As filed with the Securities and Exchange Commission on October 5, 2001
Registration No. 333-66764
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONMED CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 16-0977505
(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification number)
525 FRENCH ROAD
UTICA, NEW YORK 13502-5994
(315) 624-3000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
DANIEL S. JONAS
VICE PRESIDENT - LEGAL AFFAIRS
AND GENERAL COUNSEL
525 FRENCH ROAD
UTICA, NEW YORK 13502-5994
(315) 624-3208
(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: At such
time or times as may be determined by the selling shareholders after this
registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
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, please 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM
SHARES TO AMOUNT TO BE OFFERING PRICE PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED PER UNIT (1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, par value $0.01 per
share.......................... 1,974,078 shares(2) $16.735 $33,036,195 $8,260(3)
============================================================================================================================
(1) Estimated in accordance with Rule 457(c) under the Securities Act of 1933
solely for purposes of calculating the registration fee (based on the
average of the high and low prices of CONMED Corporation Common Stock as
reported on the Nasdaq Stock Market on October 2, 2001).
(2) The number of shares registered includes 1,316,052 shares of common stock
referred to when this registration was initially filed on August 3, 2001
and 658,026 shares of common stock issued in the form of a stock dividend
on September 7, 2001. Pursuant to Rule 416 under the Securities Act, the
number of shares registered also includes an indeterminate number of shares
of common stock as may be issuable from time to time as a result of stock
splits, stock dividends, recapitalizations or similar events.
(3) A registration fee of $10,042 was previously paid with the filing of this
Registration Statement on August 3, 2001.
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 OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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TEXT OF RED HERRING
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion)
Dated October 5, 2001
CONMED CORPORATION
1,974,078 SHARES OF COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
This prospectus relates to an offering by the selling shareholders of
1,974,078 shares of common stock of CONMED Corporation. 1,950,000 of the shares
offered by this prospectus were acquired by a selling shareholder in connection
with our acquisition of several of its minimal access surgery product lines and
24,078 of the shares offered by this prospectus were acquired by a selling
shareholder as a payment for a patent license. CONMED will not receive any of
the proceeds from the sale of the shares.
The selling shareholders have advised us that each proposes to offer the
shares from time to time and in any of several different ways. The selling
shareholders may offer shares:
o through brokers in ordinary brokerage transactions,
o to underwriters or dealers in negotiated transactions or
o by a combination of these methods of sale.
The selling shareholders may offer shares at various prices, including:
o at fixed prices,
o at market prices at the time of sale,
o at prices related to prevailing market prices or
o at negotiated prices.
CONMED's common stock is currently listed on the Nasdaq Stock Market under
the symbol "CNMD". On October 4, 2001, the last sale reported on the Nasdaq
Stock Market was $17.89 per share.
------------------------
AN INVESTMENT IN THE SHARES INVOLVES SIGNIFICANT RISKS. PLEASE READ THE
INFORMATION UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 3 TO LEARN ABOUT
SOME FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SHARES OF COMMON STOCK.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY
OR ACCURACY OF THIS PROSPECTUS. IT IS ILLEGAL FOR ANYONE TO TELL YOU OTHERWISE.
------------------------
NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS
AN OFFER TO SELL OR TO BUY ONLY THE SHARES OFFERED BY THIS PROSPECTUS, BUT ONLY
UNDER CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE
INFORMATION CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY TO THE DATE BELOW.
THE DATE OF THIS PROSPECTUS IS OCTOBER , 2001.
TABLE OF CONTENTS
PAGE
----
Forward-Looking Statements....................................................2
CONMED Corporation............................................................3
Recent Developments...........................................................3
Risk Factors..................................................................4
Where You Can Find More Information...........................................7
Description of Capital Stock..................................................8
Selling Shareholders..........................................................9
Shares Eligible for Future Sale..............................................10
Plan of Distribution.........................................................10
Use of Proceeds..............................................................11
Validity of Common Stock.....................................................11
Experts......................................................................11
FORWARD-LOOKING STATEMENTS
FORWARD-LOOKING STATEMENTS MADE IN THIS PROSPECTUS
In this prospectus, we make forward-looking statements about our financial
condition, results of operations and business. Forward-looking statements are
statements made by us concerning events that may or may not occur in the future.
