive or in any stock option or other benefit plan to the contrary notwithstanding, and except as set forth below, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) (a Payment) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax), then the Executive shall be entitled to receive an additional payment (a Gross-Up Payment) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized certified public accounting firm to be selected by the Company (the Accounting Firm), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting
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Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, shall be paid by the Company to the Executive as soon as administratively practicable following the Companys receipt of the Accounting Firms detailed calculations as described in this Section 10(b), but in no event later than the last day of the calendar year immediately following the calendar year in which the Executive first remits the Payment to which the Gross-Up Payment relates. Any determination by the Accounting Firm shall be binding upon the Company and the Executive.
(c) As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) the Executive was lower than the amount actually due (Underpayment). In the event that the Company exhausts its remedies pursuant to Section 10(d) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment plus any interest and penalties incurred as a result of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.
(d) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty calendar days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably acceptable to the Executive, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis,
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from any Excise Tax or income or employment tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Companys control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.
11. Notices. All notices, demands, requests, or other communications which may be or are required to be given or made by any party to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, mailed by first-class registered or certified mail, return receipt requested, postage prepaid, delivered by overnight air courier, or transmitted by facsimile transmission addressed as follows:
(i) If to the Company, to:
Biomet, Inc.
56 E. Bell Drive
P.O. Box 587
Warsaw, Indiana 46581-0587
Attn: Chief Legal Officer
Facsimile Number: (574) 267-8137
(ii) If to the Executive, to the address last shown on the Companys Records.
Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request, or communication that shall be given or made in the manner described above shall be deemed sufficiently given or made for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, confirmation of facsimile transmission or the affidavit of messenger being deemed conclusive but not exclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
12. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which shall remain in full force and effect.
13. Effect on Other Agreements. The provisions of this Agreement shall supersede the terms of any plan, policy, agreement, award or other arrangement of the Company (whether entered into before or after the Effective Date) to the extent application of the terms of this Agreement is more favorable to the Executive.
14. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22 and 23 hereof shall survive the termination of employment of the Executive.
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15. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event of the Executives death, the personal representative or legatees or distributees of the Executives estate, as the case may be, shall have the right to receive any amount owing and unpaid to the Executive hereunder and (ii) the rights and obligations of the Company hereunder shall be assignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or equity interests of the Company or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.
16. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and assigns.
17. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by the party against whom enforcement is sought. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder.
18. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
19. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Indiana (but not including any choice of law rule thereof that would cause the laws of another jurisdiction to apply). Except as otherwise provided in Section 7(g), each of the parties agrees that any dispute between the parties shall be resolved only in the courts of the State of Indiana or the United States District Court for the Northern District of Indiana and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing (but subject to Section 7(g)), each of the parties hereto irrevocably and unconditionally (a) submits for himself or itself in any proceeding relating to this Agreement or Executives employment by the Company or any of its Affiliates, or for the recognition and enforcement of any judgment in respect thereof (a Proceeding), to the exclusive jurisdiction of the courts of the State of Indiana, the court of the United States of America for the Northern District of Indiana, and appellate courts having jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any such Proceeding shall be heard and determined in such Indiana State court or, to the extent permitted by law, in such federal court; (b) consents that any such Proceeding may and shall be brought in such courts and waives any objection that he or it may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court
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and agrees not to plead or claim the same; (c) waives all right to trial by jury in any Proceeding (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or Executives employment by the Company or any of its Affiliates, or his or its performance under or the enforcement of this Agreement; (d) agrees that service of process in any such Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at his or its address as provided in Section 11; and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of Indiana.
20. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Executive and supersedes all other agreements and understandings.
21. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be deemed to constitute one and the same instrument.
22. Withholding. The Company may withhold from any benefit payment under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.
23. Definitions.
Accrued Benefits means (i) (A) any vested compensation deferred by the Executive prior to the Date of Termination and not paid by the Company; (B) any amounts or benefits owing to the Executive or to the Executives beneficiaries under the then applicable benefit plans of the Company; and (C) any amounts owing to the Executive for reimbursement of expenses properly incurred by the Executive prior to the Date of Termination and which are reimbursable in accordance with Section 6; and (ii) if the Executives employment is terminated during the Employment Period (A) other than by the Company for Cause and other than by the Executive without Good Reason and (B) prior to the Companys payment to him of his annual incentive bonus, if any, under the Annual Plan for the fiscal year immediately preceding the fiscal year that contains the Date of Termination, the amount of such annual incentive bonus.
Affiliate means, with respect to any entity, any other corporation, organization, association, partnership, sole proprietorship or other type of entity, whether incorporated or unincorporated, directly or indirectly controlling or controlled by or under direct or indirect common control with such entity, provided that none of the Majority Stockholders shall be deemed to be an Affiliate of the Company for purposes of this Agreement solely by reason of its ownership interest in the Company, and provided further that no company that is wholly or partially owned by any Majority Stockholder shall be deemed to be an Affiliate of the Company solely by reason of such Majority Stockholders ownership interest therein.
Cause, when used in connection with a termination of the Executives employment, shall mean, unless otherwise provided in any applicable equity award grant agreement entered into between the Company and the Executive with respect to any equity awards that may be granted to the Executive, the termination of the Executives employment
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with the Company and all of its Affiliates on account of (i) a failure of the Executive to substantially perform his duties (other than as a result of physical or mental illness or injury) that has continued after the Company has provided written notice of such failure and the Executive has not cured such failure within 30 days of the date of such written notice, provided that a failure to meet financial performance expectations shall not, by itself, constitute a failure by the Executive to substantially perform his duties; (ii) the Executives willful misconduct or gross negligence; (iii) a willful or grossly negligent breach by a Executive of the Executives fiduciary duty or duty of loyalty to the Company or any of its Affiliates; (iv) the commission by the Executive of any felony or other serious crime involving moral turpitude; (v) a material breach of the Executives obligations under any agreement entered into between the Executive and the Company or any of its Affiliates, which, if such breach is reasonably susceptible to cure, has continued after the Company has provided written notice of such breach and the Executive has not cured such failure within 30 days of the date of such written notice; or (vii) a material breach of the Companys written policies or procedures that have been communicated to the Executive and that causes material harm to the Company or its business reputation.
Change of Control shall mean the occurrence of any of the following events after the Effective Date: (i) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the LVB Acquisition, Inc. on a consolidated basis to any Person or group of related persons for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (a Group), together with any Affiliates thereof other than to a Majority Stockholder; (ii) the approval by the holders of the outstanding voting power of LVB Acquisition, Inc. of any plan or proposal for the liquidation or dissolution of LVB Acquisition, Inc.; (iii) (A) any Person or Group (other than the Majority Stockholder) shall become the beneficial owner (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended), directly or indirectly, of common stock of either the Company or LVB Acquisition, Inc. (or any intermediary entity between the Company and LVB Acquisition, Inc.) representing more than 40% of the aggregate outstanding voting power of the Company, LVB Acquisition, Inc. or such intermediary entity, as applicable, and such Person or Group actually has the power to vote such common stock in any such election and (B) the Majority Stockholder beneficially owns (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended), directly or indirectly, in the aggregate a lesser percentage of the voting power of the Company or LVB Acquisition, Inc. (or any intermediary entity between the Company and LVB Acquisition, Inc.), as applicable, than such other Person or Group; (iv) the replacement of a majority of the Board over a two-year period from the directors who constituted the Board at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the Board then still in office who either were members of such Board at the beginning of such period or whose election as a member of such Board was previously so approved or who were nominated by, or designees of, a Majority Stockholder; (v) consummation of a merger or consolidation of the LVB Acquisition, Inc. with another entity in which holders of the common stock of LVB Acquisition, Inc. immediately prior to the consummation of the transaction hold, directly or indirectly, immediately following the consummation of the transaction, less than 50% of the common equity interest in the surviving corporation in such transaction and the Majority Stockholder does not hold a sufficient amount of voting power (or similar securities) to elect a majority of the surviving entitys board of directors or (vi) a merger, recapitalization or other direct or indirect sale by the Majority Stockholder (including through a public offering) of common stock of LVB Acquisition, Inc.
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that results in more than 80% of the common stock of LVB Acquisition, Inc. (or any resulting company after a merger) owned, directly or indirectly, by the Majority Stockholder immediately following the Closing, no longer being so owned by the Majority Stockholder. For purposes of the preceding sentence, Closing shall mean the closing of the merger of the Company with LVB Acquisition Merger Sub, Inc. pursuant to the Agreement and Plan of Merger, dated as of December 18, 2006 (amended and restated as of June 7, 2007), by and among Biomet, Inc., LVB Acquisition LLC and LVB Acquisition Merger Sub, Inc.
Company Confidential Information means information known to the Executive to constitute trade secrets or proprietary information belonging to the Company or other Company confidential financial information, operating budgets, strategic plans or research methods, personnel data, projects or plans, or non-public information regarding the Company or any Affiliate of the Company, in each case, received by the Executive in the course of his employment by the Company or in connection with his duties with the Company.
Date of Termination means (i) if the Executives employment is terminated by the Executives death, the date of the Executives death; (ii) if the Executives employment is terminated because of the Executives Disability pursuant to Section 8(b)(i), 30 days after Notice of Termination, provided that the Executive shall not have returned to the performance of the Executives duties on a full-time basis during such 30-day period; or (iii) if the Executives employment is terminated for any reason other than the Executives death or Disability, the date specified in the Notice of Termination, which in the case of a termination of employment by the Executive may not be less than 90 days following the date the notice is provided.
Extended Term shall have the meaning set forth in Section 2.
Good Reason shall mean, unless otherwise provided in any applicable equity award grant agreement entered between the Company or LVB Acquisition, Inc. and the Executive with respect to any equity awards that may be granted to the Executive, the occurrence of the following, without the Executives consent with respect to (i), (ii) and (iii), (i) a material diminution in the Executives duties and responsibilities as of the Effective Date; (ii) a decrease in a Executives base salary or bonus opportunity as of the Effective Date, other than a decrease in base salary or bonus opportunity that applies to a similarly situated class of employees of the Company or its Affiliates; (iii) a relocation of a Executives primary work location more than 50 miles from the Executives work location on the Effective Date; or (iv) the appointment of a successor Chief Executive Officer of the Company by resolution of the Board; provided that, within thirty days following the occurrence of any of the events set forth herein (or, as to clause (iv), if later, by January 31, 2014), the Executive shall have delivered written notice to the Company of his intention to terminate his employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to the Executives right to terminate employment for Good Reason, and neither the Company nor LVB Acquisition, Inc. shall not have cured such circumstances within thirty days following the Companys receipt of such notice.
