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As filed with the Securities and Exchange Commission on May 9, 1997
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
SOFAMOR DANEK GROUP, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-1580052
(State of Incorporation) (I.R.S. Employer Identification No.)
1800 Pyramid Place
Memphis, Tennessee 38132
(Address of principal executive offices)
STOCK OPTION AGREEMENT DATED AS OF JULY 8, 1992 BETWEEN
SOFAMOR DANEK GROUP, INC. AND GEORGE BRYAN
(Full Title of the Plan)
Richard E. Duerr, Jr.
Vice President, General Counsel and Secretary
1800 Pyramid Place
Memphis, Tennessee 38132
(901) 396-2695
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock 10,000 shares $26.625 (1) $266,250(1) $81(1)
=========================================================================================================================
</TABLE>
(1) Such amount has been calculated in accordance with Rule 457(h) under the
Securities Act of 1933, as amended, and is based upon the Option Price of
the Common Stock stated in the Stock Option Agreement.
Pursuant to Rule 462 of the 1933 Act, the Registration Statement on Form
S-8 shall be effective upon filing with the Commission.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended December
31, 1996.
2. All reports filed by the Registrant pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "1934 Act") since the end of the
fiscal year ended December 31, 1996.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on April 17, 1991.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part thereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
ITEM 6. 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, 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 in the defense of any such 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 may apply for court ordered indemnification
which will include reasonable expenses incurred to obtain the indemnification
order if the court determines that the director is entitled to mandatory
indemnification or 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, such individual
in any such capacity 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.
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,
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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.
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 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
10 Stock Option Agreement Dated July 8, 1992 Between Sofamor Danek Group, Inc. and George Bryan
23(a) Consent of Baker, Donelson, Bearman & Caldwell (included in Exhibit 5)
23(b) Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney (included on signature page)
</TABLE>
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 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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933 (the "1933 Act"), 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 from 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 the purposes of
determining any liability under the 1933 Act, 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.
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(c) Insofar as indemnification for liabilities arising under the 1933 Act
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 1933 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 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 1933 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 Memphis, State of Tennessee, on the 31st of March,
1997.
SOFAMOR DANEK GROUP, INC.
By: /s/ E. R. Pickard
---------------------------------------------------
E. R. Pickard, Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Mark Merrill, Laurence Y. Fairey and Richard
E. Duerr, Jr., and each of them, with full power to act without the other, his
true and lawful attorney-in-fact and agent, 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 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 fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes or substitute, 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 below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---------------------------------- -------------------------------------- --------------
<S> <C> <C>
/s/ James J. Gallogly President, Chief Operating Officer and March 31, 1997
- ---------------------------------- Director
James J. Gallogly
/s/ E. R. Pickard Chairman, Chief Executive Office and March 31, 1997
- ---------------------------------- Director (Principal Executive Officer)
E. R. Pickard
/s/ J. Mark Merril Vice President and Treasurer March 31, 1997
- ----------------------------------
J. Mark Merril
/s/ Laurence Y. Fairey Executive Vice President and Chief March 31, 1997
- ---------------------------------- Financial Officer
Laurence Y. Fairey
/s/ Marie-Helene Plais, M.D. Executive Vice President and Director March 31, 1997
- ----------------------------------
Marie-Helene Plais, M.D.
/s/ L. D. Beard Director March 31, 1997
- ----------------------------------
L. D. Beard
- ---------------------------------- Director March 31, 1997
George W. Bryan, Sr.
/s/ Robert A. Compton
- ---------------------------------- Director March 31, 1997
Robert A. Compton
</TABLE>
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<TABLE>
<CAPTION>
NAME TITLE DATE
- ---------------------------------- -------------------------------------- --------------
<S> <C> <C>
/s/ Samuel F. Hulbert, Ph.D. Director March 31, 1997
- ----------------------------------
Samuel F. Hulbert, Ph.D.
/s/ Yves Paul Cotrel, M.D. Director March 31, 1997
- ----------------------------------
Yves Paul Cotrel, M.D.
/s/ George F. Rapp, M.D. Director March 31, 1997
- ----------------------------------
George F. Rapp, M.D.
</TABLE>
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EXHIBIT 5
OPINION AND CONSENT OF BAKER, DONELSON, BEARMAN & CALDWELL
[Baker, Donelson, Bearman & Caldwell Letterhead]
March 31, 1997
Sofamor Danek Group
1800 Pyramid Place
Memphis, Tennessee 38132
RE: Registration Statement on Form S-8 of Sofamor Danek Group, Inc.
Ladies and Gentlemen:
We have acted as securities counsel for Sofamor Danek Group, Inc., an
Indiana corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended, relating to the Stock Option Agreement
Dated July 8, 1992 Between Sofamor Danek Group, Inc. and George Bryan (the
"Agreement"). This opinion is being furnished in response to Item 601 of
Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the proposed
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the laws
of the State of Indiana.
