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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. Employee Stock Purchase Plan
(Full title of the plan)
Steven G. Anderson, President, CEO and
Chairman of the Board of DirectorsCryoLife, 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
Proposed
maximum aggregatae Amount of
Title of securities offering price registration
to be registered fee*
_________________________________________________________________________
Common Stock,
$.01 par value $10,200,000 $3,517.25
__________________________________________________________________________
* Calculated pursuant to Rule 457(h) based on the average of the high
and low prices reported for the Common Stock on The Nasdaq Stock
Market on June 14, 1996 ($34.00).
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 Quarterly Report on Form 10-Q filed with
respect to the Registrant's fiscal quarter ended March 31, 1996.
(c) The Registrant's Current Report on Form 8-K filed with
the Securities and Exchange Commission on April 16, 1996.
(d) 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.
(e) 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 June 14, 1996.
CRYOLIFE, INC.
Steven G. Anderson
By: __________________
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 June 14, 1996
Steven G. Anderson Executive Officer and
Chairman of the Board
of Directors (Principal
Executive Officer)
Edwin B. Cordell, Jr.
______________________ Vice President and June 14, 1996
Edwin B. Cordell, Jr. Chief Financial Officer
(Principal Financial
and Accounting Officer)
Ronald D. McCall
______________________ Director June 14, 1996
Ronald D. McCall
Benjamin H. Gray
______________________ Director June 14, 1996
Benjamin H. Gray
______________________ Director June __, 1996
Rodney G. Lacy
Ronald Charles Elkins,
M.D.
______________________ Director June 12, 1996
Ronald Charles Elkins,
M.D.
ARNALL GOLDEN & GREGORY
1201 W. Peachtree St.
Atlanta, GA 30309
June 17, 1996
CryoLife, Inc.
Suite 142
2211 New Market Parkway
Marietta, GA 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
600,000 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
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 for each of the years in the three-year period
ended December 31, 1995 and related schedule, which reports
appear in the December 31, 1995 annual report on Form 10-K of
CryoLife, Inc.
KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
June 17, 1996