Majority Stockholder, for purposes of this Agreement, shall mean, collectively or individually as the context requires, Blackstone Group, L.P., The Goldman Sachs Group, Inc., Kohlberg Kravis Roberts & Co., TPG Capital, L.P. and their respective Affiliates.
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Non-Compete Period means the period commencing on the Effective Date and ending eighteen (18) months after the earlier of the expiration of the Employment Period or the Executives Date of Termination.
Person means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly executed and delivered on their behalf.
BIOMET, INC. | ||
By: | /s/ Bradley J. Tandy | |
Name | Bradley J. Tandy | |
Title: | Senior Vice President, General Counsel & Secretary | |
EXECUTIVE | ||
/s/ Jeffrey R. Binder | ||
Name: Jeffrey R. Binder |
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Exhibit 10.2
EXECUTION VERSION
AMENDED AND RESTATED RESTRICTED STOCK UNIT GRANT AGREEMENT
THIS AMENDED AND RESTATED RESTRICTED STOCK UNIT GRANT AGREEMENT (Agreement), is made as of this 14th day of January, 2013 between LVB Acquisition, Inc. (the Company) and Jeffrey R. Binder (the Participant).
WHEREAS, the Company has adopted and maintains the LVB Acquisition, Inc. 2012 Restricted Stock Unit Plan (the Plan) to promote the interests of the Company and its Affiliates and stockholders by providing the executives and key employees of the Company and its Affiliates with an appropriate incentive to encourage them to continue in the employ of the Company or an Affiliate and to improve the growth and profitability of the Company;
WHEREAS, the Plan provides for the Grant to Participants of Restricted Stock Units to acquire shares of Common Stock;
WHEREAS, the Company and the Participant entered into that certain Restricted Stock Unit Grant Agreement dated as of July 31, 2012, as amended (the Prior Agreement);
WHEREAS, Section 4.6 of the Plan provides that the Board of Directors of the Company may, in its absolute discretion, amend the Plan or terms of any Restricted Stock Unit;
WHEREAS, the Company and the Participant desire to amend and restate the Prior Agreement to provide certain benefits upon termination of employment;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Grant of Restricted Stock Units. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant Restricted Stock Unit(s) (the Restricted Stock Unit(s)) with respect to 2,800,000 shares of Common Stock, of which 1,880,000 shall be Time-Based Restricted Stock Units and 920,000 shall be Performance-Based Restricted Stock Units.
2. Grant Date. The Grant Date of the Restricted Stock Unit hereby granted is July 31, 2012, with a deemed Grant Date for purposes of calculating a vesting date pursuant to Section 5 of January 1, 2012.
3. Grant of Management Dividend Awards. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant 1,880,000 Management Dividend Awards with respect to each Restricted Stock Unit. Each Management Dividend Award corresponds on a one-to-one basis with each Time-Based Restricted Stock Unit.
4. Incorporation of Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Restricted Stock Unit Grant Agreement, the terms and conditions of the Plan, as interpreted by the Board in its sole discretion, shall govern, unless explicitly
provided to the contrary in this Restricted Stock Unit Grant Agreement. All capitalized terms used herein shall have the meaning given to such terms in the Plan.
5. Vesting Dates. The number of Restricted Stock Units that shall be vested and no longer forfeitable at any time (the date all such conditions have been satisfied with respect to some or all of the Restricted Stock Units, the Vesting Date with respect to such Restricted Stock Units) with respect to each of the Time-Based Restricted Stock Units and the Performance-Based Restricted Stock units is set forth below, subject to satisfaction of the additional conditions to settlement set forth in Section 6.1 for the Time-Based Restricted Stock Units.
5.1 Time-Based Restricted Stock Units. Time-Based Restricted Stock Units will satisfy the time-based component of the vesting requirements as follows (the Time-Based Vesting Condition): Ten percent (10%) of the Time-Based Restricted Stock Units shall be vested upon the Grant Date; ten percent (10%) of the Time-Based Restricted Stock Units shall vest on January 1, 2013; ten percent (10%) of the Time-Based Restricted Stock Units shall vest on January 1, 2014; ten percent (10%) of the Time-Based Restricted Stock Units shall vest on June 1, 2014; ten percent (10%) of the Time-Based Restricted Stock Units shall vest on January 1, 2015; ten percent (10%) of the Time-Based Restricted Stock Units shall vest on June 1, 2015; ten percent (10%) of the Time-Based Restricted Stock Units shall vest on January 1, 2016; fifteen percent (15%) of the Time-Based Restricted Stock Units shall vest on June 1, 2016; and fifteen percent (15%) of the Time-Based Restricted Stock Units shall vest on January 1, 2017; in each case provided that the Participant continues to be Employed by the Company or an Affiliate on such date.
5.2 Performance-Based Restricted Stock Units.
(a) Fifty percent (50%) of the Performance-Based Restricted Stock Units shall vest upon the occurrence of a Liquidity Event in which Majority Stockholder achieves an Individual MoM and Cumulative MoM of at least 1.10, subject to the terms and conditions set forth in Section 5.2(b) and 5.2(c) below (the 1.10 RSUs) and fifty percent (50%) of the Performance-Based Restricted Stock Units shall vest upon the occurrence of a Liquidity Event in which Majority Stockholder achieves an Individual MoM and a Cumulative MoM of at least 1.25, subject to the terms and conditions set forth in Section 5.2(b) and 5.2(c) below (the 1.25 RSUs).
(b) Upon the occurrence of a Liquidity Event, the Performance-Based Restricted Stock Units shall be eligible to vest as described in this Section.
(i) For purposes of this Section 5.2(b), (A) the Eligible Percentage shall equal a fraction (1) the numerator of which is the Initial Majority Stockholder Shares sold in such Liquidity Event and (2) the denominator of which is the number of Initial Majority Stockholder Shares; provided that to the extent any such Liquidity Event does not result in the sale, transfer or other disposition of Initial Majority Stockholder Shares, such fraction shall be equitably adjusted by the Board as appropriate to reflect the conversion of equity value into cash in connection with such cash dividend or other distribution; (B) the 1.10 RSU Prior Eligible Amount shall equal the aggregate number of unvested 1.10
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RSUs that would have vested in connection with any prior Liquidity Event had the Majority Stockholder achieved an Individual MoM and a Cumulative MoM of at least 1.10 in connection with such Liquidity Event; and (C) the 1.25 RSU Prior Eligible Amount shall equal the aggregate number of unvested 1.25 RSUs that would have vested in connection with any prior Liquidity Event had the Majority Stockholder achieved an Individual MoM and a Cumulative MoM of at least 1.25 in connection with such Liquidity Event.
(ii) The number of 1.10 RSUs that shall vest upon the occurrence of a Liquidity Event as a result of which the Majority Stockholder achieves both an Individual MoM and a Cumulative MoM of at least 1.10 shall be equal to the sum of (A) the Eligible Percentage of 1.10 RSUs and (B) the 1.10 RSU Prior Eligible Amount, provided that the Participant continues to be Employed by the Company or an Affiliate at such time.
(iii) The number of 1.25 RSUs that shall vest upon the occurrence of a Liquidity Event as a result of which the Majority Stockholder achieves both an Individual MoM and a Cumulative MoM of at least 1.25 shall be equal to the sum of (A) the Eligible Percentage of 1.25 RSUs and (B) the 1.25 RSU Prior Eligible Amount, provided that the Participant continues to be Employed by the Company or an Affiliate at such time.
(iv) In addition and separate from the vesting provisions of (b)(ii) and (b)(iii) of this Section, upon the Majority Stockholders receipt of cash proceeds equal to 1.10 times the aggregate purchase price paid by the Majority Stockholders for the Initial Majority Stockholder Shares any unvested 1.10 RSUs shall immediately vest and upon the Majority Stockholders receipt of cash proceeds equal to 1.25 times the aggregate purchase price paid by the Majority Stockholders for the Initial Majority Stockholder Shares any unvested 1.25 RSUs shall immediately vest, in each case provided that the Participant continues to be Employed by the Company or an Affiliate at such time.
(v) For purposes of clarification, in no circumstance will a Participant vest in more than one hundred percent (100%) of the Performance-Based Restricted Stock Units originally granted.
(c) Following the fifth (5th) anniversary of the Grant Date, if an Initial Public Offering of the Company has occurred, Performance-Based Restricted Stock Units that have not previously vested pursuant to Section 5(b) shall vest in the following amounts:
(i) Any unvested 1.10 RSUs shall vest if the stock price of the Company as reported on the principal securities exchange on which shares of Common Stock are then listed achieves and maintains for thirty (30) consecutive calendar days a level which would result in the Majority Stockholders Total Interest divided by the aggregate purchase price paid by the Majority Stockholder for the Initial Majority Stockholder Shares equaling 1.10 or above.
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(ii) Any unvested 1.25 RSUs shall vest if the stock price of the Company as reported on the principal securities exchange on which shares of Common Stock are then listed achieves and maintains for thirty (30) consecutive calendar days a level which would result in the Majority Stockholders Total Interest divided by the aggregate purchase price paid by the Majority Stockholder for the Initial Majority Stockholder Shares equaling 1.25 or above.
5.3 Accelerated Vesting on a Qualifying Termination.
(a) In the event that the Participant experiences a Qualifying Termination, the Time-Based Restricted Stock Units shall satisfy the Time-Based Vesting Condition as of the date of the Qualifying Termination.
(b) In the event the Company terminates the Participants Employment other than for Cause, death, or Disability or the Participant terminates Employment for Good Reason, prior to January 1, 2015, (i) any unvested Time-Based Restricted Stock Units then held by the Participant that would have vested under Section 5.1 of this Agreement had Participant remained Employed through on January 1, 2015 shall satisfy the Time-Based Vesting Condition as of the date of termination of the Participants termination of Employment and (ii) the remaining unvested Restricted Stock Units shall expire on the date the Participants Employment is terminated pursuant to Section 9 hereof.
