SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Kennesaw, State of Georgia on March 4, 1999.
CRYOLIFE, INC.
By: /s/ Steven G. Anderson
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Steven G. Anderson
President, Chief Executive Officer and Chairman
of the Board of Directors
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven G. Anderson, Ronald D. McCall and
Edwin B. Cordell, Jr. and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place, and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
Name Title Date
---- ----- ----
/s/ Steven G. Anderson President, Chief Executive Officer March 4, 1999
- ---------------------------------------------
Steven G. Anderson and Chairman of the Board of
Directors (Principal Executive
Officer)
/s/ Edwin B. Cordell, Jr. Vice President and Chief Financial March 4, 1999
- ---------------------------------------------
Edwin B. Cordell, Jr. Officer (Principal Financial and
Accounting Officer)
/s/ Ronald D. McCall Director March 4, 1999
- ---------------------------------------------
Ronald D. McCall
/s/ Benjamin H. Gray Director March 4, 1999
- ---------------------------------------------
Benjamin H. Gray
/s/ Virginia C. Lacy Director March 4, 1999
- ---------------------------------------------
Virginia C. Lacy
/s/ Ronald Charles Elkins, M.D. Director March 4, 1999
- ---------------------------------------------
Ronald Charles Elkins, M.D.
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ARNALL GOLDEN & GREGORY, LLP
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
2800 ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3450
TELEPHONE (404) 873-8500 - FACSIMILE (404) 873-8501
(404) 873-8150
(404) 873-8151
April 1, 1999
CryoLife, Inc.
1655 Roberts Boulevard, N.W.
Kennesaw, Georgia 30144
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is rendered in connection with the proposed issue and sale
by CryoLife, Inc., a Florida corporation (the "Company"), of up to 46,000 shares
of the Company's Common Stock, $.01 par value (the "Shares"), pursuant to stock
options issued to certain of the Company's directors ("Options") upon the terms
and conditions set forth in the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act") and the
prospectus utilized in connection therewith. We have acted as counsel for the
Company in connection with the issuance and sale of the Shares by the Company.
In rendering the opinion contained herein, we have relied in part upon
examination of the Company's corporate records, documents, certificates and
other instruments and the examination of such questions of law as we have
considered necessary or appropriate for the purpose of this opinion. Based upon
the foregoing, we are of the opinion that the Shares have been duly and validly
authorized, and when sold in the manner contemplated by the Options, and upon
receipt by the Company of payment therefor and issuance pursuant to a current
prospectus in conformity with the Act, the Shares will be legally issued, fully
paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission that
we are a party whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Sincerely,
/s/ ARNALL GOLDEN & GREGORY
-----------------------------------
ARNALL GOLDEN & GREGORY, LLP
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the CryoLife, Inc. Directors Stock Options, of our report
dated February 2, 1999, with respect to the consolidated financial statements of
CryoLife, Inc. incorporated by reference in its Annual Report on Form 10-K for
the year ended December 31, 1998, and the related financial statement schedule
included therein filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
March 26, 1999
FORM OF DIRECTORS STOCK OPTION AGREEMENT AND GRANT
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of the ____
day of ______________, (the "Grant Date"), by, between and among CRYOLIFE, INC.,
a Florida Corporation (the "Corporation"), and _________________, a member of
the Board of Directors of the Corporation (a "Director") and an individual
residing in _________________ (the "Optionee").
WITNESSETH:
WHEREAS, the Corporation wishes to grant to the Optionee an option (the
"Option") to purchase the number of shares of Common Stock set forth in this
Agreement and under the terms and conditions set forth herein including the
provision that the Option is not an incentive stock option under Section 422 of
the Internal Revenue Code of 1986, as amended ("Code");
NOW THEREFORE, in consideration of the foregoing, the mutual promises
and covenants contained herein and the mutual benefit to be derived therefrom
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Grant of Option: Subject to the terms and conditions set forth herein,
the Corporation hereby grants to the Optionee the option to purchase, in the
aggregate, up to _____ shares of the Common Stock (the "Shares") which shall
consist of authorized and unissued shares of the Common Stock or, at the option
of the Corporation, treasury shares of Common Stock. The Option shall be deemed
granted by the Corporation to the Optionee as of the Grant Date. This Option is
not granted pursuant to the CryoLife, Inc. Amended and Restated Non-Employees
Directors Plan (the "Plan"), but the terms of the Plan are incorporated herein
by reference. The terms of the Plan shall govern this Option. Optionee
acknowledges receipt of a copy of the Plan. The Optionee has received a
Prospectus covering the Shares subject to this Option.