2. The Agreement has been duly and validly authorized and adopted, and the
shares of Common Stock of the Company (the "Shares") that may be issued and sold
pursuant to the Agreement have been duly authorized for issuance and will, when
issued, sold and paid for in accordance with the Agreement, be validly issued,
fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United States
and the laws of the State of Tennessee, and we are expressing no opinion as to
the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we deem
such reliance appropriate as to certain matters on statements, representations
and other information obtained from public officials, officers of the Company
and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL
By: /s/ Matthew S. Heiter
------------------------------------
Matthew S. Heiter, a shareholder
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EXHIBIT 10
FORM OF STOCK OPTION AGREEMENT
DANEK GROUP, INC., an Indiana corporation (the "Company"), hereby grants to
George Bryan (the "Optionee") an option ("Option") to purchase a total of Ten
Thousand (10,000) shares of common stock of the Company (the "Shares") at the
price determined as provided herein, and in all respects subject to the terms
and conditions contained herein.
1. Nature of the Option. This Option is not intended to be an "Incentive Stock
Option" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
2. Option Price. The option price is $26.625 for each Share.
3. Exercise of Option. This Option shall be exercisable by a written notice
which shall:
(a) state the election to exercise the Option, the number of shares in
respect of which it is being exercised, the person in whose name the
stock certificate or certificates for such Shares is to be registered,
his address and Social Security Number (or if more than one, the names
and addresses and Social Security Numbers of such persons);
(b) obtain such representations and agreements as to the holder's
investment intent with respect to such Shares as may be required by
the Company;
(c) be signed by the person or persons entitled to exercise the Option,
and if the Option is being exercised by any person or persons other
than the Optionee, be accompanied by proof, satisfactory to the
Company, of the right of such person or persons to exercise the
Option;
(d) be in writing and delivered in person or by certified mail to the
Secretary of the Company; and
(e) be accompanied by payment in full (including applicable withholding
taxes, if any as described in Section 8 of this Agreement). Payment of
the purchase price shall be in cash, currency, be certified or bank
cashiers check and/or Shares, or a combination thereof, as may be
accepted by the Company in its sole discretion.
4. Extent of Exercises. This Option shall be exercisable at any time in such
amounts and at such times as are set forth below:
33 1/3% per year on each anniversary date of the Date of Grant for
each of the next 3 years; the foregoing rights to exercise shall be
cumulative.
5. Restrictions on Exercise. This Option may not be exercised if the issuance
of the Shares upon such exercise would constitute a violation of any
applicable federal or state securities or other law or regulation. As a
condition to its exercise of this Option, the Company may require the
Optionee to make any representation and warranty to the Company as may be
required by any applicable law or regulation or may otherwise be
appropriate.
6. Nontransferability of Option. This Option may not be sold, assigned,
transferred, exchanged, pledged, hypothecated or otherwise encumbered,
other than by will or the laws of descent and distribution. During the
lifetime of the Optionee, this Option is exercisable only by him. The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
7. Termination of Options. Except as otherwise provided herein, the Options,
to the extent not previously exercised or expired, shall terminate and
expire upon the first to occur of the following dates;
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(a) Other than as specified in Section 6(b) or 6(c), the expiration of six
(6) months after the date upon which the Optionee ceases to be a
director of the Company for any reason;
(b) The expiration of two years after the date the Optionee ceases to be a
director of the Company by reason of death or retirement;
(c) The expiration of twelve (12) months after the date upon which the
Optionee died, in the event he died within (i) the period of six (6)
months after ceasing to be a director of the Company other than by
reason of retirement or (ii) two (2) years after ceasing to be a
director of the Company by reason of retirement; and
(d) Ten years from the effective date of this Agreement.
8. Adjustment in the Event of Change in Stock. In the event of changes in the
outstanding common stock of the Company by reason of stock dividends,
recapitalizations, mergers, consolidations, split-ups, combinations or
exchanges of shares and the like, the number, class and the price of shares
of common stock of the Company subject to outstanding Options shall be
appropriately adjusted.
9. Withholding. Prior to the issuance of Shares under this Option, the
Optionee shall remit to the Company an amount sufficient to satisfy any
federal, state or local withholding tax requirements. The Optionee may
satisfy the withholding requirement in whole or in part by electing to have
the Company withhold Shares having a value equal to the amount required to
be withheld. The value of the Shares to be withheld shall be the fair
market value, as determined by the Company, of the stock on the date that
the amount of tax to be withheld is determined (the "Tax Date"). Such
election must be made prior to the Tax Date, must comply with all
applicable securities law and other legal requirements, and may not be made
unless approved in advance by the Company, in its discretion. The Company
reserves the right to make whatever further arrangements it deems
appropriate for the withholding of any taxes in connection with any
transaction contemplated by this Agreement.
10. Merger. This Agreement supersedes any other agreement, written or oral,
between the parties with respect to the subject matter hereof.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
DATE OF GRANT: July 8, 1992
DANEK GROUP, INC.
By: /s/ E. R. Pickard
--------------------------
Its: President
Agreed to and accepted this 8th day of July, 1992.
/s/ George Bryan
-------------------------------
Signature
Name of Optionee: George Bryan
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF COOPERS & LYBRAND L.L.P.
[Coopers & Lybrand
L.L.P Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in the registration statement of
Sofamor Danek Group, Inc. on Form S-8 (Stock Option Agreement dated July 8, 1992
between Sofamor Danek Group, Inc. and George Bryan) of our report dated January
31, 1997, on our audits of the consolidated financial statements and
consolidated financial statement schedule of Sofamor Danek Group, Inc. and
Subsidiaries as of December 31, 1996 and 1995, and for the three years in the
period ended December 31, 1996, which were filed with the Securities and
Exchange Commission in the Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
Memphis, Tennessee
May 6, 1997