(c) Notwithstanding anything in the Plan to the contrary, for purposes of Section 5.3(b) and Section 7.4(b) of this Agreement, Good Reason shall be defined as in the Amended and Restated Employment Agreement, by and between Biomet, Inc. and the Participant, dated as of January 14, 2013; provided that any termination of employment by the Participant prior to January 1, 2014 may not be treated as a termination for Good Reason under clause (iv) of the definition thereof.
6. Settlement.
6.1 Settlement Date: Time-Based Restricted Stock Units. Time-Based Restricted Stock Units that have satisfied the Time-Based Vesting Condition set forth in Section 5.1 above (including pursuant to Section 5.3(b) of this Agreement) shall fully vest upon satisfaction of an additional settlement vesting condition set forth herein (the Additional Settlement Condition) and be settled on (A) the earlier of either (i) a Change of Control that constitutes a change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation within the meaning of Section 409A of the Code, (ii) an Initial Public Offering that occurs on or before the sixth (6th) anniversary of the Grant Date, or (iii) the termination of the Participants Employment by reason of death or Disability or (B) a Qualifying Termination of Participant (the Time-Based Settlement Date). As soon as reasonably practicable following the Time-Based Settlement Date and in no event later than March 15 of the calendar year following the year in which the Time-Based Settlement Date occurs, the Company shall transfer to the Participant or Permitted Transferee, in full and complete satisfaction of all of the obligations of the Company and the rights of the Participant or Permitted Transferee in respect of such Time-Based Restricted Stock Units, a number of shares of Common Stock, registered in the Participants or Permitted
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Transferees name, equal to the number of such Time-Based Restricted Stock Units that are settled on and as of the Time-Based Settlement Date. Notwithstanding anything to the contrary in the Plan or this Agreement, with respect to an Initial Public Offering in (A)(ii) of this Section 6.1, if Companys Biomet 3i dental business (3i) separates from Biomet, Inc. in a tax-free spin-off (the Spin), any Restricted Stock Units that become restricted stock units of 3i shall settle on an Initial Public Offering of 3i and Restricted Stock Units that remain Restricted Stock Units of the Company shall settle on an Initial Public Offering of the Company or Biomet Inc. For the avoidance of doubt, upon termination of employment for any reason, the Participant shall not forfeit those Time-Based Restricted Stock Units that have satisfied the Time-Based Vesting Condition at the time of such termination, and such Time-Based Restricted Stock Units shall be settled by delivery of shares of Common Stock as soon as reasonably practicable following the Time-Based Settlement Date (and in no event later than March 15 of the calendar year following the year in which the Time-Based Settlement Date occurs).
6.2 Settlement Date: Performance-Based Restricted Stock Units. Performance-Based Restricted Stock Units that vest upon achievement of the applicable targets as set forth in Section 5 of this Agreement shall be settled as soon as reasonably practicable following the applicable Vesting Date, and in no event later than March 15 of the calendar year following the year in which the Vesting Date occurs (the Performance-Based Settlement Date). Upon settlement, the Company shall transfer to the Participant or Permitted Transferee, in full and complete satisfaction of all of the obligations of the Company and the rights of the Participant or Permitted Transferee in respect of such Performance-Based Restricted Stock Units, a number of shares of Common Stock, registered in the Participants or Permitted Transferees name, equal to the number of such Performance-Based Restricted Stock Units that are settled on and as of the Performance-Based Settlement Date.
6.3 Conditions to Settlement. On or before the transfer of any shares of Common Stock in settlement of vested Restricted Stock Units and as a condition to the Participants or Permitted Transferees right to receive any shares of Common Stock, the Participant or Permitted Transferee shall be required to enter into (or shall have previously entered into) the Management Stockholders Agreement with respect to the shares of Common Stock to be transferred upon such settlement, provided that the Management Stockholders Agreement is in effect at such time. The shares of Common Stock so transferred shall be deemed to be Rollover Shares for purposes of Section 3(b) of the Management Stockholders Agreement. In the event that the Participant or Permitted Transferee does not so enter into the Management Stockholders Agreement, if in effect at such time, the Participant or Permitted Transferee shall forfeit all vested Restricted Stock Units and the vested Restricted Stock Units shall be cancelled without any consideration therefor.
6.4 Condition to Settlement; Satisfaction of Withholding Taxes.
(a) In General. Whenever shares of Common Stock are to be issued to the Participant or Permitted Transferee in settlement of vested Restricted Stock Units, the Participant or Permitted Transferee shall remit to the Company an amount in cash, by wire transfer of immediately available funds or certified check, sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding requirements.
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(b) Alternative Methods to Satisfy Withholding Taxes. The Participant or Permitted Transferee may pay up to the minimum statutory tax withholding amount due in respect of any settlement of vested Restricted Stock Units by instructing the Company to withhold shares of Common Stock that would otherwise be issued to the Participant or Permitted Transferee in connection with such settlement of vested Restricted Stock Units.
(c) Notwithstanding the foregoing, the aggregate amount of such cash or the Fair Market Value of any shares of Common Stock withheld, in either case, as of the date of settlement of the Restricted Stock Units, must be equal to the full minimum statutory tax withholding amount payable by the Participant or Permitted Transferee in connection with such settlement. No tax amount in excess of the minimum amount required to be withheld under the applicable statutory tax provisions then in effect may be satisfied by the Participant or Permitted Transferee by having shares of Common Stock withheld. Any shares of Common Stock withheld to satisfy the Participants or Permitted Transferees minimum statutory tax withholding obligations will be valued at the Fair Market Value of such shares of Common Stock on the Settlement Date.
7. Management Dividend Awards. The amount of cash payable with respect to each Vested Restricted Stock Unit shall be determined as set forth below.
7.1 Vesting of Management Dividend Awards. On each of the Grant Date and the twelve (12), twenty-four (24), thirty (30), thirty-six (36), forty-two (42), forty-eight (48), fifty-four (54) and sixty (60) month anniversaries of the Grant Date, the number of Management Dividend Awards which equals the number of Time-Based Restricted Stock Units which satisfy or have satisfied the Time-Based Vesting Condition on such date shall also immediately vest.
7.2 Amount of Management Dividend Award. The amount of cash payable with respect to each vested Management Dividend Award shall be determined on each annual anniversary of the Grant Date until the earlier of (i) an Initial Public Offering and (ii) the fifth anniversary of the Grant Date (each such anniversary, a Management Dividend Award Payment Date). On (a) the Management Dividend Award Payment Date occurring on the first anniversary of the Grant Date, the amount of cash payable with respect to each vested Management Dividend Award shall be $0.75, and (b) any Management Dividend Award Payment Date occurring thereafter, the amount of cash payable with respect to each vested Management Dividend Award shall be $0.50, in each case subject to applicable tax withholdings (each, a Management Dividend Payment Amount).
7.3 Payment of Management Dividend Payment Amounts. Each Management Dividend Payment Amount shall be paid as soon as practicable following the applicable Management Dividend Award Payment Date, and in no event more than two and a half months following the end of the year in which the Management Dividend Award Payment Date occurs.
7.4 Forfeiture and Termination of Management Dividend Awards.
(a) Subject to Section 7.4(b) below, in the event that the Participants Employment is terminated for any reason, each Management Dividend Award held by such
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Participant shall be forfeited immediately without the payment of any additional consideration to the Participant and no further rights of the Participant in respect thereof, subject to the Companys obligation to pay any Management Dividend Payment Amount that accrued in respect of such Management Dividend Award prior to the forfeiture date for any termination other than a termination of Employment by the Company for Cause. In addition, upon the earlier to occur of (a) settlement or other expiration or termination of the corresponding vested Restricted Stock Unit and (b) the day after the fifth anniversary of the Grant Date, the related Management Dividend Award will automatically terminate without the payment of any additional consideration to the Participant and no further rights of the Participant in respect thereof, subject to the Companys obligation to pay any Management Dividend Payment Amount that accrued in respect of such Management Dividend Award prior to the termination date so long as the Participant remains Employed through the applicable payment date or his or her Employment is terminated other than by the Company for Cause.
(b) Upon the occurrence of the Participants Eligible Termination (as defined below) prior to the Management Dividend Award Payment Date in the year of termination, the Participant will be entitled to receive a Management Dividend Payment Amount (paid at the same time Management Dividend Award Payments are made to other employees for such year) with respect to a number of Management Dividend Awards equal to the number of Time-Based Restricted Stock Units vested and outstanding as of the Participants termination date, regardless of whether the Participant was Employed on the Management Dividend Award vesting date(s) or on the Management Dividend Award Payment Date for such year. The Participant shall have no entitlement to any Management Dividend Award Payment Amount paid in respect of any year subsequent to the year in which Participants Employment terminates. An Eligible Termination shall mean (a) for periods prior to January 1, 2015, the Participants Employment is terminated by the Company other than for Cause, death or Disability or by him for Good Reason, and (b) for periods on or after January 1, 2015 and prior to July 31, 2017, the Participants Employment is terminated by the Company other than for Cause, death or Disability or by the Participant for any reason.
8. Adjustment.
8.1 Adjustments in connection with Spin. Notwithstanding anything to the contrary set forth in the Plan or this Agreement, in the event that the Spin occurs prior to December 31, 2013 the Board shall make such adjustments as it in good faith considers appropriate to effectuate the Companys business purposes in causing the Spin to occur and that are equitable to Participants, including without limitation adjustment to the number, type or issuer of shares of stock subject to some or all of the Restricted Stock Units outstanding on the date the Spin occurs; substitution of cash or other property for the Common Stock subject to such Restricted Stock Units; or change in any performance-based vesting or other conditions applicable to such Restricted Stock Units. For the avoidance of doubt, in making any such adjustments the Board need not adjust Restricted Stock Units held by different Participants nor Restricted Stock Units held by a single Participant in a uniform manner.