These statements may be made directly in this document or may be "incorporated
by reference" from other documents. You can find many of these statements by
looking for words like "believes," "expects," "anticipates," "estimates" or
similar expressions.
FORWARD-LOOKING STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE
Forward-looking statements involve known and unknown risks, uncertainties
and other factors, including those identified under "Risk Factors" below,
elsewhere in this prospectus and incorporated by reference in this prospectus
that may cause our actual results, performance or achievements, or industry
results, to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
factors include, among others, the following:
o general economic and business conditions;
o changes in customer preferences;
o competition;
o changes in technology;
o the introduction of new products;
o the integration of any acquisition, including the integration of
transferred employees;
o changes in business strategy;
o the possibility that United States or foreign regulatory and/or
administrative agencies might initiate enforcement actions against us or
our distributors;
o our indebtedness;
o quality of our management and business abilities and the judgment of our
personnel;
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o the availability, terms and deployment of capital;
o the risk of litigation, especially patent litigation as well as the cost
associated with patent and other litigation;
o changes in regulatory requirements; and
o various other factors referenced in this prospectus, our Form 10-K and our
June 30, 2001 Form 10-Q.
See "Item 7: Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Item 1: Business" in our Form 10-K for a further
discussion of these factors. You are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the date hereof. We do
not undertake any obligation to publicly release any revisions to these
forward-looking statements to reflect events or circumstances after the date of
this prospectus or to reflect the occurrence of unanticipated events.
CONMED CORPORATION
CONMED is a medical technology company specializing in instruments and
implants for arthroscopic sports medicine, and powered surgical instruments, for
orthopedic, ENT, neurosurgery and other surgical specialties. We are also a
leading developer, manufacturer and supplier of advanced medical devices,
including RF electrosurgery systems used in all types of surgery, ECG electrodes
for heart monitoring, and minimally invasive surgical devices. Our products are
used in a variety of clinical settings, such as operating rooms, surgery
centers, physicians' offices and critical care areas of hospitals.
We have used strategic business acquisitions to broaden our product
offerings, to increase our market share in certain product lines and to realize
economies of scale. During the last six years, we have completed seven
significant business acquisitions. Completed acquisitions, together with
internal growth, have resulted in a compound annual growth rate in net sales of
33% between 1996 and 2000.
Our executive offices are located at 525 French Road, Utica, New York
13502-5994. Our telephone number is (315) 625-3208 and our internet address is
www.conmed.com.
RECENT DEVELOPMENTS
ACQUISITION OF PRODUCT LINES FROM IMAGYN MEDICAL TECHNOLOGIES
On July 6, 2001, we completed the acquisition of certain minimal access
surgery product lines from Imagyn Medical Technologies. The products acquired
consist of various single-use and "reposable" (devices integrating reusable and
disposable, single-use components) instruments such as trocars, handheld
instruments and tissue ligating devices enabling minimal access surgical
techniques. We also acquired Imagyn's line of Reflex(R) skin staplers for wound
closure.
Under the terms of the acquisition agreement, we issued to Imagyn 1.3
million shares of common stock. The issued stock is subject to a 90-day lock-up
restriction and certain other sales restrictions, and Imagyn has certain
registration rights. The shares issued to Imagyn are being registered under this
Registration Statement.
COMMON STOCK DIVIDEND
On August 9, 2001, we declared a common stock dividend of one share of
common stock for every two shares of common stock owned by shareholders of
record at the close of business on August 21, 2001. On September 7, 2001, we
paid the common stock dividend.
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RISK FACTORS
Purchase of the shares of common stock offered by this prospectus involves
various risks. These risks include the principal factors listed below and the
other matters set forth in this prospectus or incorporated by reference in this
prospectus. You should carefully consider all of these risks.
