Registration Statement No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1655 ROBERTS BOULEVARD, NW, KENNESAW, GEORGIA 30144
(Address, including zip code, of registrant's principal executive offices)
CRYOLIFE, INC. DIRECTORS STOCK OPTIONS
(Full Title of Plan)
STEVEN G. ANDERSON, PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD OF DIRECTORS
CRYOLIFE, INC.
1655 ROBERTS BOULEVARD, NW
KENNESAW, GEORGIA 30144
(770) 419-3355
(Name and address, including zip code, and 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 30309-3450
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, 97,500 Shares $17.25 $1,496,625 $395.11
$.01 par value
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* Calculated pursuant to Rule 457(h) as follows: (a) with respect to 60,000
shares, based upon the exercise price of $17.25 and (b) with respect to
37,500 shares, based upon the exercise price of $12.31 per share.
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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, 1999.
(b) The Registrant's Quarterly Reports on Form 10-Q filed with respect to
the Registrant's fiscal quarters ended March 31, 2000 and June 30, 2000.
(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
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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 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
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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, 1975. (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 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, 1993).
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).
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23.2* Consent of Arthur Andersen LLP.
23.3* Consent of Ernst & Young LLP.
99* Form of Directors Stock Option Agreement and Grant.
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* 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.
(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.
(c) 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.
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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 September 28, 2000.
CRYOLIFE, INC.
By: /s/ Steven G. Anderson
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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 D.
Ashley Lee 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:
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Name Title Date
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/s/ Steven G. Anderson
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Steven G. Anderson President, Chief Executive Officer and September 28, 2000
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ D. Ashley Lee
------------------------------- Vice President of Finance and Chief September 28, 2000
D. Ashley Lee Financial Officer (Principal Financial
and Accounting Officer)
/s/ Ronald D. McCall
------------------------------- Secretary, Treasurer and Director September 28, 2000
Ronald D. McCall
/s/ Virginia C. Lacy
------------------------------- Director September 28, 2000
Virginia C. Lacy
/s/ Ronald Charles Elkins, M.D.
------------------------------- Director September 28, 2000
Ronald Charles Elkins, M.D.
/s/ John M. Cook
------------------------------- Director September 28, 2000
John M. Cook
/s/ Alexander C. Schwartz
------------------------------- Director September 28, 2000
Alexander C. Schwartz
/s/ Bruce J. Van Dyne, M.D.
------------------------------- Director September 28, 2000
Bruce J. Van Dyne, M.D.
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