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. Directors Options
(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:
T. Clark Fitzgerald III, 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*
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, 93,000 Shares $15.282 $1,421,250 $431.00
$1.00 par value
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<FN>
* Calculated pursuant to Rule 475(h) as follows: (a) with respect to 21,000
shares based upon the exercise price of $10.25 per share and (b) with
respect to 72,000 shares based upon the exercise price of $16.75 per share.
</FN>
441778.1
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 filed with respect to
the Registrant's fiscal year ended December 31, 1996.
(b) The Registrant's Quarterly Reports on Form 10-Q filed with respect
to the Registrant's fiscal quarters ended March 31, 1997 and June 30, 1997.
(c) The Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on February 28, 1997.
(d) The Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on March 19, 1997, as amended by Registrant's
Amendment to Current Report on Form 8-K/A filed with the Securities and Exchange
Commission on May 15, 1997.
(e) 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.
(f) 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
441778.1
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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 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.
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.)
3.2 Amendment to Articles of Incorporation of the Company dated 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.)
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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
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 4.1 to the Registrant's Registration Statement on Form S-1 (No. 33-56388).)
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-Employees Directors Stock Option Plan
99.2* Form of Director Option Agreement
* 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.
(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.
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(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.
441778.1
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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 June 16, 1997.
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 June 16, 1997
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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 June 16, 1997
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Edwin B. Cordell, Jr. Officer (Principal Financial and
Accounting Officer)
/s/ Ronald D. McCall Director June 12, 1997
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Ronald D. McCall
/s/ Benjamin H. Gray Director June 17, 1997
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Benjamin H. Gray
/s/ Ronald Charles Elkins, M.D. Director June 19, 1997
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Ronald Charles Elkins, M.D.
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