s8-109613_cnmd.htm
As filed
with the Securities and Exchange Commission on August 3, 2010
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)
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New
York
(State
or Other Jurisdiction of Incorporation or Organization)
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16-0977505
(IRS
Employer
Identification
Number)
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525
French Road
Utica,
New York 13502-5994
(Address
of Principal Executive Offices)
Amended
and Restated 2007 Non-Employee Director
Equity
Compensation Plan of CONMED Corporation
(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)
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ¨
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Accelerated
filer ý
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Non-accelerated
filer ¨ (Do
not check if a smaller reporting company)
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Smaller
reporting company ¨
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to
be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Share(2)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock, par value $.01 per share, issued
under
Amended and Restated 2007 Non-
Employee
Director Equity Compensation
Plan
of CONMED Corporation
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125,000
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$18.36
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$2,295,000
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$163.63
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(1)
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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 Amended and Restated 2007
Non-Employee Director Equity Compensation Plan of CONMED
Corporation.
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(2)
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Calculated
solely for the purpose of determining the registration fee pursuant to
Rule 457(h) based upon the average of the high and low prices reported on
the Nasdaq Stock Market on July 29, 2010, $18.36 per
share.
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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.
I-1
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents By Reference
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The
following documents filed by CONMED Corporation (the “Registrant”), pursuant to
the Securities Exchange Act of 1934, as amended (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,
2009;
(b) The
quarterly reports on Form 10-Q for the fiscal quarters ended March 31, 2010 and
June 30, 2010; and
(c) The
description of the Registrant’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 Registrant 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
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 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.
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Item
4.
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Description
of Securities
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Not
applicable.
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Item
5.
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Interests
of Named Experts and Counsel
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The
validity of the Common Stock registered hereby, shares of which are issuable by
the Registrant pursuant to the Amended and Restated 2007 Non-Employee Director
Equity Compensation Plan of CONMED Corporation, is being passed on by Daniel S.
Jonas, Vice President-Legal Affairs and General Counsel of the Registrant, who
is an executive officer of the Registrant.
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Item
6.
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Indemnification
of Directors and Officers
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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.”
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Item
7.
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Exemption
from Registration Claimed
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Not
applicable.
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Exhibit
No.
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Description
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4.1
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Amended
and Restated By-Laws -- incorporated by reference to Exhibit 3.1 of the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended September
30, 2007.
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4.2
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1999
Amendment to Certificate of Incorporation and Restated Certificate of
Incorporation of CONMED Corporation -- incorporated by reference to
Exhibit 3.2 of the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 1999.
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4.3
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Composite
Version of the Amended and Restated 2007 Non-Employee Director Equity
Compensation Plan of CONMED Corporation.
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5
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Opinion
of Daniel S. Jonas, Vice President-Legal Affairs & General Counsel of
CONMED Corporation, with respect to the securities being registered
hereunder.
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23.1
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Consent
of Daniel S. Jonas (included in the opinion filed as Exhibit 5
hereto).
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23.2
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Consent
of Independent Registered Public Accounting Firm.
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24
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Powers
of Attorney (included on the signature page of the Registration
Statement).
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(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 of
1933 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
Securities Act of 1933 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 30th day
of July, 2010.
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CONMED
Corporation
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By:
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/s/
Daniel S. Jonas |
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Name:
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Daniel
S. Jonas, Esq.
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Title:
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Vice
President-Legal Affairs & General
Counsel
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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
30th day
of July, 2010.
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Name
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Title
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Eugene R. Corasanti |
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Chairman
of the Board of Directors
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Eugene
R. Corasanti
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Joseph J. Corasanti |
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President,
Chief Executive and Director
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Joseph
J. Corasanti
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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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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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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/
Stuart J. Schwartz |
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Director
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Stuart
J. Schwartz
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Mark E. Tryniski |
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Director
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Mark
E. Tryniski
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INDEX TO
EXHIBITS
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Exhibit
No.
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Description
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4.1
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Amended
and Restated By-Laws -- incorporated by reference to Exhibit 3.1 of the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended September
30, 2007.
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4.2
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1999
Amendment to Certificate of Incorporation and Restated Certificate of
Incorporation of CONMED Corporation -- incorporated by reference to
Exhibit 3.2 of the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 1999.
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4.3
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Composite
Version of the Amended and Restated 2007 Non-Employee Director Equity
Compensation Plan of CONMED Corporation.
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5
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Opinion
of Daniel S. Jonas, Vice President-Legal Affairs & General Counsel of
CONMED Corporation, with respect to the securities being registered
hereunder.
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23.1
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Consent
of Daniel S. Jonas (included in the opinion filed as Exhibit 5
hereto).
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23.2
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Consent
of Independent Registered Public Accounting Firm.
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Power
of Attorney (included on the signature page of the Registration
Statement).
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II-7