Form S-8
As
filed
with the Securities and Exchange Commission on August 8, 2006
Registration
No. 333-_____
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CONMED
CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
| |
|
New
York
(State
or Other Jurisdiction of Incorporation or Organization)
|
|
16-0977505
(IRS
Employer
Identification
Number)
|
525
French Road
Utica,
New York 13502-5994
(Address
of Principal Executive Offices)
CONMED
Corporation 2006 Stock Incentive Plan
(Full
Title of the Plan)
Daniel
S. Jonas, Esq.
CONMED
Corporation
525
French Road
Utica,
New York 13502-5994
(315)
797-8375
(Name,
Address and Telephone Number of Agent for Service)
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
to
be Registered
|
Amount
to
be
Registered(1)
|
Proposed
Maximum
Offering
Price
Per
Share(2)
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Common
Stock, par value $.01 per share, issued under CONMED Corporation
2006
Stock Incentive Plan
|
1,000,000
|
$
19.64
|
$
19,640,000
|
$
2,102
|
(1) This
Registration Statement also relates to an indeterminate number of additional
shares of common stock that may be issued pursuant to anti-dilution and
adjustment provisions of the CONMED Corporation 2006 Stock Incentive
Plan.
(2) Calculated
solely for the purpose of determining the registration fee pursuant to Rule
457
based upon the average of the high and low prices reported on the Nasdaq Stock
Market on August 3, 2006, $19.64 per share.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY
NOTE
As
permitted by Rule 428 under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement omits the information specified
in Part I of Form S-8. The documents containing the information specified in
Part I will be delivered to the participants in the plans covered by this
registration statement as required by Rule 428(b). Such documents are not being
filed with the Securities and Exchange Commission (the “Commission”) as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents By Reference
The
following documents filed by CONMED Corporation (the “Company”), pursuant to the
Securities Exchange Act of 1934 (the “Exchange Act”) (File No. 0-16093), are
hereby incorporated by reference in this Registration Statement:
(a) The
annual report on Form 10-K for the fiscal year ended December 31, 2005;
(b) The
quarterly reports on Form 10-Q for the fiscal quarters ended March 31, 2006 and
June 30, 2006;
(c) The
current report on Form 8-K filed April 19, 2006; and
(d) The
description of the Company’s Common Stock which is contained in its Registration
Statement on Form 8-A, filed on August 5, 1987 pursuant to the Exchange
Act.
All
documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d)
of
the Exchange Act after the date of this Registration Statement and prior to
the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
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 incorporated or 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
The
validity of the Common Stock registered hereby, shares of which are issuable
by
the Registrant pursuant to the CONMED Corporation 2006 Stock Incentive Plan,
is
being passed on by Daniel S. Jonas, Vice President-Legal Affairs and General
Counsel of the Company, who as an executive officer of the Registrant is a
beneficiary under the CONMED Corporation 2006 Stock Incentive Plan.
Item
6. Indemnification
of Directors and Officers
Section
722 of the New York Business Corporation Law (the “BCL”) provides that a
corporation may indemnify an officer or director, in the case of third party
actions, against judgments, fines, amounts paid in settlement and reasonable
expenses and, in the case of derivative actions, against amounts paid in
settlement and reasonable expenses, if the director or officer “acted, in good
faith, for a purpose which he reasonably believed to be in . . . the best
interests of the corporation” and, in the case of criminal actions, in addition,
“had no reasonable cause to believe that his conduct was unlawful.” Statutory
indemnification may not be provided in derivative actions in respect of a
threatened action, or a pending action which is settled or otherwise disposed
of, or any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that
the
court in which the action was brought, or, if no action was brought, any court
of competent jurisdiction,
determines
upon application that, in view of all the circumstances of the case, the
person
is fairly and reasonably entitled to indemnity for such portion of the
settlement and expenses as the court deems proper.
As
contemplated by BCL Section 721, the Registrant’s By-laws, as amended on
December 26, 1990, provide a broader basis for indemnification in accordance
with and as permitted by BCL Article 7.