OUR SUBSTANTIAL LEVERAGE AND DEBT SERVICE REQUIREMENTS MAY FORCE US TO
ADOPT ALTERNATIVE BUSINESS STRATEGIES. We have indebtedness which is substantial
in relation to our shareholders' equity, as well as interest and debt service
requirements that are significant compared to our cash flow from operations. As
of June 30, 2001, we had $367.7 million of debt outstanding, which represented
about 60% of total capitalization.
The degree to which we are leveraged could have important consequences to
investors, including but not limited to the following:
o a substantial portion of our cash flow from operations must be dedicated to
debt service and will not be available for operations, capital
expenditures, acquisitions and other purposes;
o our ability to obtain additional financing in the future for working
capital, capital expenditures, acquisitions or general corporate purposes
may be limited or impaired; and
o certain of our borrowings, including our borrowings under our principal
bank credit agreement, which we refer to as our credit facility, are and
will continue to be at variable rates of interest, which exposes us to the
risk of increased interest rates.
Our ability to satisfy our obligations will depend upon our future
operating performance, which will be affected by prevailing economic conditions
and financial, business and other factors, many of which are beyond our control.
There can be no assurance that our operating results will be sufficient for us
to meet our obligations. In addition, if we are unable to service our
indebtedness, we will be forced to adopt an alternative strategy that may
include actions such as foregoing acquisitions, reducing or delaying capital
expenditures, selling assets, restructuring or refinancing our indebtedness or
seeking additional equity capital. There can be no assurance that any of these
strategies could be implemented on terms acceptable to us, if at all.
In the event of any default under our credit facility, the credit facility
lenders could elect to declare all amounts borrowed under our credit facility,
together with accrued interest, to be due and payable. If we were unable to
repay such borrowings, the credit facility lenders could proceed against the
collateral securing the credit facility, which consists of substantially all of
our property and assets.
OUR FINANCIAL PERFORMANCE IS SUBJECT TO THE RISK OF BUSINESS ACQUISITIONS,
INCLUDING THE EFFECTS OF INCREASED BORROWING AND THE INTEGRATION OF BUSINESSES.
An element of our business strategy has been to expand through acquisitions and
we may seek to pursue acquisitions in the future. Our success is dependent in
part upon our ability to effectively integrate acquired operations with our
operations. We also rely on sellers for transition assistance. While we believe
that we have sufficient management and other resources to accomplish the
integration of our past and future acquisitions, there can be no assurance in
this regard or that we will not experience difficulties with customers,
suppliers, distributors, personnel or others. In addition, while we are
generally entitled to customary indemnification from sellers of businesses for
any difficulties that may have arisen prior to our acquisition of each business,
the amount and time for claiming under these indemnification provisions is
limited. There can be no assurance that we will be able to identify and make
acquisitions on acceptable terms or that we will be able to obtain financing for
such acquisitions on acceptable terms. As a result, our financial performance is
now and will continue to be subject to various risks associated with the
acquisition of businesses, including the financial effects associated with any
increased borrowing required to fund such acquisitions or with the integration
of such businesses.
OUR CREDIT FACILITY CONTAINS COVENANTS THAT MAY LIMIT OUR FLEXIBILITY OR
PREVENT US FROM TAKING ACTIONS. Our credit facility contains certain restrictive
covenants which will affect, and in many respects significantly limit or
prohibit, among other things, our ability to:
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o incur indebtedness;
o make prepayments of certain indebtedness;
o make investments;
o engage in transactions with affiliates;
o sell assets;
o engage in mergers and acquisitions; and
o realize important elements of our business strategy.
Our credit facility also requires us to meet certain financial ratios and
tests. These covenants may prevent us from integrating our acquired businesses,
pursuing acquisitions, significantly limit our operating and financial
flexibility and limit our ability to respond to changes in our business or
competitive activities.