8.2 Other Adjustments. Except as provided in Section 8.1, the Restricted Stock Units shall be subject to adjustment as set forth in Section 4.7 of the Plan, provided that (i) adjustments set forth in Section 4.7(a) of the Plan shall be mandatory, and (ii) the adjustment to
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be made in connection with a cash dividend or distribution shall be made in the same manner as the adjustment made to all or substantially all Restricted Stock Units granted under the Plan to employees on substantially the same terms and conditions as apply to the Restricted Stock Units granted to Participant pursuant to this Agreement.
9. Expiration Date. Unless otherwise determined by the Board, each Time-Based Restricted Stock Unit that has not yet satisfied the Time-Based Vesting Condition and each Performance-Based Restricted Stock Unit that has not yet become vested on the earlier of (i) the date the Participants Employment is terminated for any reason (after giving effect to any acceleration pursuant to Section 5.3 hereof) or (ii) the date on which all of the Initial Majority Stockholder Shares have been sold by the Majority Stockholders, shall expire on such date. Each Management Dividend Award shall automatically expire in accordance with the terms of Section 7.4.
10. Registration. The Company shall be under no obligation to effect the registration pursuant to the Securities Act of any shares of Common Stock to be issued pursuant to the Plan or to effect similar compliance under any state laws. Notwithstanding anything in this Agreement or the Plan to the contrary, the Company shall not be obligated to cause to be issued or deliver any shares of Common Stock pursuant to this Plan unless and until the Company is advised by its counsel that the issuance and delivery of such shares of Common Stock is in compliance with all applicable laws, regulations of governmental authority and the requirements of any securities exchange on which such shares of Common Stock are traded. The Company may require, as a condition to the issuance or delivery of any shares of Common Stock pursuant to the terms of this Agreement or the Plan, that the Participant make such covenants, agreements and representations as the Company deems necessary or advisable.
11. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or default of any party under this Restricted Stock Unit Grant Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Restricted Stock Unit Grant Agreement, or any waiver on the part of any party or any provisions or conditions of this Restricted Stock Unit Grant Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
12. Non-Transferability of Restricted Stock Units. The Participant or Permitted Transferee may not Transfer the any Restricted Stock Unit granted pursuant to this Agreement except as expressly provided in Section 4.4 of the Plan.
13. Taxes. The Participant or Permitted Transferee shall be responsible for any and all taxes incurred by him under or in connection with this Agreement.
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14. Representations.
14.1 Participant Representations. The Participant hereby represents and warrants to the Company that: (a) the shares of Common Stock are being acquired for his own account, for investment purposes only and not with a view to or in connection with any distribution, reoffer, resale, public offering or other disposition thereof not in compliance with the Securities Act and the rules and regulations thereunder and any applicable United States federal or state securities laws or regulations; (b) the Participant is an accredited investor as defined in Rule 501(a) under the Securities Act; provided, that the Company may, in its discretion and subject to compliance with all applicable securities laws, waive the foregoing representation with respect to a limited number of Participants; (c) the Participant, alone or together with his representatives, possesses such expertise, knowledge, and sophistication in financial and business matters generally, and in the type of transactions in which the Company proposes to engage in particular; (d) the Participant has had access to all of the information with respect to his shares of Common Stock that he or it, as the case may be, deems necessary to make a complete evaluation thereof and has had the opportunity to question the Company concerning such Shares of Common Stock; (e) the Participants decision to acquire his Shares of Common Stock for investment has been based solely upon the evaluation made by the Participant; (f) the Participant has duly executed and delivered this Agreement; and (g) the Participants authorization, execution, delivery, and performance of this Agreement do not conflict with any other agreement or arrangement to which the Participant is a party or by which it is bound.
14.2 Truth of Representations and Warranties. The Participant represents and warrants that all of his representations set forth in Section 14.1 of this Agreement are true and correct as of the date hereof.
15. Integration. This Agreement and the other documents referred to herein or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter and shall not be amended except by written amendment signed by all parties. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth in such documents. This Restricted Stock Unit Grant Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to the subject matter hereof.
16. Counterparts. This Restricted Stock Unit Grant Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
17. Governing Law. This Restricted Stock Unit Grant Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to the provisions thereof governing conflict of laws.
18. Participant Acknowledgment.
18.1 The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges that all decisions, determinations and interpretations of the
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Board in respect of the Plan, this Restricted Stock Unit Grant Agreement and the Restricted Stock Unit shall be final and conclusive.
18.2 By signing below and accepting the Restricted Stock Unit Grant, the Participant hereby acknowledges and agrees that the Former Plan has been terminated, that the Former Plan Restricted Stock Units have been cancelled in connection with such termination, the Participant has no further rights or entitlements pursuant to the Former Plan and the Former Plan Restricted Stock Units and that the Board has made a grant of the Restricted Stock Units pursuant to this Agreement in full satisfaction of any rights under the Former Plan Restricted Stock Units.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Company has caused this Restricted Stock Unit Grant Agreement to be duly executed by its duly authorized officer and said Participant has signed this Restricted Stock Unit Grant Agreement on his own behalf, thereby representing that he has carefully read and understands this Restricted Stock Unit Grant Agreement and the Plan as of the day and year first written above.
LVB Acquisition, Inc. | Participant | |||||||
/s/ Bradley J. Tandy |
/s/ Jeffrey R. Binder | |||||||
By: | Bradley J. Tandy | By: | Jeffrey R. Binder | |||||
Title: | Senior Vice President, | |||||||
General Counsel and Secretary | Date: | January 14, 2013 |
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Exhibit 10.3
EXECUTION VERSION
AMENDED AND RESTATED STOCK OPTION GRANT AGREEMENT
(Non-Qualified Stock Options)
THIS AMENDED AND RESTATED AGREEMENT is made as of this 14th day of January, 2013 by and between LVB Acquisition, Inc. (the Company) and Jeffrey R. Binder (the Participant).
WHEREAS, the Company has adopted and maintains the LVB Acquisition, Inc. Management Equity Incentive Plan, as amended, (the Plan) to promote the interests of the Company and its Affiliates and stockholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of and provide services for the Company or its Affiliates and to improve the growth and profitability of the Company;
WHEREAS, the Plan provides for the Grant to Participants in the Plan of Non-Qualified Stock Options to purchase shares of Common Stock of the Company;
WHEREAS, the Company and the Participant entered into that certain Stock Option Grant Agreement dated as of July 31, 2012, as amended (the Prior Agreement);
WHEREAS, Section 4.12 of the Plan provides that the Board of Directors of the Company may, in its discretion, amend the Plan or the terms of any Stock Option;
WHEREAS, the Company and the Participant desire to amend and restate the Prior Agreement to provide certain benefits upon termination of employment;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Grant of Options. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant a NON-QUALIFIED STOCK OPTION (the Option) with respect to 4,200,000 shares of Common Stock of the Company. Fifty percent (50%) of the Option (representing an Option to purchase 2,100,000 shares) will be a time based Option (the Revised Time Vesting Option), twenty-five percent (25%) of the Option (representing an Option to purchase 1,050,000 shares) will be a time based Option with a longer vesting period than that which applies to the Revised Time Vesting Option (the Replacement Extended Time Vesting Option) and twenty-five percent (25%) of the Option (representing an Option to purchase 1,050,000 shares) will be a performance based Option having the terms set forth in this agreement (the Modified Performance Option). For purposes of the Option, (i) references in the Plan to Options will be deemed to include Revised Time Vesting Options, Replacement Extended Time Vesting Options and Modified Performance Options unless specifically noted to the contrary and (ii) the references in Section 2(y) and Section 2(dd) of the Plan to Performance Based Options shall be construed to refer to Modified Performance Options as defined herein.
2. Grant Date. The Grant Date of the Option hereby granted is July 31, 2012.
3. Incorporation of Plan. Unless stated otherwise, all terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. All capitalized terms used and not defined herein shall have the meaning given to such terms in the Plan.
4. Exercise Price. The exercise price per share of Common Stock underlying the Option hereby granted is $7.88.
5. Vesting Date. The Option shall become exercisable as follows:
a. Revised Time Vesting Option. With respect to the portion of the Option that is a Revised Time Vesting Option:
i. | One Hundred percent (100%) shall be vested as of the Grant Date. |
b. Replacement Extended Time Vesting Option. With respect to the portion of the Option that is an Replacement Extended Time Vesting Option:
i. | Eighty-Five percent (85%) shall be vested as of the Grant Date; and |
ii. | Five percent (5%) shall vest on July 11 in each of calendar years 2013, 2014 and 2015. |
c. Modified Performance Option. With respect to the portion of the Option that is a Modified Performance Option:
i. | Fifty-five percent (55%) shall be vested as of the Grant Date; and |
ii. | Fifteen percent (15%) shall vest on July 11 in each of calendar years 2013, 2014 and 2015 if, as of the end of the Companys most recent fiscal year ending on or prior to such Vesting Date, Biomet, Inc. has achieved the EBITDA target for such fiscal year determined by the Committee, consistent with the annual business plan for such fiscal year, on or before the ninetieth (90th) day of such fiscal year, subject in each case to the Participants continued Employment through each such Vesting Date. |
If any portion of the Modified Performance Option does not vest on the Vesting Date on which it initially becomes eligible to vest in accordance with the vesting provisions set forth above in this sub-section (c) because Biomet, Inc. did not meet the EBITDA target set by the Committee for the relevant fiscal year (any such year, the Below-Target Year), then such portion (the Catch-Up Tranche) shall remain outstanding and shall be eligible to vest as follows:
(A) If Biomet, Inc. exceeds the EBITDA target set by the Committee for the fiscal year immediately following such Below-Target Year (the Catch-Up Year) by an amount large enough so that (I) the sum of Biomet, Inc.s actual
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EBITDA in the Below-Target Year and its actual EBITDA in the Catch-Up Year exceeds (II) the sum of the EBITDA target set by the Committee for the Below-Target Year and the EBITDA target set by the Committee for the Catch-Up Year, then such Catch-Up Tranche will vest as of the Vesting Date that occurs on or next following the last day of the Catch-Up Year.
