As filed with the Securities and Exchange Commission on January 4, 2005
Registration No. 333-121406
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
FORM S-3/A
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 incorporation or organization) (I.R.S. Employer Identification No.)
CRYOLIFE, INC.
1655 ROBERTS BOULEVARD, NW
KENNESAW, GEORGIA 30144
(770) 419-3355
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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COPIES TO:
STEVEN G. ANDERSON, PRESIDENT, CHIEF EXECUTIVE OFFICER T. CLARK FITZGERALD III, ESQ.
AND CHAIRMAN OF THE BOARD OF DIRECTORS ARNALL GOLDEN GREGORY LLP
CRYOLIFE, INC. 171 17TH STREET
1655 ROBERTS BOULEVARD, NW SUITE 2100
KENNESAW, GEORGIA 30144 ATLANTA, GEORGIA 30363
(770) 419-3355 (404) 873-8500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate Date of Commencement of Proposed Sale to the Public: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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. [ X ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE 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
All expenses, other than fees and expenses of legal or other advisors to
the selling shareholders, will be paid by CryoLife. Such expenses are as
follows:*
SEC registration fee................................ $ 5,885
NYSE listing fee.................................... 25,000
Printing expenses................................... 10,000
Accounting fees and expenses........................ 25,000
Legal fees and expenses............................. 50,000
Miscellaneous....................................... 15,115
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Total...................................... $ 131,000
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*The amounts set forth, except for the filing fees for the SEC, are estimated.
ITEM 15. 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, the Registrant's Bylaws and the indemnification agreements
entered into with the Registrant's directors and Chief Financial Officer.
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
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 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.
The Registrant has entered into indemnification agreements with each of its
directors and its Chief Financial Officer ("Indemnitees"), on the dates
indicated on Exhibit 99.1. Pursuant to such agreements, the Registrant shall
indemnify each Indemnitee whenever he or she is or was a party or is threatened
to be made a party to any proceeding, including without limitation any such
proceeding brought by or in the right of the Registrant, because he or she is or
was a director or officers of the Registrant
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or is or was serving at the request of the Registrant as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
or because of anything done or not done by the Indemnitee in such capacity,
against expenses and liabilities (including the costs of any investigation,
defense, settlement or appeal) actually and reasonably incurred by the
Indemnitee or on his or her behalf in connection with such proceeding, if he or
she 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 Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that an Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the Registrant, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
or her conduct was unlawful. Unless a determination has been made that the
Indemnitee is not entitled to indemnification pursuant to the agreement, all
reasonable expenses incurred by or on behalf of such Indemnitee shall be
advanced from time to time by the Registrant to the Indemnitee within thirty
(30) days after the Registrant's receipt of a written request for an advance of
expenses by such Indemnitee, whether prior to or after final disposition of a
proceeding. If required by law, Indemnitee shall agree, at the time of such
advance, to repay the amounts advanced if it is ultimately determined that
Indemnitee is not entitled to be indemnified under the terms of the agreement.
Any advances made shall be unsecured and no interest shall be charged thereon.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "1933 Act"), may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions of the Georgia
Business Corporation Code and the Registrant's articles of incorporation and
bylaws, the Registrant has been informed that indemnification is considered by
the Commission to be against public policy and therefore unenforceable.
ITEM 16. 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
Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.)
3.2 Bylaws of the Company, as amended. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Report on Form 8-K filed November
8, 2004.)
3.3 Articles of Amendment to the Articles of Incorporation of
CryoLife. (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 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.)
4.3 Rights Agreement between the Company and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent, dated as of
November 27, 1995. (Incorporated by reference to Exhibit 10.36 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000.)
4.4 First Amendment to Rights Agreement, effective June 1, 1997,
executed by the Company and American Stock Transfer & Trust
Company, as successor Rights Agent. (Incorporated by reference to
the Registrant's Registration Statement on Form S-3 (Commission
File No. 333-112673.))
4.5+ Form of Depositary Agreement.
4.6+ Form of Depositary Receipt.
5.1* Opinion of Arnall Golden Gregory LLP regarding legality of the
common stock and preferred stock.
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5.2* Opinion of Arnall Golden Gregory LLP regarding legality of the
depositary shares.
12.1* Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Arnall Golden Gregory LLP (included as part of Exhibit
5 hereto).
23.2* Consent of Deloitte & Touche LLP.
23.3* Notice regarding consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in the signature pages of the initial
filing of this registration statement).
99.1** Form of Indemnification Agreement for Directors and Chief
Financial Officer of the Registrant.
_____________________________
* Previously filed.
**Filed herewith.
+ To be filed by amendment or as an exhibit to a current report on Form 8-K of
the Registrant.
ITEM 17. UNDERTAKINGS
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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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 paragraphs (1)(i) and (1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by registrants pursuant to
section 13 or section 15(d) of the Exchange Act 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 from 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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(4) That, for purposes of determining 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.
(5) 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 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 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-3 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 January 4, 2005.
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
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 and January 4, 2005
----------------------------------------- Chairman of the Board of Directors
Steven G. Anderson (Principal Executive Officer)
/s/ D. Ashley Lee Executive Vice President, Chief January 4, 2005
----------------------------------------- Operating Officer and Chief Financial
D. Ashley Lee Officer (Principal Financial and
Accounting Officer)
* Director January 4, 2005
-----------------------------------------
Thomas F. Ackerman
* Director January 4, 2005
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Dan Bevevino
* Director January 4, 2005
-----------------------------------------
John M. Cook
* Director January 4, 2005
-----------------------------------------
Ronald Charles Elkins, M.D.
* Director January 4, 2005
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Virginia C. Lacy
* Director January 4, 2005
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Ronald D. McCall
* Director January 4, 2005
-----------------------------------------
Bruce J. Van Dyne, M.D.
*By: /s/ D. Ashley Lee
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D. Ashley Lee, Attorney in Fact
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EXHIBIT INDEX
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
Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.)
3.2 Bylaws of the Company, as amended. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Report on Form 8-K filed November
8, 2004.)
3.3 Articles of Amendment to the Articles of Incorporation of
CryoLife. (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 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.)
4.3 Rights Agreement between the Company and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent, dated as of
November 27, 1995. (Incorporated by reference to Exhibit 10.36 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000.)
4.4 First Amendment to Rights Agreement, effective June 1, 1997,
executed by the Company and American Stock Transfer & Trust
Company, as successor Rights Agent. (Incorporated by reference to
the Registrant's Registration Statement on Form S-3 (Commission
File No. 333-112673.))
4.5+ Form of Depositary Agreement.
4.6+ Form of Depositary Receipt.
5.1* Opinion of Arnall Golden Gregory LLP regarding legality of the
common stock and preferred stock.
5.2* Opinion of Arnall Golden Gregory LLP regarding legality of the
depositary shares.
12.1* Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Arnall Golden Gregory LLP (included as part of Exhibit
5 hereto).
23.2* Consent of Deloitte & Touche LLP.
23.3* Notice regarding consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in the signature pages of the initial
filing of this registration statement).
99.1** Form of Indemnification Agreement for Directors and Chief
Financial Officer of the Registrant.
_____________________________
* Previously filed.
**Filed herewith.
+ To be filed by amendment or as an exhibit to a current report on Form 8-K of
the Registrant.