THE HIGHLY COMPETITIVE MARKET FOR OUR PRODUCTS MAY CREATE ADVERSE PRICING
PRESSURES. The market for our products is highly competitive. Many of these
competitors offer a range of products in areas other than those in which we
compete, which may make such competitors more attractive to surgeons, hospitals,
GPOs and others. In addition, many of our competitors are larger and have
greater financial resources than we do and offer a range of products broader
than our products. Competitive pricing pressures or the introduction of new
products by our competitors could have an adverse effect on our revenues and
profitability. Some of the companies with which we now compete or may compete in
the future have or may have more extensive research, marketing and manufacturing
capabilities and significantly greater technical and personnel resources than we
do, and may be better positioned to continue to improve their technology in
order to compete in an evolving industry.
Demand for and use of our products may fluctuate as a result of:
o changes in surgeon preferences;
o the introduction of new products or new features to existing products;
o the introduction of alternative surgical technology; and
o advances in surgical procedures and discoveries or developments in the
health care industry.
In recent years, the health care industry has undergone significant change
driven by various efforts to reduce costs, including efforts at national health
care reform, trends toward managed care, cuts in Medicare, consolidation of
health care distribution companies and collective purchasing arrangements by
office-based health care practitioners. There can be no assurance that demand
for our products will not be adversely affected by such fluctuations and trends.
THE LOSS OR INVALIDITY OF OUR PATENTS MAY REDUCE OUR COMPETITIVE ADVANTAGE.
Much of the technology used in the markets in which we compete is covered by
patents. We have numerous U.S. patents and corresponding foreign patents on
products expiring at various dates from 2001 through 2018 and have additional
patent applications pending. See "Item 1: Business -- Research and Development
Activities" in our Form 10-K for a further description of our patents. Although
we do not rely solely on our patents to maintain our competitive position, the
loss of our patents could reduce the value of the related products and any
related competitive advantage. Competitors may also be able to design around our
patents and to compete effectively with our products. Also, our competitors may
allege that our products infringe their patents, leading to voluntary or
involuntary loss of sales from those products. In addition, the cost to
prosecute infringements of our patents or the cost to defend our products
against patent infringement actions by others could be substantial. There can be
no assurance that pending patent applications will
-5-
result in issued patents, that patents issued to or licensed by us will not be
challenged by competitors or that such patents will be found to be valid or
sufficiently broad to protect our technology or provide us with a competitive
advantage.
FAILURE TO COMPLY WITH REGULATORY REQUIREMENTS COULD RESULT IN RECALLS,
FINES OR MATERIALLY ADVERSE IMPLICATIONS. All of our products are classified as
medical devices subject to regulation by the FDA. As a manufacturer of medical
devices, our manufacturing processes and facilities are subject to on-site
inspection and continuing review by the FDA for compliance with the "Quality
System Regulations." Failure to comply with applicable domestic and/or foreign
requirements can result in:
o fines or other enforcement actions;
o recall or seizure of products;
o total or partial suspension of production;
o withdrawal of existing product approvals or clearances;
o refusal to approve or clear new applications or notices; and
o criminal prosecution.
Many of our products are also subject to industry-set standards. The
failure to comply with Quality System Regulations or industry-set standards
could have a material adverse effect on our business, financial condition or
results of operations.
We are subject to product recall. Although no recall has had a material
adverse effect on our business, financial condition or results of operations,
there can be no assurance that regulatory issues may not have a material adverse
effect in the future.
OUR SIGNIFICANT INTERNATIONAL OPERATIONS SUBJECT US TO RISKS ASSOCIATED
WITH OPERATING IN FOREIGN COUNTRIES. A portion of our operations are conducted
outside the United States. About 27% of our 2000 net sales constituted foreign
sales. As a result of our international operations, we are subject to risks
associated with operating in foreign countries, including:
o devaluations and fluctuations in currency exchange rates;
o imposition of limitations on conversions of foreign currencies into dollars
or remittance of dividends and other payments by foreign subsidiaries;
o imposition or increase of withholding and other taxes on remittances and
other payments by foreign subsidiaries;
o trade barriers;
o political risks, including political instability;
o reliance on third parties to distribute our products;
o hyperinflation in certain foreign countries; and
o imposition or increase of investment and other restrictions by foreign
governments.