(B) If either:
(I) After the end of the Below-Target Year, a Liquidity Event occurs in which the Majority Stockholder realizes an MoM that is at least 1.25; or
(II) (a) An Initial Public Offering has occurred, (b) the Majority Stockholder has sold, directly or indirectly, in one or more Liquidity Event(s), 80% or more of the Initial Majority Stockholder Shares (determined based on the number of the Initial Majority Stockholder Shares as of the Closing date) and (c) the Majority Stockholder has realized, directly or indirectly, in such Liquidity Event(s) an MoM that is at least 1.25 (provided that MoM for this purpose shall be determined by multiplying clause (ii) of Section 2(dd) of the Plan by a fraction, the numerator of which is the number of Initial Majority Stockholder Shares disposed of in all such Liquidity Events and the denominator of which is the number of the Initial Majority Stockholder Shares as of the Closing date); provided further that to the extent any such Liquidity Event does not result in the sale, transfer or other disposition of Initial Majority Stockholder Shares, such fraction shall be equitably adjusted by the Board as appropriate to reflect the conversion of equity value into cash in connection with such Liquidity Event;
then any Catch-Up Tranche that remains unvested as of the occurrence of the Liquidity Event shall immediately vest upon the occurrence of the Liquidity Event, provided the Participant remains Employed through such Vesting Date.
d. Accelerated Vesting.
i. | Solely for purposes of the Option, (i) the reference in Section 4.4(b) of the Plan to Time Based Options shall be construed to refer to Revised Time Vesting Options as defined herein, (ii) the reference in Section 4.4(b) of the Plan to Hurdle Options shall be construed to refer to Replacement Extended Time Vesting Options as defined herein and (iii) the reference in Section 4.4(c) of the Plan to Performance Based Options shall be construed to refer to Modified Performance Options as defined herein. |
ii. | If the Company terminates the Participants Employment other than for Cause, death, or Disability or the Participant terminates Employment for Good Reason, prior to January 1, 2015, (i) any |
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unvested Replacement Extended Time Vesting Options then held by the Participant that would have vested under Section 5(b) of this Agreement had Participant remained Employed through January 1, 2015 shall vest immediately as of the date of the Participants termination of Employment and (ii) the remaining unvested Replacement Extended Time Vesting Options shall expire on the date the Participants Employment is terminated pursuant to Section 6 hereof. |
iii. | Notwithstanding anything in the Plan to the contrary, for purposes of this Section 5(d), Good Reason shall be defined as in the Amended and Restated Employment Agreement, by and between Biomet, Inc. and the Participant, dated as of January 14, 2013; provided that any termination of employment by the Participant prior to January 1, 2014 may not be treated as a termination for Good Reason under clause (iv) of the definition thereof. |
6. Expiration Date.
a. Subject to the provisions of the Plan, with respect to the Option or any portion thereof which has not become
exercisable, the Option shall expire on the date the Participants Employment is terminated for any reason, and with respect to any Option or any portion thereof which has become exercisable, the Option shall expire on the earliest to occur of
(i) the commencement of business on the date the Participants Employment is terminated for Cause; (ii) subject to Section 6(b), 30 days following the date the Participant resigns from Employment without Good Reason,
(iii) subject to Section 6(c), 90 days after the date the Participants Employment is terminated by the Company for any reason other than: for Cause, by reason of death or Disability or due to the Participants
resignation from Employment with Good Reason; (iv) one year after the date the Participants Employment is terminated by reason of death or Disability; or (v) the tenth anniversary of the original Grant Date. For the avoidance of
doubt, the Option, or portion thereof, that has become exercisable by a Permitted Transferee on account of the death of a Participant shall expire one year after the date such deceased Participants Employment terminated by reason of death, and
the Option or portion thereof that has been transferred to a Permitted Transferee during the lifetime of a Participant shall expire in connection with the Participants termination of Employment at the time set forth under this
Section 6(a) as if the Option were held directly by the Participant. Notwithstanding the foregoing, in the event that (A) the Participant is employed on the Vesting Date applicable to any portion of his or her Modified Performance Based
Option, (B) the Participants Employment is terminated prior to the time at which the Board determines whether the EBITDA target applicable to such portion of Participants Modified Performance Based Option (and/or the EBITDA target
for any Catch-Up Year) was met and (C) the Board subsequently determines that such EBITDA target was met, then the time period set forth in clause (ii), (iii) or (iv) of the first sentence of this Section 6(a) (as applicable)
shall begin to run with respect to such portion or portions of Participants Modified Performance Based Option as of the date on which the Participant is notified that the Board determined that the relevant EBITDA target was met rather than
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as of the date of termination of Participants Employment. In no event shall the Option remain outstanding after the date set forth in clause (v) of the first sentence of this Section 6(a).
b. If the Participant terminates Employment without Good Reason and his employment could not be terminated by the Company for Cause at such time, then:
i. | In the event that the Participant remains continuously Employed with the Company through January 1, 2014, seventy percent (70%) of the portion of the Participants Option vested as of the date Participant terminates Employment shall remain outstanding until the tenth anniversary of the original Grant Date. |
ii. | In the event that the Participant remains continuously Employed with the Company through July 1, 2014, eighty-five percent (85%) of the portion of the Participants Option vested as of the date Participant terminates Employment shall remain outstanding until the tenth anniversary of the original Grant Date. |
iii. | In the event that the Participant has remained continuously Employed by the Company through January 1, 2015, one hundred percent (100%) of the portion of the Participants Option vested as of the date Participant terminates Employment shall remain outstanding until the tenth anniversary of the original Grant Date. |
c. If the Company terminates the Participants Employment other than for Cause, death, or Disability or the Participant terminates Employment for Good Reason, one hundred percent (100%) of the portion of the Participants Option vested as of the date Participant terminates Employment shall remain outstanding until the tenth anniversary of the original Grant Date.
7. Construction of Agreement. Any provision of this Agreement (or portion thereof) which is deemed invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and subject to this section, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions thereof in such jurisdiction or rendering that or any other provisions of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant shall be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable. No waiver of any provision or violation of this Agreement by the Company shall be implied by the Companys forbearance or failure to take action. No provision of this Agreement shall be given effect to the extent that such provision would cause any tax to become due under Section 409A of the Code; provided that the Company shall use commercially reasonable efforts to put the Participants in the same position in which they would have been but for the application of this Section 7.
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8. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
9. Limitation on Transfer. The Option shall be exercisable only by the Participant or the Participants Permitted Transferee(s), as determined in accordance with the terms of the Plan (including without limitation the requirement that the Participant obtain the prior written approval by the Board of any proposed Transfer to a Permitted Transferee during the lifetime of the Participant). Each Permitted Transferee shall be subject to all the restrictions, obligations, and responsibilities that apply to the Participant under the Plan and this Stock Option Grant Agreement and shall be entitled to all the rights of the Participant under the Plan, provided that in respect of any Permitted Transferee which is a trust or custodianship, the Option shall become exercisable and/or expire based on the Employment and termination of Employment of the Participant. All shares of Common Stock obtained pursuant to the Option granted herein shall not be transferred except as provided in the Management Stockholders Agreement.
10. Restrictive Covenants.
a. Confidentiality and Trade Secrets. By accepting an award under the Plan, Participant agrees to hold in strict confidence any proprietary or Confidential Information related to the Company and its Affiliates. For purposes of this Agreement, the term Confidential Information shall mean all information of the Company or any of its Affiliates (in whatever form) which is not generally known to the public, including without limitation any inventions, processes, methods of distribution, customer lists, customers secrets or Trade Secrets. For purposes of this Agreement, Trade Secrets shall mean all Confidential Information, including, without limitation, formulae, patterns, compilations, programs, devices, methods, techniques, or processes, from which the Company or any of its Affiliates derives independent economic value, actual or potential, because such information is not generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and which the Company and its Affiliates make reasonable efforts to maintain secret.
b. Non-Competition. Participant agrees that the Company would likely suffer significant and irreparable harm from Participants competing with the Company or any of its Subsidiaries during the Participants Employment and for some period of time thereafter. Accordingly, by accepting an award under the Plan, Participant agrees that he or she will not, during Participants Employment and for a period of twelve (12) months following termination of his or her Employment, directly or indirectly perform Competitive Services (as defined below) for any person, firm, partnership, corporation, or other entity which develops, manufactures, markets, distributes, or sells products
6
materially similar to or competitive with those products developed, manufactured, marketed, distributed, or sold by the Company or any of its Subsidiaries or included in the business plans of the Company or any of its Subsidiaries during the term of Participants Employment (any such person, firm, partnership, corporation, or other entity, a Competitor). For purposes of this Agreement, Competitive Services means services provided to a Competitor: (A) which are substantially similar to those provided by Participant to the Company or any of its Subsidiaries during his or her employment with the Company or any of its Subsidiaries; (B) where Participants direct or indirect use or disclosure of the Companys or any of its Affiliates Confidential Information or Trade Secrets to or on behalf of the Competitor would provide the Competitor with a competitive advantage; (C) where it is likely that as part of Participants capacity he or she would inevitably use or disclose any of the Companys or any of its Affiliates Confidential Information or Trade Secrets; (D) where Participant solicits, attempts to solicit, or engages in discussions or other communications with any past, present or potential customer of the Company or any of its Subsidiaries with whom Participant communicated or had any interaction during the preceding eighteen (18) months with the purpose or intent of promoting, marketing, selling, or obtaining orders for any Competing Product; or (E) where Participant interferes adversely with any past, present, or prospective business relationships between the Company or any of its Subsidiaries and any of their respective customers, potential customers, suppliers, distributors, agents, sales representatives, employees, independent contractors, or other persons or entities with which the Company or any of its Subsidiaries conducts business. For purposes of this Agreement, Competing Product means any musculoskeletal or any other product developed, manufactured, marketed, distributed, sold or intended to be sold by the Company or any of its Subsidiaries and with which the Participant worked or was otherwise involved during the last two (2) years of Participants Employment.