2. Option Price: The price of the Option shall be the last closing price of
the Corporation's Common Stock on the New York Stock Exchange on the day of the
grant of the Option. The Option exercise price is the sum of $_______ per share
(the "Option Exercise Price").
3. Option Period: Subject to the limitations set forth in this Plan, an
Option granted under the Plan shall vest and become exercisable on the Options's
Award Date. Subject to the limitations set forth in the Plan, the Option may be
exercised at any time after its Award Date, provided that at the time of
exercise all of the conditions set forth in the Plan have been met.
Notwithstanding the foregoing, no Option may be exercised later than five years
after the date of grant thereof.
4. Termination of Option: Except as herein otherwise stated, the Option, to
the extent not previously exercised, shall terminate sixty (60) months following
the Grant Date.
5. Cessation of Service: If a grantee leaves the Board of Directors for any
reason, including without limitation resignation or death, such grantee's
Options shall remain in effect and exercisable, and shall expire as if the
grantee had remained a Non-Employee Director of the Company. Upon the death of a
Non-Employee Director, his or her Options shall be exercisable by his/her legal
representatives or heirs, but in no event may the Options be exercised beyond
the last date which they could have been exercised had the Non-Employee Director
not died.
6. Delivery of Notice: The Optionee my exercise the Option only by
delivering written notice to the Corporation of his intent to exercise the
Option (the "Notice"). The Notice shall be delivered to the Corporation at its
principal office at:
CRYOLIFE, INC.
1655 Roberts Blvd., N.W.
Kennesaw, Georgia 30144
or such other address as may be designated by the Corporation. The Notice shall
specify the number of Shares to be purchased in accordance with this Agreement
and shall include payment in full of the Option Price.
7. Payment: The Option Exercise Price shall be paid in cash in U.S. Dollars
at the time the Option is exercised or in shares of Common Stock of the Company
having an aggregate value equal to the Option Exercise Price. If the Option
Exercise Price is paid by transfer of shares of Common Stock of the Corporation
then the value of such shares will be determined by the last closing price of
the Corporation's Common Stock on the New York Stock Exchange prior to the
exercise of the options. The Option Exercise Price may be paid by a combination
of cash and Common Stock. Subject to approval by the Board, the phrase "shares
of stock of the Company", may include shares which the director is entitled to
purchase by reason of a stock option grant, sometimes called "option shares".
8. Delivery of Shares to Optioneee: Upon the Optionee's proper exercise of
the Option, the Corporation shall deliver to the Optionee one or more
certificates evidencing the number of Shares purchased pursuant to the exercise
of the Option and such Shares shall be fully paid and nonassessable.
9. Transferability: Except as otherwise provided in this paragraph 9, the
Options granted under this Plan are not transferable other than as designated by
the grantee by will or by the laws of the descent and distribution, and during
the grantee's life, may be exercised only by the grantee. However, the grantee
may transfer the Option for no consideration to or for the benefit of the
grantee's Immediate Family (including, without limitation, to a trust for the
benefit of the grantee's Immediate Family or to a partnership or limited
liability company for one or more members of the grantee's Immediate Family or
to an IRA for the benefit of one or more members of his Immediate Family),
subject to such limits as the Board may establish, and the transferee shall
remain subject to all the terms and conditions applicable to such Option prior
to such transfer. The foregoing right to transfer the Option shall apply to the
right to consent to amendments to the grant agreement and shall also apply to
the right to transfer ancillary rights associated with the Option. The term
"Immediate Family" shall mean the grantee's spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers and grandchildren (and,
for this purpose, shall also include the grantee).
