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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 20, 1998.
REGISTRATION NO. 333-44919
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOFAMOR DANEK GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
INDIANA 35-1580052
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1800 PYRAMID PLACE
MEMPHIS, TENNESSEE 38132
(901) 396-2695
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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RICHARD E. DUERR, JR.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
SOFAMOR DANEK GROUP, INC.
1800 PYRAMID PLACE
MEMPHIS, TENNESSEE 38132
(901) 396-2695
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
CREIGHTON O'M. CONDON, ESQ. GERALD S. TANENBAUM, ESQ.
STEPHEN T. GIOVE, ESQ. CAHILL GORDON & REINDEL
SHEARMAN & STERLING 80 PINE STREET
599 LEXINGTON AVENUE NEW YORK, NEW YORK 10005
NEW YORK, NEW YORK 10022 (212) 701-3000
(212) 848-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following fees and expenses shall be borne by the Company in connection
with this offering. All fees and expenses other than the SEC and NASD fees are
estimated.(1)
SEC Registration Fee.......................................................... $ 59,072
NASD Filing Fee............................................................... 20,524
NYSE Filing Fee............................................................... 35,000
Printing and Engraving........................................................ 130,000
Accounting Fees and Expenses.................................................. 30,000
Legal Fees and Expenses....................................................... 210,000
Miscellaneous................................................................. 15,404
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TOTAL............................................................... $500,000
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(1) Each of the Selling Shareholders will pay his or her pro rata portion of the
offering expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23-1-37-1 through 23-1-37-15 of the Indiana Business Corporation Law
permit a corporation to indemnify directors and officers against liability
incurred in certain proceedings if the individual's conduct was in good faith
and the individual reasonably believed, in the case of conduct in the
individual's official capacity with the corporation, that such conduct was in
the best interests of the corporation and, in all other cases, believed such
conduct was at least not opposed to the best interests of the corporation. If
the proceeding is criminal, the individual must have at least had no reasonable
cause to believe that such conduct was unlawful. The statute requires a
corporation to indemnify an individual who is wholly successful on the merits or
otherwise in the defense of any proceeding against reasonable expenses incurred
by such individual, unless the Articles of Incorporation provide otherwise. The
corporation may pay for or reimburse the reasonable expenses incurred by a
director or officer who is a party to a proceeding in advance of final
disposition of the proceeding if certain conditions are satisfied. Unless
otherwise provided in the Articles of Incorporation, a director or officer who
is a party to a proceeding may apply for court ordered indemnification. The
court may order indemnification if it determines that the director is entitled
to mandatory indemnification, in which case the indemnification will include
reasonable expenses incurred to obtain the indemnification order; or if it
determines that the director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances. Except in the case of
mandatory indemnification, a corporation may indemnify a director or officer
only after it is determined that the individual meets the standard of conduct
described above. In addition, a corporation may also indemnify and advance
expenses to an officer, whether or not a director, to the extent, consistent
with public policy, that may be provided by its articles of incorporation,
bylaws, general or specific action of its Board of Directors or contract.
Section 23-1-37-14 of the Indiana Business Corporation Law empowers an Indiana
corporation to purchase and maintain insurance on behalf of any director or
officer against any liability asserted against, or incurred by, any individual
serving in such capacity at the request of the corporation or arising out of his
or her status as such, whether or not the corporation would have had the power
to indemnify against such liability under other provisions of the Indiana
Business Corporation Law.
The Amended and Restated Bylaws of the Registrant require the Registrant to
indemnify any person who is or was a director or officer of the Registrant
against any and all liabilities and reasonable expenses incurred by such person
in connection with or resulting from any threatened, pending or completed action
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. The Registrant shall not indemnify any director or
officer to the extent that such persons' claim for indemnification arises out of
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its shareholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law or (iii) for any
transaction from which the director derived an improper personal benefit.
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The Registrant also carries liability insurance covering officers and directors.
There is a deductible amount of $100,000 for the Registrant per claim. The
policy contains certain exclusions including, but not limited to, certain claims
by stockholders.
ITEM 16. EXHIBITS
NUMBER
ASSIGNED IN
REGULATION S-K,
ITEM 601 DESCRIPTION OF EXHIBIT
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1.1 -- Form of Underwriting Agreement
4.1 -- Form of Certificate for Common Stock incorporated herein by this reference from the
Company's Annual Report on Form 10-K (File No. 000-19168)
5.1 -- Legal opinion of Henderson, Daily, Withrow & DeVoe dated February 19, 1998
23.1* -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Henderson, Daily, Withrow & DeVoe (included in Exhibit 5.1 filed herewith)
25.1* -- Powers of Attorney (included on the signature page of this Registration Statement)
* Previously filed.
ITEM 17. UNDERTAKINGS
(a) 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.
(b) 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 foregoing provisions, 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 for expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) 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.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
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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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-3 and has duly caused this Amendment No. 2 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Memphis, State of Tennessee, on February 20,
1998.
SOFAMOR DANEK GROUP, INC.
By: /s/ J. MARK MERRILL
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Name: J. Mark Merrill
Title: Vice President, Treasurer and
Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2
to Registration Statement has been signed below by the following persons in the
capacities indicated on February 20, 1998.
SIGNATURE TITLE
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* Chairman, Chief Executive Office and Director (Principal
- --------------------------------------------- Executive Officer)
E. R. Pickard
* President, Chief Operating Officer and Director
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James J. Gallogly
* Group President-Operations and Director
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Robert A. Compton
* Executive Vice President and Chief Financial Officer
- ---------------------------------------------
George G. Griffin III
/s/ J. MARK MERRILL Vice President and Treasurer
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J. Mark Merrill
* Executive Vice President and Director
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Marie-Helene Plais, M.D.
* Director
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L.D. Beard
* Director
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George W. Bryan, Sr.
* Director
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Samuel F. Hulbert, Ph.D.
* Director
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Yves Paul Cotrel, M.D.
* Director
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George F. Rapp, M.D.
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* By power of attorney.
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EXHIBIT INDEX
NUMBER
ASSIGNED IN
REGULATION S-K,
ITEM 601 DESCRIPTION OF EXHIBIT
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1.1 -- Form of Underwriting Agreement
4.1 -- Form of Certificate for Common Stock incorporated herein by this reference from the
Company's Annual Report on Form 10-K (File No. 000-19168)
5.1 -- Legal opinion of Henderson, Daily, Withrow & DeVoe dated February 19, 1998
23.1* -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Henderson, Daily, Withrow & DeVoe (included in Exhibit 5.1 filed
herewith)
25.1* -- Powers of Attorney (included on the signature page of this Registration Statement)
* Previously filed.