c. Non-Solicitation. Participant agrees that the Company would likely suffer significant and irreparable harm from Participants solicitation of employees, distributors, distributors sales representatives, sales representatives, customers, suppliers or vendors of the Company or any of its Subsidiaries during the Participants Employment and for some period of time thereafter. Accordingly, by accepting an award under the Plan, Participant agrees that he or she will not, during Participants Employment and for a period of twelve (12) months following termination of his or her Employment, whether on his or her own behalf or on behalf of any other Person, either directly or indirectly (i) hire, solicit, induce, persuade, or entice, or endeavor to solicit, induce, persuade, or entice any person who is then employed by or otherwise engaged to perform services for the Company or any of its Subsidiaries to leave that employment or cease performing those services, (ii) solicit, induce, persuade, or entice, or endeavor to solicit, induce, persuade, or entice any Person who is a past or current customer, supplier, or vendor of the Company or any of its Subsidiaries to cease being a customer, supplier, or vendor of the Company or any of its Subsidiaries or to divert all or any part of such Persons business from the Company or any of its Subsidiaries or (iii) solicit, induce, persuade, or entice, or endeavor to solicit, induce, persuade, or entice any distributor, sales representative or associate of the Company or any of its Subsidiaries to terminate their relationship or association with the Company or any of its Subsidiaries or distributors, or do any act which may result in the impairment of the relationship between the Company or any of
7
its Subsidiaries and their respective agents, employees, consultants, representatives or distributors.
d. Companys Remedies for Violation of Non-Competition or Non-Solicitation Covenant. In the event that either the Participants Employment with the Company is terminated for Cause or the Participant violates any of the restrictive covenants set forth in Section 10(a), Section 10(b) or Section 10(c):
i. | All Options held by such Participant, whether vested or unvested, shall be immediately canceled as of the commencement of business on the date on which the Participants Employment is terminated for Cause or the first date on which such violation occurs; |
ii. | In either case prior to the Agreement Termination Date, the Company (or its designated assignee) shall have (A) the call rights, with respect to shares of Common Stock held by the Participant (including shares acquired through the exercise of Options under the Plan), that are set forth in Section 3(b)(ii)(A) of the Management Stockholders Agreement and (B) the right to receive from the Participant the payments described in Section 3(b)(v) of the Management Stockholders Agreement (if any); and |
iii. | In either case, following the Agreement Termination Date, the Participant shall be obligated to pay to the Company as liquidated damages, in addition to all other rights and remedies the Company may have, an amount equal to the amount which the Participant will be required to recognize in income for U.S. federal income tax purposes as a result of such Participants exercise of Options at any time following, or within one year prior to, the date of termination of his or her Employment. |
e. Remedies. Except as provided in Section 10(f), the Companys sole recourse under the Plan against the Participant for any violation by the Participant of any of the restrictive covenants set forth in Section 10(b) or Section 10(c) shall be the rights and remedies described in Section 10(d). The Companys rights under Section 10(d) shall be in addition to, and shall not in any way prejudice the Company with respect to, any other rights and remedies the Company may have in the event of any violation by the Participant of the restrictive covenants set forth in Section 10(a).
f. Payment for Compliance with Non-Competition and Non-Solicitation Covenants.
i. | The Participant hereby agrees that if his or her Employment with the Company is terminated for any reason: (i) the Company shall have the right (which it may exercise or not exercise in its sole discretion in accordance with Section 10(f)(ii) hereof) to |
8
(A) continue paying the Participant his or her base salary (as in effect on the date of termination of the Participants Employment), in accordance with the Companys normal payroll practices, for a period not to exceed twelve (12) months following the date of termination of the Participants Employment (the Salary Continuation Period) and (B) pay the Participant an amount equal to the product of (x) the lesser of the annual bonus the Participant received for the year immediately preceding the year in which the Participants employment is terminated (if any) or the Participants target annual bonus for the year in which the Participants employment is terminated (if any) and (y) a fraction, the numerator of which is the number of whole calendar months in the Salary Continuation Period and the denominator of which is twelve (12), which amount shall be paid in installments over the course of the Salary Continuation Period in accordance with the Companys normal payroll practices (such salary and bonus payments, the Participants Non-Compete Compensation) and (ii) during the Salary Continuation Period (if any), the Participant shall be bound by, and shall comply with the provisions of, Section 10(b) and Section 10(c) hereof. The Companys rights under this Section 10(f) shall be in addition to, and shall not in any way prejudice the Company with respect to, its rights under Section 10(d) hereof. For the avoidance of doubt, the Participant shall remain bound by the provisions of Section 10(a) hereof regardless of whether or not the Company exercises its rights under this Section 10(f). |
ii. | In the event that a Participants Employment is terminated by the Participant or the Company as described in Section 10(f)(i) hereof, the Company automatically shall be deemed to exercise its rights under this Section 10(f) and the Salary Continuation Period for such Participant shall be deemed to be twelve (12) months following the date of termination of the Participants Employment, unless the Company notifies the Participant, within thirty (30) business days following the effective date of termination of the Participants Employment, either that it will not exercise its rights under this Section 10(f) or that the length of the Salary Continuation Period for such Participant shall be less than twelve (12) months. |
iii. | The Company in its sole discretion may elect, at any time during the Salary Continuation Period, to discontinue the Salary Continuation Period by notifying the Participant in writing at least thirty (30) business days prior to the date on which the Salary Continuation Period will terminate. If the Company elects to discontinue the Salary Continuation Period as described in the preceding sentence, then the Participant shall cease to be bound by |
9
the provisions of Section 10(b) and Section 10(c) hereof as of the date on which the Salary Continuation Period terminates. |
iv. | Notwithstanding anything in the Plan or this Agreement to the contrary, in the event that the Participant violates any provision of Section 10(b) or Section 10(c) during the Salary Continuation Period, (A) the Company shall immediately cease paying the Participant the Non-Compete Compensation and (B) the Participant shall nonetheless remain bound by the provisions of Section 10(b) and Section 10(c) hereof for the remainder of the period during which he or she would have been bound by such obligations if no such violation had occurred. |
g. The restrictive covenants set forth in Sections 10(a), 10(b) and 10(c) hereof shall be in addition to, and nothing in this Section 10 (including, without limitation, the Companys rights under Section 10(f) hereof and any election by the Company to exercise or not exercise such rights) shall in any way prejudice the Companys rights with respect to, any restrictive covenants and confidentiality obligations (or similar restrictions and obligations) in favor of the Company which are applicable to the Participant by law, in equity, or under any other plan, program, agreement or arrangement with the Company (including, without limitation, the Participants common law obligations with respect to the Companys confidential information).
h. The Participant recognizes that a breach or threatened breach of the restrictive covenants set forth in Sections 10(a), 10(b) and 10(c) hereof may give rise to irreparable injury to the Company, inadequately compensable in damages. Accordingly, the Participant agrees that in the event of a breach or threatened breach of the restrictive covenants set forth in Section 10(a) hereof or, during the Salary Continuation Period (if any), Section 10(b) or Section 10(c) hereof, the Company may seek and obtain injunctive relief, temporary, preliminary or permanent, against such breach or threatened breach, in addition to recovering any monetary damages from the Participant. The Participant further agrees and acknowledges that greater injury would likely result by refusing the Company or its successors or assigns injunctive relief than by granting such injunctive relief. The Participant hereby waives any right to require the Company to obtain a bond in connection with any such injunctive proceedings. The Company shall also be entitled to recover from the Participant its reasonable attorneys fees and costs of any action that it successfully brings against the Participant for any breach or threatened breach described in this Section 10(h).
i. The restrictive covenants set forth in this Section 10 shall be binding upon, and shall inure to the benefit of, the Company, its Affiliates and their respective successors and assigns. By accepting an award under the Plan, the Participant agrees that the Company shall have the right to assign any or all of its rights hereunder to any successor in interest, whether by merger, consolidation, sale of assets, public offering, or otherwise.
10
j. Notwithstanding anything to the contrary in the Plan or this Agreement, the construction, enforceability and interpretation of this Section 10 shall be governed by the laws of the state in which the Participants employer operates its principal place of business. Except as expressly provided herein, the failure of the Company to insist upon performance of any of the provisions of this Section 10 or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights. The Participant further agrees that any legal action relating to this Section 10 shall be commenced and maintained exclusively before any appropriate venue located in the local, county or federal court in which the Participants employer operates its principal place of business. Participants hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts.
11. Transfer and Lock-Up of Shares. If the Company files a registration statement registering shares held by the Majority Stockholder in an Initial Public Offering or any secondary registered equity offering, then, in addition to the terms and conditions set forth in the Management Stockholders Agreement, the Participant or his or her Permitted Transferee shall not, following expiration of the Lock-Up Period (as defined in the Management Stockholders Agreement), sell more than one-third (1/3) of the shares of such Participants or Permitted Transferees Common Stock acquired pursuant to the exercise of the Option during the twelve (12) months following such expiration or more than two-thirds (2/3) of the shares of such Participants or Permitted Transferees Common Stock acquired pursuant to the exercise of the Option during the twenty-four (24) months following such expiration; provided that if the Lock-Up Period expires less than three (3) years prior to the tenth anniversary of the original Grant Date (such period of time, the Remaining Period), such Participant or Permitted Transferee may sell up to one-third (1/3) of the shares of such Participants or Permitted Transferees Common Stock acquired pursuant to the exercise of the Option during the first third of the Remaining Period, up to two-thirds (2/3) of such shares during the second third of the Remaining Period and all of such shares during the remaining third of the Remaining Period.
12. Adjustment. Notwithstanding anything to the contrary set forth in the Plan or this Agreement, in the event that the Companys Biomet 3i dental business (3i) separates from Biomet, Inc. in a tax-free spin-off (the Spin) prior to December 31, 2013, the Board shall make such adjustments as it in good faith considers appropriate to effectuate the Companys business purposes in causing the Spin to occur and that are equitable to Participants, including without limitation adjustment to the number, type or issuer of shares of stock subject to some or all of the Options outstanding on the date the Spin occurs; substitution of cash or other property for the Common Stock subject to such Options; or change in any performance-based vesting or other conditions applicable to such Options. For the avoidance of doubt, in making any such adjustments the Board need not adjust Options held by different Participants nor Options held by a single Participant in a uniform manner.