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10. Optionee Not a Shareholder: The Optionee shall not be deemed, by reason
of this option agreement, for any purposes to be a shareholder of the
Corporation with respect to any of the shares of the capital stock of the
Corporation or with respect to any of the Shares, except to the extent that the
Option has been exercised, in whole or in part, and a stock certificate
representing Shares has been issued to the Optionee. Notwithstanding this
provision, it is understood and agreed that the Corporation and the Optionee
shall make any required disclosure of the "beneficial ownership" of Shares which
may be received upon a future exercise of the Option.
11. No Restrictions on the Corporation: The grant of the Option shall not
affect in any way the right or power of the Corporation or its shareholders to
make or authorize any or all adjustments, recapitalizations, reorganizations, or
any other changes in the Corporation's capital structure or its business, or any
merger or consolidation of the Corporation, or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock or
the rights thereof or dissolution or liquidation of the Corporation, or any sale
or transfer of all or any part of the assets or business of the Corporation, or
any other corporate act or proceeding, whether of a similar character or
otherwise.
12. Reclassification, Consolidation, or Merger: The number of Option Shares
may be adjusted by the Board of Directors if certain events such as merger,
reorganization, consolidation, recapitalization, stock dividends, stock splits,
or other changes in the Company's corporate structure affecting its Common Stock
occur. No adjustments or substitution provided for in this Subsection, however,
shall require the Corporation in any Agreement to sell a fractional share, and
the total substitution or adjustment herein is and shall be limited accordingly.
13. Optionee's Representations and Warranties: By execution of this
Agreement, Optionee represents and warrants to the Company as follows:
A. Investment Representations and Warranties: The Optionee warrants
and represents to the Corporation that he is acquiring the Option and, upon
exercise of the Option, in whole or in part, the Shares for his own account
for investment purposes and not with a view to distribution, as defined in
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder. The Optionee further agrees that he will not sell, assign,
transfer or pledge the Option or any of the Shares purchased by him
pursuant to the exercise of the Option, unless and until either (i) a
registration statement under the Securities Act covering the Shares becomes
effective or (ii) the Corporation has received an opinion of counsel in
form and substance satisfactory to the Corporation and its counsel that
such sale, transfer, assignment or pledge may be accomplished without
registration under the Securities Act.
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B. Compliance with Withholding Rules: The Corporation shall have the
right to adopt and apply rules governing the exercise of the Option and the
issuance of Shares pursuant thereto which will ensure that the Corporation
will be able to comply with the applicable provisions of any federal, state
or local laws relating to the withholding of taxes.
C. No Tax Advice: The Optionee understands that neither the
Corporation nor any of its affiliates has given any advice regarding the
federal income tax consequences of (i) the Agreement, or (ii) the grant of
the Option, or (iii) the acquisition of the Shares upon exercise of the
Option. The Optionee acknowledges that he has been encouraged to seek
independent advice regarding the grant and the exercise of the Option
herein.
14. Legends: The Corporation shall have the discretion to require that the
certificates representing the Shares shall bear such legends as are necessary to
ensure the enforceability of the conditions and limitations set forth herein.
15. Binding Effect: This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors-in-interest. All
parties bound by this Agreement shall take any and all actions necessary or
appropriate to effectuate the purposes and provisions hereof.
16. Definition of "Affiliate": The term "affiliate" whenever used in this
Agreement, shall mean a person that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with the
Corporation.
17. Amendments and Waivers: Except as otherwise provided herein, no change
or modification of this Agreement shall be valid unless the same is in writing
and signed by all the parties hereto. No waiver of any provision of this
Agreement shall be valid unless in writing and signed by the person against whom
it is sought to be enforced. The failure of any party at any time to insist upon
strict performance of any condition, promise, agreement or understanding set
forth herein shall not be construed as a waiver or relinquishment of the right
to insist upon strict performance of the same condition, promise, agreement or
understanding at a future time.
18. Complete Agreement: Except as otherwise provided herein, this
Agreement, and the Plan together constitute and set forth all of the final and
complete promises, agreements, conditions, understandings, warranties and
representations among the parties hereto with respect to the Option and the
Shares, and there are no promises, agreements, conditions, understandings,
warranties or representations, oral or written, express or implied, among them
with respect to the matters set forth herein other than as set forth herein as
it may be amended from time to time.
