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REGISTRATION NO. 333-
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CRYOLIFE, INC.
(Exact name of registrant as specified in its charter)
Florida 59-2417093
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
2211 New Market Parkway, Suite 142, Marietta, Georgia 30067
(Address of Principal Executive Offices) (Zip Code)
CRYOLIFE, INC. NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the plan)
Steven G. Anderson, President, CEO and
Chairman of the Board of Directors
CryoLife, Inc.
2211 New Market Parkway, Suite 142
Marietta, Georgia 30067
(Name and address of agent for service)
(770) 952-1660
(Telephone number, including area code, of agent for service)
Copy to:
B. Joseph Alley, Jr., Esq.
Arnall Golden & Gregory
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30303-3450
(404) 873-8500
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
Title of securities Proposed Amount of
to be registered maximum aggregate registration
offering price fee*
______________________________________________________________________________
Common Stock, $2,720,937.50 $938.26
$.01 par value
______________________________________________________________________________
*Calculated pursuant to Rule 457(h) as follows: (a) with respect to
92,500 shares subject to currently outstanding options, based upon the
exercise price of $7.25 per share for each of the outstanding
options, and (b) with respect to the remaining 67,500 shares of Common
Stock reserved under the Plan, based on the average of the high and low
prices reported for the Common Stock on The Nasdaq Stock Market on May 8,
1996 ($30.375)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K filed with respect
to the Registrant's fiscal year ended December 31, 1995.
(b) The Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on April 16, 1996.
(c) The description of the Registrant's Common Stock contained in
the Registrant's registration statement filed under Section 12 of the
Securities Exchange Act of 1934, including any amendment or report filed
for the purpose of updating such description.
(d) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment to this
registration statement which indicates that all of the shares of Common
Stock offered have been sold or which deregisters all of such shares then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Florida corporation. The following summary is
qualified in its entirety by reference to the complete text of the Florida
Business Corporation Act (the "FBCA"), the Registrant's Restated Articles
of Incorporation, and the Registrant's Bylaws.
Under Section 607.0850(1) of the FBCA, a corporation may indemnify
any of its directors and officers against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit
or proceeding (including any appeal thereof) (i) if such person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and (ii) with respect
to any criminal action or proceeding, he or she had no reasonable cause
to believe his or her conduct was unlawful. In actions brought by or in
the right of the corporation, however, Section 607.0850(2) provides that
no indemnification shall be made in respect of any claim, issue or matter
as to which the director or officer shall have been adjudged to be liable
unless, and only to the extent that, the court in which such proceeding
was brought, or any other court of competent jurisdiction, shall determine
upon application that, despite the adjudication of liability but in view
of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper. Article X of the Registrant's Restated Articles of Incorporation
and Article VI of the Registrant's Bylaws require that, if in the judgment
of the majority of the Board of Directors (excluding from such majority
any director under consideration for indemnification) the criteria set
forth under Section 607.0850 have been met, then the Registrant shall
indemnify its directors and officers for certain liabilities incurred in
the performance of their duties on behalf of the Registrant to the maximum
extent allowed by Section 607.0850 of the FBCA (formerly Section 607.014
of the Florida General Corporation Act).
The Securities Purchase Agreement dated December 17, 1985 between the
Registrant and certain shareholders of the Registrant provides that any
investors exercising registration rights pursuant to such agreement must
indemnify the officers and directors signing the registration statement
against any liability arising from statements or omissions made in
reliance upon information furnished by such investors to the Registrant
for use in such registration statement.
The registration rights agreement dated August 22, 1991, among the
Registrant, Galen Partners, L.P. ("Galen"), and Galen Partners
International, L.P. ("Galen International") provides that if Galen or
Galen International exercises its registration rights, then such
prospective seller and any underwriter acting on its behalf shall have
agreed to indemnify the Registrant and each officer and director signing
such registration statement for any liability arising from any untrue
statement or omission made in such registration statement in reliance upon
written information provided to the Registrant for use in such
registration statement. The registration rights agreement further
specifies that the indemnification rights granted therein shall be
inoperative if, in connection with an underwritten public offering, an
underwriting agreement is executed containing provisions covering
indemnification among the partners thereto.