13. Integration. This Agreement, and the other documents referred to herein or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Plan. The Participant hereby
11
acknowledges that this Agreement, the Plan and the Management Stockholders Agreement supersede all prior agreements and understandings between the parties with respect to the subject matter of this Agreement, including without limitation, any provision in such prior agreement or understanding, including without limitation any change of control agreement, that provides for the acceleration or waiver of any time periods, conditions or contingencies relating to the exercise or realization of, or lapse of restrictions under, any outstanding equity award held by the Participant.
14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
15. Governing Law. Except as expressly provided in Section 10(j) hereof, this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to the provisions governing conflict of laws.
16. Participant Acknowledgment. The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges that all decisions, determinations and interpretations of the Board in respect of the Plan, this Agreement and the Option shall be final and conclusive. The Participant further acknowledges that, prior to the Agreement Termination Date, no exercise of the Option or any portion thereof shall be effective unless and until the Participant has executed the Management Stockholders Agreement and the Participant hereby agrees to be bound thereby. Notwithstanding the foregoing, any determination made by the Board relating to the characterization of the Participants termination of Employment shall be subject to a de novo standard of review.
17. Modifications. To the extent that the Company modifies the expiration date, or offers to all or substantially all active employees of the Company and its Affiliates the opportunity to modify the expiration date, of all or substantially all Options granted under the Plan to employees on substantially the same terms and conditions as apply to the Option granted to Participant pursuant to this Agreement (Similar Options) at any time, whether through amendment of the Plan and/or Stock Option Grant Agreements, an exchange offer or otherwise, the expiration date of the Option granted to Participant pursuant to this Agreement shall likewise be modified at such time or shall be eligible for modification without regard to any other additions or modifications to the terms and conditions applicable to such Similar Options; provided further that no modification will be made if it would violate any applicable laws or result in tax becoming due under Section 409A of the Code.
[Signature page follows]
12
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly authorized officer and said Participant has hereunto signed this Agreement on his own behalf, thereby representing that he has carefully read and understands, and agrees to be bound by, this Agreement, the Plan and the Management Stockholders Agreement as of the day and year first written above.
LVB Acquisition, Inc. | Participant | |||||||
/s/ Bradley J. Tandy |
/s/ Jeffrey R. Binder | |||||||
By: | Bradley J. Tandy | By: | Jeffrey R. Binder | |||||
Title: | Senior Vice President, | |||||||
General Counsel and Secretary | Date: | January 14, 2013 |
13
Exhibit 31.1
CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Jeffrey R. Binder, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q for the quarterly period ended November 30, 2012 (the report) of LVB Acquisition, Inc. and Biomet, Inc. (collectively, the Company);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
4. The Companys other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for the Company and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the Companys disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report, based on such evaluation; and
d) Disclosed in this report any change in the Companys internal control over financial reporting that occurred during the Companys most recent fiscal quarter (the Companys fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting; and
5. The Companys other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Companys auditors and the audit committee of the Companys board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal control over financial reporting.
January 14, 2013
/S/ JEFFREY R. BINDER |
Jeffrey R. Binder |
President and Chief Executive Officer |
Exhibit 31.2
CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Daniel P. Florin, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q for the quarterly period ended November 30, 2012 (the report) of LVB Acquisition, Inc. and Biomet, Inc. (collectively, the Company);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
4. The Companys other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for the Company and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the Companys disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report, based on such evaluation; and
d) Disclosed in this report any change in the Companys internal control over financial reporting that occurred during the Companys most recent fiscal quarter (the Companys fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting; and
5. The Companys other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Companys auditors and the audit committee of the Companys board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal control over financial reporting.
January 14, 2013
/S/ DANIEL P. FLORIN |
Daniel P. Florin |
Senior Vice President and Chief Financial Officer |
Exhibit 32.1
SECTION 1350 CERTIFICATIONS OF CHIEF EXECUTIVE OFFICER
AND CHIEF FINANCIAL OFFICER
The undersigned, the Chief Executive Officer and the Chief Financial Officer of LVB Acquisition, Inc. and Biomet, Inc. (collectively, the Company), each hereby certifies pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to his knowledge on the date hereof:
(a) The Quarterly Report on Form 10-Q of the Company for the Quarter Ended November 30, 2012 filed on the date hereof with the Securities and Exchange Commission (the Report) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(b) Information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
January 14, 2013 | /S/ JEFFREY R. BINDER | |||||
Jeffrey R. Binder | ||||||
President and Chief Executive Officer |
January 14, 2013 | /S/ DANIEL P. FLORIN | |||||
Daniel P. Florin | ||||||
Senior Vice President and Chief Financial Officer |
The foregoing certification is being furnished to the Securities and Exchange Commission as an exhibit to the Form 10-Q and shall not be deemed to be considered filed as part of the Form 10-Q.
Segment Reporting - Net Sales by Product Category (Detail) (USD $)
In Millions, unless otherwise specified |
3 Months Ended | 6 Months Ended | ||
---|---|---|---|---|
Nov. 30, 2012
|
Nov. 30, 2011
|
Nov. 30, 2012
|
Nov. 30, 2011
|
|
Net sales by product: | ||||
Net sales | $ 790.1 | $ 725.1 | $ 1,497.5 | $ 1,389.7 |
Large Joint Reconstructive [Member]
|
||||
Net sales by product: | ||||
Net sales | 444.2 | 439.5 | 837.2 | 836.5 |
S.E.T. [Member]
|
||||
Net sales by product: | ||||
Net sales | 152.2 | 87.3 | 279.5 | 169.1 |
Spine & Bone Healing [Member]
|
||||
Net sales by product: | ||||
Net sales | 74.3 | 75.4 | 152.2 | 150.0 |
Dental [Member]
|
||||
Net sales by product: | ||||
Net sales | 67.1 | 73.6 | 124.1 | 132.9 |
Other Products [Member]
|
||||
Net sales by product: | ||||
Net sales | $ 52.3 | $ 49.3 | $ 104.5 | $ 101.2 |
Derivative Instruments and Hedging Activities - Additional Information (Detail)
In Millions, unless otherwise specified |
6 Months Ended | 6 Months Ended | ||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Nov. 30, 2012
USD ($)
|
May 31, 2012
USD ($)
|
Sep. 25, 2007
USD ($)
|
Sep. 25, 2007
EUR (€)
|
Nov. 30, 2012
Swap agreements [Member]
|
May 31, 2012
Swap agreements [Member]
|
Nov. 30, 2012
Short-term [Member]
USD ($)
|
May 31, 2012
Short-term [Member]
USD ($)
|
Nov. 30, 2012
Long-term [Member]
USD ($)
|
May 31, 2012
Long-term [Member]
USD ($)
|
Nov. 30, 2012
Credit valuation adjustment [Member]
USD ($)
|
May 31, 2012
Credit valuation adjustment [Member]
USD ($)
|
Nov. 30, 2012
Euro term loan [Member]
EUR (€)
|
Nov. 30, 2012
Euro term loan [Member]
USD ($)
|
May 31, 2012
Euro term loan [Member]
|
Sep. 25, 2007
Euro term loan [Member]
USD ($)
|
Sep. 25, 2007
Euro term loan [Member]
EUR (€)
|
Nov. 30, 2012
U.S. dollar term loan [Member]
|
|
Derivative Instruments And Hedging Activities [Line Items] | ||||||||||||||||||
Hedged portion of net investment | $ 1,690.0 | € 1,238.0 | € 1,856.7 | $ 2,407.6 | $ 1,207.4 | € 875.0 | ||||||||||||
Outstanding principal balance | 831.4 | 1,078.0 | ||||||||||||||||
Difference unhedged | 1,025.3 | 1,329.6 | ||||||||||||||||
Swap liability | (77.4) | (76.2) | 27.5 | 36.0 | 52.8 | 41.0 | 2.9 | 0.8 | ||||||||||
Effective interest rate | 63.42% | 52.93% | 3.73% | 3.85% | ||||||||||||||
Effective interest rate amount | 1,410.0 | 440.0 | ||||||||||||||||
Term loan fixed interest rate | 5.68% | 5.46% | ||||||||||||||||
Effective weighted average interest rate on all outstanding debt, including the interest rate swaps | 6.94% | 7.80% | ||||||||||||||||
Derivatives not designated as hedging instruments on a gross basis assets | 0.3 | |||||||||||||||||
Derivatives not designated as hedging instruments prepaid expenses and other and liabilities | $ 0.1 |
Segment Reporting - Net Sales by Geography (Detail) (USD $)
In Millions, unless otherwise specified |
3 Months Ended | 6 Months Ended | ||
---|---|---|---|---|
Nov. 30, 2012
|
Nov. 30, 2011
|
Nov. 30, 2012
|
Nov. 30, 2011
|
|
Net sales by geography: | ||||
Net sales | $ 790.1 | $ 725.1 | $ 1,497.5 | $ 1,389.7 |
United States [Member]
|
||||
Net sales by geography: | ||||
Net sales | 470.8 | 426.3 | 923.0 | 841.0 |
Europe [Member]
|
||||
Net sales by geography: | ||||
Net sales | 193.9 | 195.1 | 336.8 | 343.6 |
International [Member]
|
||||
Net sales by geography: | ||||
Net sales | $ 125.4 | $ 103.7 | $ 237.7 | $ 205.1 |
Basis of Presentation - Additional Information (Detail)
|
6 Months Ended |