Section
6.6 of the By-Laws of the Registrant (referred to in the By-Laws as the
“Corporation”) provides as follows:
“Section
6.6. Indemnification. The Corporation shall indemnify each person made or
threatened to be made a party to any action or proceeding, whether civil or
criminal, by reason of the fact that such person or such person’s testator or
intestate is or was a director or officer of the Corporation, or serves or
served at the request of the Corporation, any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, penalties, amounts paid in settlement and reasonable
expenses, including attorneys’ fees, incurred in connection with such action or
proceeding, or any appeal therein, provided that no such indemnification shall
be made if a judgment or other final adjudication adverse to such person
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action
so
adjudicated, or that he or she personally gained in fact a financial profit
or
other advantage to which he or she was not legally entitled, and provided
further that no such indemnification shall be required with respect to any
settlement or other nonadjudicated disposition of any threatened or pending
action or proceeding unless the Corporation has given its prior consent to
such
settlement or other disposition.
The
Corporation may advance or promptly reimburse upon request any person entitled
to indemnification hereunder for all expenses, including attorneys’ fees,
reasonably incurred in defending any action or proceeding in advance of the
final disposition thereof upon receipt of an undertaking by or on behalf of
such
person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person
is
entitled, provided, however, that such person shall cooperate in good faith
with
any request by the Corporation that common counsel be utilized by the parties
to
an action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests between or among
such parties.
Anything
in these by-laws to the contrary notwithstanding, no elimination of this by-law,
and no amendment of this by-law adversely affecting the right of any person
to
indemnification or advancement of expenses hereunder shall be effective until
the 60th day following notice to such person of such action, and no elimination
of or amendment to this by-law shall deprive any person of his or her rights
hereunder arising out of alleged or actual occurrences, acts or failures to
act
prior to such 60th day.
The
Corporation shall not, except by elimination or amendment of this by-law in
a
manner consistent with the preceding paragraph, take any corporate action or
enter into any agreement which prohibits, or otherwise limits the rights of
any
person to, indemnification in accordance with the provisions of this by-law.
The
indemnification of any person provided by this by-law shall continue after
such
person has ceased to be a director, officer or employee of the Corporation
and
shall inure to the benefit of such person’s heirs, executors, administrators and
legal representatives.
The
Corporation is authorized to enter into agreements with any of its directors,
officers or employees extending rights to indemnification and advancement of
expenses to such person to the fullest extent permitted by applicable law as
it
currently exists, but the failure to enter into any such agreement, shall not
affect or limit the rights of such person pursuant to this by-law, it being
expressly recognized hereby that all directors, officers and employees of the
Corporation, by serving as such after the adoption hereof, are acting in
reliance hereon and that the Corporation is estopped to contend
otherwise.
In
case
any provision in this by-law shall be determined at any time to be unenforceable
in any respect, the other provisions shall not in any way be affected or
impaired thereby, and the affected provision shall be given the fullest possible
enforcement in the circumstances, it being the intention of the
Corporation
to afford indemnification and advancement of expenses to its directors, officers
and employees, acting in such capacities or in the other capacities mentioned
herein, to the fullest extent permitted by law.
For
purposes of this by-law, the Corporation shall be deemed to have requested
a
person to serve an employee benefit plan where the performance by such person
of
his or her duties to the Corporation also imposes duties on, or otherwise
involves services by, such person to the plan or participants or beneficiaries
of the plan, and excise taxes assessed on a person with respect to an employee
benefit plan pursuant to applicable law shall be considered indemnifiable
expenses. For purposes of this by-law, the term “Corporation” shall include any
legal successor to the Corporation, including any corporation which acquires
all
or substantially all of the assets of the Corporation in one or more
transactions.”
Item
7. Exemption
from Registration Claimed
Not
applicable.
Item
8. Exhibits
|
Exhibit
No.
|
Description
|
| |
|
|
4.1
|
Amended
and Restated By-Laws, as adopted by the Board of Directors on December
26,
1990 - incorporated herein by reference to the exhibit in the Company’s
Current Report on Form 8-K, dated March 7, 1991 (File No.