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There can be no assurance that such risks will not have a material adverse
effect on our business and results of operations.
OUR INSURANCE COVERAGE MAY BE INSUFFICIENT TO COVER THE NATURE AND AMOUNT
OF ANY PRODUCT LIABILITY CLAIMS. The nature of our products as medical devices
and today's litigious environment in the United States should be regarded as
potential risks that could significantly and adversely affect our financial
condition and results of operations. We maintain insurance to protect against
claims associated with the use of our products, but there can be no assurance
that our insurance coverage would adequately cover the amount or nature of any
claim asserted against us. See "Item 3: Legal Proceedings" in our Form 10-K for
a further discussion of the risk of product liability actions and our insurance
coverage.
WHERE YOU CAN FIND MORE INFORMATION
THE REGISTRATION STATEMENT
We have filed a registration statement with the SEC that registers the
shares offered by this prospectus.
The registration statement that we filed with the SEC, including the
attached exhibits and schedules, contains additional relevant information about
CONMED and its shares of common stock. The SEC allows us to omit some
information included in the registration statement from this prospectus. You
should read the entire registration statement in order to obtain this additional
information.
FILINGS WITH THE SEC
In addition, we file reports, proxy statements and other information with
the SEC on a regular basis. You may read and copy this information at the
following locations of the SEC:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Further information on the operation of the
SEC's Public Reference Room in Washington, D.C. can be obtained by calling the
SEC at 1-800-SEC-0330.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like CONMED, who
file electronically with the SEC. The address of that site is
http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
THE SEC ALLOWS US TO "INCORPORATE BY REFERENCE" INFORMATION INTO THIS
PROSPECTUS. THIS MEANS THAT WE CAN DISCLOSE IMPORTANT INFORMATION TO YOU BY
REFERRING YOU TO ANOTHER DOCUMENT FILED SEPARATELY WITH THE SEC. This
information incorporated by reference is a part of this prospectus, unless we
provide you with different information in this prospectus.
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC. They contain important information about
CONMED and its financial condition.
o CONMED's Annual Report on Form 10-K for the year ended December 31, 2000
(our "Form 10-K").
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o CONMED's Quarterly Reports on Form 10-Q for the quarters ended March 31,
2001 and June 30, 2001 (our "Form 10-Qs").
o The description of our common stock contained in our Registration Statement
on Form 8-A, dated August 5, 1987, filed with the SEC under Section 12(b)
of the Exchange Act, including any amendment or reports filed under the
Exchange Act for the purpose of updating such description.
This prospectus also incorporates by reference additional documents that we
may file with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act after the time of filing of the initial registration statement and before
effectiveness of the registration statement, and after the date of this
prospectus and before the termination of this offering. These documents include
annual reports, quarterly reports and other current reports, as well as proxy
statements.
You can obtain any of the documents incorporated by reference in this
document from us or from the SEC through the SEC's web site at the address
described above. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents unless we specifically
incorporated by reference the exhibit in this prospectus. You can obtain these
documents from us by requesting them in writing or by telephone at the following
address or number:
Secretary
CONMED Corporation
525 French Road
Utica, New York 13502-5994
Telephone: (315) 624-3207
OTHER INFORMATION
We have not authorized anyone to give you any information about us or this
offering that is different from what we tell you in this prospectus or in any of
the materials that we have incorporated into this document. If anyone gives you
any other information about us, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to buy, the
securities offered by this document are unlawful, or if you are a person to whom
it is unlawful to direct these types of activities, then the offer presented in
this document does not extend to you. The information contained in this document
speaks only as of the date of this document unless the information specifically
indicates that another date applies.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock currently consists of 40,000,000 shares of
common stock, par value $0.01 per share, and 500,000 shares of preferred stock,
par value $0.01 per share.
COMMON STOCK
As of September 7, 2001, there were 25,175,679 shares of our common stock
issued and outstanding held of record by 1,205 shareholders. As of September 7,
2001, an additional 484,322 shares of common stock were reserved for issuance
under our stock option plans.