---|---|
Nov. 30, 2012
|
|
Basis Of Presentation [Line Items] | |
Threshold limit for impairment tests | 50.00% |
Investments (Tables)
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6 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Nov. 30, 2012
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Summary of Company's Investment Securities | Company’s investment securities were classified as follows:
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Derivative Instruments and Hedging Activities - Schedule of Interest Rate Swap (Detail) (USD $)
In Millions, unless otherwise specified |
3 Months Ended | 6 Months Ended | ||
---|---|---|---|---|
Nov. 30, 2012
|
Nov. 30, 2011
|
Nov. 30, 2012
|
Nov. 30, 2011
|
|
Amounts Related To Interest Rate Derivatives Included In Income Designated As Hedges Of Cash Flows [Line Items] | ||||
Amount of gain (loss) recognized in OCI | $ 3.0 | $ 19.5 | $ (1.2) | $ 28.5 |
Amount of (gain) loss reclassified from accumulated OCI into interest expense (effective portion) | ||||
Amount (gain) loss recognized in other income (expense) (ineffective portion and amount excluded from effectiveness testing) |
Goodwill and Other Intangible Assets - Schedule of Intangible Assets (Detail) (USD $)
In Millions, unless otherwise specified |
3 Months Ended | 12 Months Ended |
---|---|---|
Nov. 30, 2012
|
May 31, 2012
|
|
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | $ 5,367.1 | $ 5,776.2 |
Impairment Charge | (503.8) | |
New Carrying Amount | 5,272.4 | |
Accumulated Amortization | (1,501.2) | (1,607.9) |
Impairment Charge | 265.9 | |
Net Carrying Amount | 3,865.9 | 3,930.4 |
Core technology [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 1,700.2 | 1,856.1 |
Impairment Charge | (185.7) | |
New Carrying Amount | 1,670.4 | |
Accumulated Amortization | (429.3) | (457.7) |
Impairment Charge | 74.3 | |
Net Carrying Amount | 1,270.9 | 1,287.0 |
Completed technology [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 604.2 | 594.2 |
New Carrying Amount | 594.2 | |
Accumulated Amortization | (229.3) | (206.7) |
Net Carrying Amount | 374.9 | 387.5 |
Product trade names [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 192.5 | 184.5 |
New Carrying Amount | 184.5 | |
Accumulated Amortization | (58.5) | (52.6) |
Net Carrying Amount | 134.0 | 131.9 |
Customer relationships [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 2,387.3 | 2,666.1 |
Impairment Charge | (306.8) | |
New Carrying Amount | 2,359.3 | |
Accumulated Amortization | (748.4) | (859.3) |
Impairment Charge | 191.6 | |
Net Carrying Amount | 1,638.9 | 1,691.6 |
Non-compete contracts [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 4.6 | 4.6 |
New Carrying Amount | 4.6 | |
Accumulated Amortization | (3.5) | (3.1) |
Net Carrying Amount | 1.1 | 1.5 |
Sub-total [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 4,888.8 | 5,305.5 |
Impairment Charge | (492.5) | |
New Carrying Amount | 4,813.0 | |
Accumulated Amortization | (1,469.0) | (1,579.4) |
Impairment Charge | 265.9 | |
Net Carrying Amount | 3,419.8 | 3,499.5 |
Corporate trade names [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 312.2 | 323.5 |
Impairment Charge | (11.3) | |
New Carrying Amount | 312.2 | |
Net Carrying Amount | 312.2 | 312.2 |
Currency translation [Member]
|
||
Finite-Lived Intangible Assets [Line Items] | ||
Gross Carrying Amount | 166.1 | 147.2 |
New Carrying Amount | 147.2 | |
Accumulated Amortization | (32.2) | (28.5) |
Net Carrying Amount | $ 133.9 | $ 118.7 |
Property, Plant and Equipment - Useful Lives of Property, Plant and Equipment (Detail)
|
6 Months Ended |
---|---|
Nov. 30, 2012
|
|
Land improvements [Member]
|
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Property, Plant and Equipment [Line Items] | |
Useful life of property, plant and equipment | 20 years |
Buildings and leasehold improvements [Member]
|
|
Property, Plant and Equipment [Line Items] | |
Useful life of property, plant and equipment | 30 years |
Instruments [Member]
|
|
Property, Plant and Equipment [Line Items] | |
Useful life of property, plant and equipment | 4 years |
Minimum [Member] | Machinery and equipment [Member]
|
|
Property, Plant and Equipment [Line Items] | |
Useful life of property, plant and equipment | 5 years |
Maximum [Member] | Machinery and equipment [Member]
|
|
Property, Plant and Equipment [Line Items] | |
Useful life of property, plant and equipment | 10 years |
Stock-based Compensation and Stock Plans - Additional Information (Detail) (USD $)
In Millions, except Share data, unless otherwise specified |
3 Months Ended | 6 Months Ended | 1 Months Ended | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Nov. 30, 2012
|
Nov. 30, 2011
|
Nov. 30, 2012
|
Nov. 30, 2011
|
May 31, 2012
|
Jul. 31, 2012
Stock options [Member]
|
Jul. 30, 2012
Stock options [Member]
|
Jul. 31, 2012
Restricted stock units [Member]
|
Jul. 30, 2012
Restricted stock units [Member]
|
||||
Stock-based compensation expense recognized | $ 7.4 | $ 4.0 | $ 26.5 | $ 8.7 | [1] | |||||||
Purchase of aggregate shares of common stock | 29,532,500 | 3,665,000 | ||||||||||
Stock based compensation, new options granted | 29,821,500 | |||||||||||
Stock based compensation, restricted stock units granted | 10,795,000 | |||||||||||
Exercise price for stock options decreased to current fair value | $ 7.88 | |||||||||||
Common stock, par value | $ 0.01 | $ 0.01 | $ 0.01 | |||||||||
Maximum number of shares of common stock | 14,000,000 | 14,000,000 | ||||||||||
|
Related Parties - Additional Information (Detail) (USD $)
|
3 Months Ended | 6 Months Ended | 3 Months Ended | 1 Months Ended | 3 Months Ended | 6 Months Ended | 6 Months Ended | 3 Months Ended | 6 Months Ended | 3 Months Ended | ||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Nov. 30, 2012
|
Aug. 31, 2012
Employees
|
Nov. 30, 2011
|
Nov. 30, 2012
|
Nov. 30, 2011
|
Jun. 13, 2007
|
Nov. 30, 2012
Senior notes [Member]
|
Nov. 30, 2012
Senior subordinated notes [Member]
|
Aug. 08, 2012
6.500% senior notes due 2020 [Member]
|
Aug. 31, 2012
6.500% senior notes due 2020 [Member]
|
Nov. 30, 2012
6.500% senior notes due 2020 [Member]
Senior notes [Member]
|
Oct. 02, 2012
6.500% senior notes due 2020 [Member]
Senior notes [Member]
|
Nov. 30, 2012
6.500% senior notes due 2020 [Member]
Senior subordinated notes [Member]
|
Nov. 30, 2012
Goldman Sachs [Member]
|
Nov. 30, 2012
Goldman Sachs [Member]
|
Nov. 30, 2012
Minimum [Member]
|
Nov. 30, 2012
Maximum [Member]
|
Jul. 11, 2007
Senior Secured Term Loan Facility [Member]
|
|
Related Party Transaction [Line Items] | ||||||||||||||||||
Offer Price | $ 46.00 | |||||||||||||||||
Amount of credit agreement | $ 6,165,000,000 | |||||||||||||||||
Borrowings to finance portion of the Offer and pay related fees and expenses | 4,181,000,000 | 4,181,000,000 | ||||||||||||||||
Credit agreement maturity date | Jul-11-2007 | Jul-11-2007 | ||||||||||||||||
Percentage of outstanding Shares tendered to Purchaser | 82.00% | 82.00% | ||||||||||||||||
Percentage of shareholders voted to approve the proposed merger | 91.00% | 91.00% | ||||||||||||||||
Date of acquisition | Sep. 25, 2007 | |||||||||||||||||
Percentage of transaction fee on total enterprise value | 1.00% | 1.00% | ||||||||||||||||
Percentage of annual monitoring fee on Company's annual Adjusted EBITDA | 1.00% | 1.00% | ||||||||||||||||
Total amount of Sponsor fees | 2,800,000 | 2,800,000 | 5,400,000 | 4,800,000 | ||||||||||||||
Minimum percentage of membership interests that the sponsors should hold | 70.00% | |||||||||||||||||
Consulting fee | 250,000 | |||||||||||||||||
Out-of-pocket fees and expenses relating to an off-site office and administrative support | 100,000 | 100,000 | 150,000 | |||||||||||||||
Amount paid under consulting agreement | 100,000 | 100,000 | 200,000 | 200,000 | ||||||||||||||
Fee per participating employee per month | 2 | |||||||||||||||||
Number of employees enrolled in its health benefit plans | 3,200 | |||||||||||||||||
Percentage of purchase requirements | 80.00% | |||||||||||||||||
Total amount of fees paid | 100,000 | 100,000 | 100,000 | 200,000 | ||||||||||||||
Aggregate principal amount | 800,000,000 | 1,000,000,000 | 1,000,000,000 | 825,000,000 | 825,000,000 | 800,000,000 | ||||||||||||
Stated percentage of senior notes | 6.50% | 6.50% | 6.50% | 6.50% | 6.50% | |||||||||||||
Senior note due | 2020 | 2020 | 2020 | 2020 | 2020 | |||||||||||||
Fees received | (67,800,000) | 400,000 | 500,000 | |||||||||||||||
Underwriting discount received | 2,300,000 | 2,600,000 | 2,500,000 | |||||||||||||||
Amount paid to consulting company | 1,700,000 | 500,000 | 2,200,000 | 1,100,000 | ||||||||||||||
Repurchase of common shares | $ 100,000 | $ 800,000 | $ 100,000 | $ 1,100,000 |
Fair Value of Measurements - Additional Information (Detail) (USD $)
In Millions, unless otherwise specified |
Nov. 30, 2012
|
May 31, 2012
|
---|---|---|
Fair Value Disclosures [Line Items] | ||
Estimated fair value of long-term debt | $ 6,077.9 | |
Carrying value of long-term debt | $ 6,039.6 | $ 5,827.8 |
Property, Plant and Equipment
|
6 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Nov. 30, 2012
|
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Property, Plant and Equipment | Note 4—Property, Plant and Equipment. Property, plant and equipment are carried at cost less accumulated depreciation. Depreciation is computed using the straight-line method over the estimated useful life. Depreciation of instruments is included within cost of sales. Related maintenance and repairs are expensed as incurred. The Company reviews property, plant and equipment for impairment whenever events or changes in circumstances indicate that the carrying value of an asset may not be recoverable. An impairment loss would be recognized when estimated undiscounted future cash flows relating to the asset, or asset group, are less than its carrying value, with the amount of the loss equal to the excess of carrying value of the asset, or asset group, over the estimated fair value. Useful lives by major product category consisted of the following:
Property, plant and equipment consisted of the following:
|