19. Extension of Time to Perform: Whenever the time for the performance of
any action or condition contained in this Agreement falls on a Saturday, Sunday
or legal holiday, such time shall be extended to the next business date.
20. Captions and Pronouns: The captions contained in this Agreement are for
convenience of reference only and shall not in any way modify or limit the
meaning or interpretation of this Agreement. All terms and words used in this
Agreement, regardless of the number and gender in which they are used, shall be
deemed and construed to include any other number, singular or plural, and any
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other gender, masculine, feminine, or neuter, as the context or sense of this
Agreement or any section, paragraph or clause herein may require, as if such
words had been fully and properly written in the appropriate number and gender.
21. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
22. Counterparts: Any number of counterparts of this Agreement may be
signed and delivered, and each shall be considered an original and together they
shall constitute one agreement.
23. Severability: This Agreement shall not be severable in any way, but if
any provision should be held to be invalid, the invalidity shall not effect the
validity of the remainder of this Agreement.
24. Restricted Securities: Optionee recognizes and understands that this
option and the Option Shares have not been and may not be in the future
registered under the Securities Act of 193 3, as amended (the "Act"), the
Georgia Securities Act of 1973, as amended (the "Georgia Act"), or any other
state securities law. Any transfer of the option (if otherwise permitted
hereunder, and once exercised, the Option Shares) will not be recognized by the
Corporation unless such transfer is registered under the Act, the Georgia Act,
and any other applicable state securities laws or effected pursuant to an
exemption from such registration which may then be available. Any share
certificates representing the Option Shares may be stamped with legends
restricting transfer thereof in accordance with the Corporation's policy with
respect to unregistered shares of its Common Stock issued as a result of
exercise of options. The Corporation may make a notation in its stock transfer
records of the aforementioned restrictions on transfers and legends. Optionee
recognizes and understands that the Option Shares may be restricted securities
within the meaning of Rule 144 promulgated under the Act; that the exemption
from registration under Rule 144 may not be available under certain
circumstances and that Optionee's opportunity to utilize such Rule 144 to sell
the Option Shares may be limited or denied. The Corporation shall be under no
obligation to maintain or promote a public trading market for the class of
shares for which the option is granted or to make provision for adequate
information concerning the Corporation to be available to the public as
contemplated under Rule 144. The Corporation will be under no obligation to
recognize any transfer or sale of any Option Shares unless the terms and
conditions of Rule 144 are complied with by the Optionee. By acceptance hereof,
Optionee agrees that no permitted disposition of this option or any Option
Shares shall be made unless and until (i) there is then in effect a registration
statement under the Act, the Georgia Act, and applicable state securities laws
covering such proposed disposition and such disposition is made in accordance
with such registration statement, or (ii) Optionee shall have notified the
Corporation of a proposed disposition and shall have furnished to the
Corporation a detailed statement of the circumstances surrounding such
disposition, together with an opinion of counsel acceptable in form and
substance to the Corporation that such disposition will not require registration
of the shares so disposed under the Act, the Georgia Act, and any applicable
state securities laws. The Corporation shall be under no obligation to permit
such transfer or disposition on its stock transfer books unless counsel for the
Corporation shall concur as to such matters.
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25. Applicable Taxes: No later than the date as of which an amount first
becomes includable in the gross income of the Optionee for Federal income tax
purposes with respect to the exercise of the Option, the Optionee shall pay to
the Corporation, or make arrangements satisfactory to the Corporation regarding
the payment of any Federal, state, or local taxes of any kind required by law to
be withheld with respect to such amount. The obligations of the Corporation
under this Agreement shall be conditional upon such payment or arrangements and
the Corporation shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to the Optionee.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed by its duly authorized officers and the Optionee has executed this
Agreement as of the date and year first above written.
(SEAL) THE CORPORATION:
CRYOLIFE, INC.
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Attest:
- -------------------------
Secretary for Corporation
OPTIONEE:
---------------------------------------------
---------------------------------------------
(Print name of Optionee)
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