Subject to the preferences, limitations and relative rights of holders of
our preferred stock described below, the holders of our common stock are
entitled, among other things,
o to share ratably in dividends if, when, and as declared by our board of
directors out of funds legally available therefor,
o to one vote for each share held of record on all matters at all meetings of
shareholders, and
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o in the event of our liquidation, dissolution or winding-up, to share
ratably in the distribution of assets remaining after payment of debts and
expenses.
Holders of shares of our common stock have no cumulative voting rights or
preemptive rights to subscribe for or purchase any additional shares of capital
stock issued by us. Our transfer agent and registrar is Registrar and Transfer
Company.
Under New York law, a corporation may declare and pay dividends or make
other distributions in cash or its bonds or its property on its outstanding
shares, except when the corporation is insolvent or would thereby be made
insolvent, or when the declaration, payment or distribution would be contrary to
any restriction contained in the certificate of incorporation. Our certificate
of incorporation contains no such restriction. In general, dividends may be
declared or paid and other distributions may be made out of surplus only, so
that the net assets of the corporation remaining after such declaration, payment
or distribution shall at least equal the amount of its stated capital.
Our board of directors presently intends to retain future earnings to
finance the development of our business and does not presently intend to declare
cash dividends. Should this policy change, the declaration of cash dividends
will be determined by our board of directors in the light of conditions then
existing, including our financial requirements and condition and provisions
affecting the declaration and payment of dividends contained in debt agreements.
Our credit facility prohibits the payment of cash dividends and further subjects
us to compliance with various financial covenants.
PREFERRED STOCK
We are currently authorized to issue up to 500,000 shares of our preferred
stock, none of which is issued and outstanding. Our preferred stock may be
issued in one or more series by our board of directors without further action by
shareholders. Our board of directors is authorized to fix as to any such series
the dividend rate or rates, redemption prices, preferences on liquidation,
dissolution and winding-up, sinking fund terms (if any), conversion or exchange
rights (if any), voting rights and any other preferences or special rights and
qualifications.
Depending upon the rights of any preferred stock, its issuance could have
an adverse effect on holders of our common stock by delaying or preventing a
change in control, making removal of our present management more difficult or
resulting in restrictions upon the payment of dividends and other distributions
to the holders of our common stock.
COMMON STOCK WARRANT
On December 30, 1997, in connection with the acquisition of Linvatec, we
issued to Bristol-Myers-Squibb Company, a warrant exercisable in whole or in
part for up to 1,500,000 shares of our common stock at a price of $22.82 per
share. Certain registration rights are afforded under the terms of the warrant.
The number of shares and the exercise price are subject to adjustment for stock
splits, dividends, distributions and combinations. Any unexercised portion of
the warrant will expire on December 30, 2007.
SELLING SHAREHOLDERS
1,950,000 of the shares are being offered by Imagyn Medical Technologies,
Inc. under its registration rights. Imagyn acquired the shares as the result of
our acquisition on July 6, 2001 of several of its minimal access surgery product
lines. Imagyn owns no other shares of common stock of CONMED in addition to the
shares offered by this prospectus. Imagyn does not have any material
relationship with us other than in connection with our acquisition of certain of
the product lines.
24,078 of the shares are being offered by Dr. Jerome Canady and Argon
Electro-Surgical Corporation under their registration rights. Dr. Canady and
Argon Electro-Surgical acquired the shares in connection with a license under
which we have the exclusive right to sell certain products under their patents.
Dr. Canady and Argon Electro-Surgical own no other shares of common stock of
CONMED in addition to the shares offered by this prospectus.
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Neither Dr. Canady nor Argon Electro-Surgical have any material relationship
with us other than in connection with the license agreement.
SHARES ELIGIBLE FOR FUTURE SALE
The Company has outstanding 25,175,679 shares of common stock. 1,412,068
shares of common stock beneficially owned by certain persons who may be deemed
"affiliates" of the Company for purposes of Rule 144 and Rule 145 under the
Securities Act of 1933, as amended, are not freely tradeable without restriction
or further registration under the Securities Act. All of these shares are
eligible for sale in the open market in accordance with Rule 144 or Rule 145
under the Securities Act.
