As filed with the U.S. Securities and Exchange Commission on April 18, 2003
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
(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. 2002 STOCK INCENTIVE PLAN
CRYOLIFE, INC. DIRECTORS STOCK OPTIONS
CRYOLIFE, INC. EXECUTIVE OFFICERS 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
------------------------------- --------------------- ---------------------------- ------------------------------ ------------------
Proposed Proposed maximum Amount of
Title of securities Amount to be maximum offering aggregate registration
to be registered Registered(1) price per share offering price fee(2)
------------------------------- --------------------- ---------------------------- ------------------------------ ------------------
Common Stock, 60,000 Shares $31.99 $1,919,400.00 $155.28
$.01 par value
------------------------------- --------------------- ---------------------------- ------------------------------ ------------------
Common Stock, 57,959 Shares $29.25 $1,695,300.75 $137.15
$.01 par value
------------------------------- --------------------- ---------------------------- ------------------------------ ------------------
Common Stock, 974,000 Shares $6.335 $6,170,290.00 $499.18
$.01 par value
------------------------------- --------------------- ---------------------------- ------------------------------ ------------------
Total 1,091,959 Shares $9,784,990.75 $791.61
------------------------------- --------------------- ---------------------------- ------------------------------ ------------------
(1) Includes 974,000 shares reserved for issuance under the CryoLife, Inc. 2002
Stock Incentive Plan, 60,000 shares for grants pursuant to CryoLife, Inc.
Directors Stock Options and 57,959 shares for grants pursuant to CryoLife,
Inc. Executive Officers Stock Options.
(2) Calculated pursuant to Rules 457(c) and 457(h) under the Securities Act of
1933, as amended, as follows: (a) with respect to 60,000 shares, based upon
the exercise price on the date of grant of $31.99, (b) with respect to
57,959 shares, based upon the exercise price on the date of grant of $29.25
and (c) with respect to 974,000 shares, based upon the average of the high
and low price of the Registrant's Common Stock on April 16, 2003 as listed
on the New York Stock Exchange.
INFORMATION REGARDING CERTAIN FINANCIAL STATEMENTS
INCORPORATED BY REFERENCE INTO THIS
REGISTRATION STATEMENT
On April 5, 2002, our Audit Committee recommended and the Board approved
the dismissal of Arthur Andersen LLP as our independent auditors, effective
April 9, 2002. Arthur Andersen has been found guilty of federal obstruction of
justice arising from the government's investigation of Enron Corp. It is likely
that events arising out of this verdict may adversely affect the ability of
Arthur Andersen to satisfy any claims against it including claims that may arise
out of Arthur Andersen's audit of our financial statements as of December 31,
2001 and 2000 and for the years then ended, which are incorporated by reference
into this registration statement.
Section 11(a) of the Securities Act of 1933, as amended (the "Securities
Act"), provides that if any part of a registration statement at the time it
becomes effective contains an untrue statement of a material fact or an omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, any person acquiring a security pursuant to
the registration statement (unless it is proved that at the time of the
acquisition the person knew of the untruth or omission) may sue, among others,
every accountant who has consented to be named as having prepared or certified
any part of the registration statement or as having prepared or certified any
report or valuation which is used in connection with the registration statement,
with respect to the statement in the registration statement, report or valuation
that purports to have been prepared or certified by the accountant.
Prior to the date of this registration statement, the Arthur Andersen
partners who reviewed our audited financial statements, as of December 31, 2001
and 2000 and for each of the three years in the period ended December 31, 2001
resigned from Arthur Andersen. As a result, after reasonable efforts, we have
been unable to obtain Arthur Andersen's written consent to the incorporation by
reference into this registration statement of its audit reports with respect to
our financial statements.
Under these circumstances, Rule 437(a) under the Securities Act permits the
filing of this registration statement without including herein a written consent
from Arthur Andersen. Accordingly, Arthur Andersen will not be liable under
Section 11(a) of the Securities Act for statements made in this registration
statement because it has not consented to being named as an expert in the
registration statement. As a result, you will not be able to sue Arthur Andersen
pursuant to Section 11(a)(4) of the Securities Act and therefore, your right of
recovery under that section may be limited as a result of the lack of consent.
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, 2002.
(b) The Current Report on Form 8-K filed on April 3, 2003.
(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
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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 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
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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 Annual
Report on Form 10-K for the year ended December 31, 2000).
3.2 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).
3.3 Articles of Amendment to the Articles of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.3 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 2000).
4.1 Form of Certificate for the Company's Common Stock (Incorporated by
reference to Exhibit 4.1 to the Registrant's Registrant's Registration
Statement on Form S-1 (Commission File No. 33-56388).
4.2 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).
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 Deloitte & Touche LLP
99.1* CryoLife, Inc. 2002 Stock Incentive Plan
99.2* Form of Directors Stock Option Agreement and Grant
99.3* Form of Executive Officers Stock Option Agreement and Grant
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* Filed herewith.
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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 April 18, 2003.
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 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
---- ----- ----
/s/ Steven G. Anderson President, Chief Executive Officer April 18, 2003
------------------------------------- and Chairman of the Board of
Steven G. Anderson Directors (Principal Executive
Officer)
/s/ D. Ashley Lee Vice President of Finance,
------------------------------------- Treasurer and Chief Financial April 18, 2003
D. Ashley Lee Officer (Principal Financial and
Accounting Officer)
/s/ John M. Cook Director April 18, 2003
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John M. Cook
/s/ Ronald Charles Elkins, M.D. Director April 18, 2003
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Ronald Charles Elkins, M.D.
/s/ Virginia C. Lacy Director April 18, 2003
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Virginia C. Lacy
/s/ Ronald D. McCall Director April 18, 2003
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Ronald D. McCall
/s/ Bruce J. Van Dyne, M.D. Director April 18, 2003
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Bruce J. Van Dyne, M.D.
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