0-16093).
|
| |
|
|
4.2
|
Composite
Version of the Restated Certificate of Incorporation - incorporated
herein
by reference to Exhibit 4.2 in the Company’s Registration Statement on
Form S-8, dated May 21, 1999 (File No. 333-78987).
|
| |
|
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4.3
|
CONMED
Corporation 2006 Stock Incentive Plan.
|
| |
|
|
5
|
Opinion
of Daniel S. Jonas, Vice President-Legal Affairs & General Counsel of
CONMED Corporation, with respect to the securities being registered
hereunder.
|
| |
|
|
23.1
|
Consent
of Daniel S. Jonas (included in the opinion filed as Exhibit 5
hereto).
|
| |
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP.
|
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|
|
24
|
Power
of Attorney (included on the signature page of the Registration
Statement).
|
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,
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; and
(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 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 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 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 Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than insurance and 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.
SIGNATURES
OF CONMED CORPORATION
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
Utica, State of New York on this 7th
day of
August, 2006.
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CONMED
Corporation
|
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|
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|
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By:
|
/s/
Daniel S. Jonas
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Name:
|
Daniel
S. Jonas, Esq.
|
| |
Title:
|
Vice
President-Legal Affairs & General
Counsel
|
KNOW
ALL
MEN BY THESE PRESENTS that each individual whose signature appears below
constitutes and appoints Daniel S. Jonas his true and lawful attorney-in-fact
and agent with full power of substitution, 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 all documents in connection therewith, with
the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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 fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent 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 indicated capacities on this
7th
day of
August, 2006.
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Name
|
|
Title
|
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|
|
|
/s/
EUGENE R. CORASANTI
|
|
Chairman
of the Board and Chief Executive Officer
|
|
Eugene
R. Corasanti
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|
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/s/
ROBERT D. SHALLISH, JR.
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Vice
President - Finance and Chief Financial Officer
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Robert
D. Shallish, Jr.
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|
(Principal
Financial Officer)
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/s/
JOSEPH J. CORASANTI
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President,
Chief Operating Officer and Director
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Joseph
J. Corasanti
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/s/
LUKE A. POMILIO
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Vice
President - Corporate Controller
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Luke
A. Pomilio
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(Principal
Accounting Officer)
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/s/
BRUCE F. DANIELS
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Director
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Bruce
F. Daniels
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/s/
JO ANN GOLDEN
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Director
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Jo
Ann Golden
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/s/
STEPHEN M. MANDIA
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Director
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Stephen
M. Mandia
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/s/
WILLIAM D. MATTHEWS
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Director
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William
D. Matthews
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/s/
STUART J. SCHWARTZ
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Director
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Stuart
J. Schwartz
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INDEX
TO
EXHIBITS
|
Exhibit
No.
|
Description
|
| |
|
|
4.1
|
Amended
and Restated By-Laws, as adopted by the Board of Directors on December
26,
1990 - incorporated herein by reference to the exhibit in the Company’s
Current Report on Form 8-K, dated March 7, 1991 (File No.
0-16093).
|
| |
|
|
4.2
|
Composite
Version of the Restated Certificate of Incorporation - incorporated
herein
by reference to Exhibit 4.2 in the Company’s Registration Statement on
Form S-8, dated May 21, 1999 (File No. 333-78987).
|
| |
|
|
4.3
|
CONMED
Corporation 2006 Stock Incentive Plan.
|
| |
|
|
5
|
Opinion
of Daniel S. Jonas, Vice President-Legal Affairs & General Counsel of
CONMED Corporation, with respect to the securities being registered
hereunder.
|
| |
|
|
23.1
|
Consent
of Daniel S. Jonas (included in the opinion filed as Exhibit 5
hereto).
|
| |
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP.
|
| |
|
|
24
|
Power
of Attorney (included on the signature page of the Registration
Statement).
|
II-6