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.)
1655 Roberts Boulevard, NW, Kennesaw, Georgia 30144
(Address of Principal Executive Offices) (Zip Code)
CryoLife, Inc. Amended and Restated 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.
1655 Roberts Boulevard, NW
Kennesaw Georgia 30144
(Name and address of agent for service)
(770) 419-3355
(Telephone number, including area code, of agent for service)
Copy to:
B. Joseph Alley, Jr., Esq.
Arnall Golden & Gregory, LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30303-3450
(404) 873-8500
Calculation of Registration Fee
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Proposed
Proposed maximum Amount of
Title of securities Amount to be maximum offering aggregate registration
to be registered registered price per share offering price fee*
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Common Stock, 175,000 Shares $14.75 $2,581,250 $762.00
$1.00 par value
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* The offering price for such shares is estimated pursuant to Rule 457(c) and
(h) under the Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is based upon the average of the high
and low prices of the Registrant's Common Stock on July 22, 1998 as listed
on the New York Stock Exchange.
550367.1
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, as amended, filed with
respect to the Registrant's fiscal year ended December 31, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q filed with respect
to the Registrant's fiscal quarter ended March 31, 1998.
(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
550367.1
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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 Agreement and Plan of Merger dated March 5, 1997, between
Registrant and Ideas for Medicine, Inc. ("IFM") and certain stockholders of IFM
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 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.
Pursuant to the Underwriting Agreements entered into by the Company in
connection with its initial and follow-on public offerings of Common Stock, the
Underwriters thereunder have agreed to indemnify the directors and officers of
the Company and certain other persons against certain civil liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Exhibit
3.1 Restated Certificate of Incorporation of the Company, as amended.
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (No. 33- 56388).
Amendment to Articles of Incorporation of the Company dated
3.2 November 29, 1995. (Incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995).
3.3 Amendment to the Company's Articles of Incorporation to increase
the number of authorized shares of common stock from 20 million
to 50 million shares and to delete the requirement
550367.1
3
that all preferred shares have one vote per share. (Incorporated
by reference to Exhibit 3.3 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1996).
3.4 ByLaws of the Company, as amended. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995).
4.1 Form of Certificate for the Company's Common Stock (Incorporated
by reference to Exhibit 4.2 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.2 Rights Agreement, dated as of November 27, 1995 among Registrant
Rights Agent. (Incorporated by reference to Exhibit (1) to the
Registrant's Current Report on Form 8-K dated November 27, 1995).
5* Opinion of Arnall Golden & Gregory, LLP regarding legality.
23.1* Consent of Arnall Golden & Gregory, LLP (included as part of
Exhibit 5 hereto).
23.2* Consent of Ernst & Young LLP.
23.3* Consent of KPMG Peat Marwick LLP.
99.1 Amended and Restated Non-Employee Directors Stock Option Plan.
(Incorporated by reference to Appendix 2 to the Registrant's
Definitive Proxy filed with the Securities and Exchange
Commission on April 17, 1998).
* Filed herewith.
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.
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4
(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.
550367.1
5
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 Kennesaw, State of Georgia on July 20, 1998.
CRYOLIFE, INC.
By: /s/ 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, Ronald D. McCall 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
/s/ Steven G. Anderson President, Chief Executive Officer and July 20, 1998
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Steven G. Anderson Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Edwin B. Cordell, Jr. Vice President and Chief Financial July 20, 1998
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Edwin B. Cordell, Jr. Officer (Principal Financial and
Accounting Officer)
/s/ Ronald D. McCall Director July 20, 1998
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Ronald D. McCall
/s/ Director July 20, 1998
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Benjamin H. Gray
/s/ Virginia C. Lacy Director July 20, 1998
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Virginia C. Lacy
/s/ Ronald Charles Elkins, M.D. Director July 20, 1998
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Ronald Charles Elkins, M.D.
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EXHIBIT 5
ARNALL GOLDEN & GREGORY, LLP
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
2800 ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3450
TELEPHONE (404) 873-8500 - FACSIMILE (404) 873-8501
(404) 873-8500
(404) 873-8501
July 24, 1998
CryoLife, Inc.
1655 Roberts Boulevard, N.W.
Kennesaw, Georgia 30144
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 175,000
shares of the Company's Common Stock, $.01 par value (the "Shares"), pursuant to
the Company's Amended and Restated 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, LLP
ARNALL GOLDEN & GREGORY, LLP
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the CryoLife, Inc. Amended and Restated Non-Employee
Directors Stock Option Plan, of our report dated February 9, 1998, with respect
to the consolidated financial statements of CryoLife, Inc. incorporated by
reference in its Annual Report on Form 10-K for the year ended December 31,
1997, as amended by Amendment No. 1 on Form 10-K/A on March 23, 1998, and the
related financial statement schedule included therein filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
July 20, 1998
EXHIBIT 23.3
Consent of Independent Auditors
The Board of Directors
CryoLife, Inc.
We consent to the use of our report incorporated herein by reference.
KPMG PEAT MARWICK LLP
Atlanta, Georgia
July 20, 1998