In general, under Rule 144 as currently in effect, any person who has
beneficially owned shares for at least one year, including persons who may be
deemed an "affiliate" of ours, is entitled to sell within any three-month period
a number of shares of our common stock that does not exceed the greater of (i)
1% of the then outstanding shares of our common stock or (ii) the average weekly
trading volume in our common stock during the four calendar weeks preceding such
sale. Such sales under Rule 144 are also subject to certain manner of sale
provisions, notice requirements and to the availability of our current public
information. In addition, any person who is not deemed our "affiliate," and who
has beneficially owned his or her shares for at least two years, is entitled to
sell such shares under Rule 144 without regard to the volume limitations, manner
of sale provisions or notice requirements.
While no predictions can be made of any effect, that open market sales of
shares or the availability of shares for sale will have on the market price
prevailing from time to time, sales of substantial amounts of our common stock
in the public market, or the perception that such sales will occur, could
adversely affect market prices and trading activities in our common stock.
PLAN OF DISTRIBUTION
METHODS OF DISTRIBUTION BY SELLING SHAREHOLDERS
Each of the selling shareholders advised us that it proposes to offer any
or all of the shares for sale from time to time and in several different ways.
For example, it may make sales:
o on the Nasdaq Stock Market,
o on another interdealer quotation system or stock exchange on which our
common stock is quoted or listed at the time,
o through negotiated transactions or
o otherwise at prices related to prevailing market prices or at negotiated
prices.
From time to time, the selling shareholders may offer shares through
brokers, dealers or agents, who may receive compensation in the form of
discounts, concessions or commissions from any selling shareholder, agents
and/or the purchasers for whom they may act as agent.
PREPARATION OF AN ADDITIONAL PROSPECTUS TO DESCRIBE THE METHOD OF SALE
If necessary, we will prepare another prospectus to describe the method of
sale in greater detail. As of the date of this prospectus, we do not know of any
arrangements by the selling shareholders to sell the shares, nor do we know
which brokerage firms the selling shareholders may select to sell the shares. In
addition, the selling shareholders may sell the shares without the aid of a
registration statement if it follows certain SEC rules. More than 10 percent of
the net proceeds of this offering may be received by an affiliate of a NASD
member which is participating in the distribution of the shares. The offering
will be made in compliance with Rule 2710(c)(8) of the NASD Conduct Rules.
-10-
PARTIES THAT MAY BE DEEMED UNDERWRITERS
The selling shareholders and any brokers, dealers or agents that
participate in the distribution of the shares may be considered "underwriters"
under the federal securities laws. If a selling shareholder is considered an
underwriter, any profits on the sale of shares by it and any associated
discounts, concessions or commissions may be considered underwriting
compensation under the federal securities laws. In addition, if a selling
shareholder is considered an underwriter, the selling shareholder may be subject
to some liabilities for misstatements and omissions in the registration
statement.
REGULATION OF SALES BY SELLING SHAREHOLDERS
The selling shareholders and any other person participating in a sale or
distribution of shares will be subject to applicable provisions of the
Securities Exchange Act of 1934, which is the federal statute regulating sales
of securities. Some rules and regulations issued by the SEC, including some
limitations on activities during securities offerings and anti-fraud provisions,
may limit when the selling shareholders, or any other person, may sell or
purchase the shares.
In some jurisdictions, the state securities laws require that the shares be
offered or sold only through registered or licensed brokers or dealers. In
addition, in some jurisdictions the shares may not be offered or sold unless
they have been registered or qualified for sale in such jurisdictions or an
exemption from registration or qualification is available and is complied with.
EXPENSES
We will not receive any part of the proceeds from the sale of the shares.
We will bear expenses we incur in registering the shares with the SEC. We
estimate these expenses to be approximately $60,000. If and when we are required
to update this prospectus, we may incur additional expenses in excess of the
amount estimated above. The selling shareholders will pay their own expenses,
including brokerage commissions, legal fees or similar expenses, in offering and
selling the shares.