The Registrant has purchased insurance to insure (i) the Registrant's
directors and officers against damages from actions and claims incurred
in the course of their duties, and (ii) the Registrant against expenses
incurred in defending lawsuits arising from certain alleged acts of its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
5 Opinion of Arnall Golden & Gregory regarding legality
23.1 Consent of Arnall Golden & Gregory (included as part of
Exhibit 5 hereto)
23.2 Consent of KPMG Peat Marwick LLP
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
in Item 6, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceedings) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Marietta, State of Georgia on
May 9, 1996.
CRYOLIFE, INC.
By: STEVEN G. ANDERSON
_____________________________
Steven G. Anderson
President, Chief Executive
Officer and Chairman of the Board
of Directors
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven G. Anderson and Edwin B.
Cordell, Jr. and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and
in his name, place, and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
Name Title Date
Steven G. Anderson President, Chief May 9, 1996
_____________________ Executive Officer and
Steven G. Anderson Chairman of the Board
of Directors (Principal
Executive Officer)
Edwin B. Cordell, Jr. Vice President and May 9, 1996
_____________________ Chief Financial Officer
Edwin B. Cordell, Jr. (Principal Financial
and Accounting Officer)
Ronald D. McCall Director May 9, 1996
_____________________
Ronald D. McCall
Benjamin H. Gray Director April 28, 1996
_____________________
Benjamin H. Gray
Rodney G. Lacy Director April 28, 1996
_____________________
Rodney G. Lacy
Bruce F. Wesson Director May 9, 1996
_____________________
Bruce F. Wesson
Ronald Charles Elkins, M.D. Director April 29, 1996
_____________________
Ronald Charles Elkins, M.D.
EXHIBIT 5
ARNALL GOLDEN & GREGORY
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
(404) 873-8500
(404) 873-8501
May 10, 1996
CryoLife, Inc.
2211 New Market Parkway
Suite 142
Marietta, Georgia 30067
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is rendered in connection with the proposed
issue and sale by CryoLife, Inc., a Florida corporation (the
"Company"), of up to 160,000 shares of the Company's Common
Stock, $.01 par value (the "Shares"), pursuant to the Company's
Non-Employee Directors Stock Option Plan (the "Plan") upon the
terms and conditions set forth in the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"). We have acted as counsel for
the Company in connection with the issuance and sale of the
Shares by the Company.
In rendering the opinion contained herein, we have relied in
part upon examination of the Company's corporate records,
documents, certificates and other instruments and the examination
of such questions of law as we have considered necessary or
appropriate for the purpose of this opinion. Based upon the
foregoing, and assuming that the purchase price of each of the
Shares will exceed the par value thereof, we are of the opinion
that the Shares have been duly and validly authorized and when
sold in the manner contemplated by the Plan, and upon receipt by
the Company of payment therefor, and upon issuance pursuant to a
current prospectus in conformity with the Act, they will be
legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to
the Registration Statement. This consent is not to be construed
as an admission that we are a party whose consent is required to
be filed with the Registration Statement under the provisions
of the Act.
Sincerely,
ARNALL GOLDEN & GREGORY
ARNALL GOLDEN & GREGORY
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors
CryoLife, Inc.
We consent to incorporation by reference in the registration
statement on Form S-8 of CryoLife, Inc. of our reports dated
February 14, 1996, except as to Note 13, which is as of March 18,
1996, relating to the consolidated balance sheets of CryoLife,
Inc. and subsidiaries as of December 31, 1995 and 1994, and the
related consolidated statements of income, shareholders' equity
and cash flows and related schedule for each of the years in the
three-year period ended December 31, 1995, which reports appear
in the December 31, 1995 annual report on From 10-K of CryoLife,
Inc.
KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
May 9, 1996