USE OF PROCEEDS
The shares may be sold by this prospectus by the selling shareholders. We
will not receive any proceeds from the sales of the shares, but we will bear
some of the expenses. See "Plan of Distribution -- Expenses" for a description
of the payment of expenses.
VALIDITY OF COMMON STOCK
The validity of the shares offered hereunder has been passed upon for
CONMED by Daniel S. Jonas, its Vice President - Legal Affairs and General
Counsel. As of June 30, 2001, Mr. Jonas owned no shares of our common stock and
had options to acquire 51,000 shares of our common stock.
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2000, have been so incorporated in reliance upon the report of
PricewaterhouseCoopers LLP, independent accountants, given upon the authority of
said firm as experts in accounting and auditing.
-11-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an itemization of all estimated expenses in
connection with the issuance and distribution of the securities being
registered, none of which are payable by the selling shareholders:
Registration Statement Filing Fee................... $ 10,042
Legal Fees and Expenses............................. 30,000
Accounting Fees and Expenses........................ 10,000
Miscellaneous Fees and Expenses..................... 9,958
---------
Total.......................................... $ 60,000
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 722 of the New York Business Corporation Law (the "New York Law")
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, "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 of
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 New York Law Section 721, CONMED's Bylaws, as amended on
December 26, 1990, provide a broader basis for indemnification in accordance
with and as permitted by New York Law Article 7.
Section 6.6 of CONMED's Bylaws 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 bylaws to the contrary notwithstanding, no
elimination of this bylaw, and no amendment of this bylaw 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
bylaw 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
bylaw 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 bylaw. The indemnification of any person provided by
this bylaw 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 bylaw, 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 bylaw 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 bylaw, 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 bylaw, 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 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 Opinion of Daniel S. Jonas as to validity of the common stock
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Daniel S. Jonas (included in Exhibit 5.1)
24.1 Powers of Attorney (previously filed)
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:
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (as amended, and
together with the rules and regulations thereunder, the
"Securities Act");
(b) 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 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 percent change in the maximum
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(c) 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)(a) and (1)(b) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (as amended, and
together with the rules and regulations thereunder, the "Securities
Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act) 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) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of the registration statement
as of the time it was declared effective.
(6) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus 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.
(7) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise (other than pursuant to insurance), the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and may, therefore, be 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 and other than insurance payments) 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 and will be governed by the final
adjudication of such issue.
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 the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Utica and the State of New York, on this 4th day
of October, 2001.
CONMED CORPORATION
By: /s/ Daniel S. Jonas
--------------------------------
Name: Daniel S. Jonas, Esq.
Title: Vice President-Legal Affairs
General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to the registration statement has been signed by the following
persons in the capacities indicated on October 4, 2001.
SIGNATURE TITLE
--------- -----
* Chairman of the Board
--------------------------------- Chief Executive Officer and Director
Eugene R. Corasanti
* Vice President-Finance
--------------------------------- and Chief Financial Officer
Robert D. Shallish, Jr. (Principal Financial Officer)
* President, Chief Operating
--------------------------------- Officer and Director
Joseph J. Corasanti
* Vice President - Corporate Controller
--------------------------------- (Principal Accounting Officer)
Luke A. Pomilio
* Director
---------------------------------
Bruce F. Daniels
* Director
---------------------------------
Robert E. Remmell
* Director
---------------------------------
William D. Matthews
* Director
---------------------------------
Stuart J. Schwartz
*By: /s/ Daniel S. Jonas
---------------------------
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
5.1 Opinion of Daniel S. Jonas as to the validity Previously filed.
of the common stock
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith.
23.2 Consent of Daniel S. Jonas Previously filed.
24.1 Powers of Attorney Previously filed.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Amendment No. 1 to
the Registration Statement on Form S-3 of our report dated February 7, 2001
relating to the financial statements and financial statement schedule, which
appears in CONMED Corporation's Annual Report on Form 10-K for the year ended
December 31, 2000. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Syracuse, New York
October 5, 2001