Registration Statement No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CRYOLIFE, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-2417093
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1655 ROBERTS BOULEVARD, NW, KENNESAW, GEORGIA 30144
(Address, including zip code, of registrant's principal executive offices)
CRYOLIFE, INC. DIRECTORS STOCK OPTIONS
(Full Title of Plan)
STEVEN G. ANDERSON, PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD OF DIRECTORS
CRYOLIFE, INC.
1655 ROBERTS BOULEVARD, NW
KENNESAW, GEORGIA 30144
(770) 419-3355
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
COPY TO:
B. JOSEPH ALLEY, JR. ESQ.
ARNALL GOLDEN & GREGORY, LLP
2800 ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3450
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum Amount of
Title of securities Amount to be maximum offering aggregate registration
to be registered registered price per share offering price fee*
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Common Stock, 97,500 Shares $17.25 $1,496,625 $395.11
$.01 par value
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* Calculated pursuant to Rule 457(h) as follows: (a) with respect to 60,000
shares, based upon the exercise price of $17.25 and (b) with respect to
37,500 shares, based upon the exercise price of $12.31 per share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K filed with respect to the
Registrant's fiscal year ended December 31, 1999.
(b) The Registrant's Quarterly Reports on Form 10-Q filed with respect to
the Registrant's fiscal quarters ended March 31, 2000 and June 30, 2000.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement filed under Section 12 of the Securities
Exchange Act of 1934, including any amendment or report filed for the purpose of
updating such description.
(d) All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this registration statement which
indicates that all of the shares of Common Stock offered have been sold or which
deregisters all of such shares 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 or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Florida corporation. The following summary is qualified
in its entirety by reference to the complete text of the Florida Business
Corporation Act (the "FBCA"), the Registrant's Restated Articles of
Incorporation, and the Registrant's Bylaws.
Under Section 607.0850(1) of the FBCA, a corporation may indemnify any of
its directors and officers against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding (including any
appeal thereof) (i) if such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and (ii) with respect to any criminal action or proceeding, he or
she had no reasonable cause to believe his or her conduct was unlawful. In
actions brought by or in the right of the corporation, however, Section
607.0850(2) provides that no indemnification shall be made in respect of any
claim, issue or matter as to which the director or officer shall have been
adjudged to be liable unless, and only to the extent that, the court in which
such proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Article X of the Registrant's Restated Articles of Incorporation and Article VI
of the Registrant's Bylaws require that, if in the judgment of the majority of
the Board of Directors (excluding from such majority any director under
consideration for indemnification) the criteria set forth under Section 607.0850
1
have been met, then the Registrant shall indemnify its directors and officers
for certain liabilities incurred in the performance of their duties on behalf of
the Registrant to the maximum extent allowed by Section 607.0850 of the FBCA
(formerly Section 607.014 of the Florida General Corporation Act).
The Securities Purchase Agreement dated December 17, 1985 between the
Registrant and certain shareholders of the Registrant provides that any
investors exercising registration rights pursuant to such agreement must
indemnify the officers and directors signing the registration statement against
any liability arising from statements or omissions made in reliance upon
information furnished by such investors to the Registrant for use in such
registration statement.
The Agreement and Plan of Merger dated March 5, 1997, between Registrant
and Ideas for Medicine, Inc. ("IFM") and certain stockholders of IFM provides
that any investors exercising registration rights pursuant to such agreement
must indemnify the officers and directors signing the registration statement
against any liability arising from statements or omissions made in reliance upon
information furnished by such investors to the Registrant for use in such
registration statement.
The Registrant has purchased insurance to insure (i) the Registrant's
directors and officers against damages from actions and claims incurred in the
course of their duties, and (ii) the Registrant against expenses incurred in
defending lawsuits arising from certain alleged acts of its directors and
officers.
Pursuant to the Underwriting Agreements entered into by the Company in
connection with its initial and follow-on public offerings of Common Stock, the
Underwriters thereunder have agreed to indemnify the directors and officers of
the Company and certain other persons against certain civil liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
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3.1 Restated Certificate of Incorporation of the Company, as amended.
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (No. 33-56388).
3.2 Amendment to Articles of Incorporation of the Company dated
November 29, 1975. (Incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995).
3.3 Amendment to the Company's Articles of Incorporation to increase
the number of authorized shares of common stock from 20 million
to 50 million shares and to delete the requirement that all
preferred shares have one vote per share. (Incorporated by
reference to Exhibit 3.3 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1996).
3.4 ByLaws of the Company, as amended. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993).
4.1 Form of Certificate for the Company's Common Stock (Incorporated
by reference to Exhibit 4.2 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.2 Rights Agreement, dated as of November 27, 1995 among Registrant
Rights Agent. (Incorporated by reference to Exhibit (1) to the
Registrant's Current Report on Form 8-K dated November 27, 1995).
5* Opinion of Arnall Golden & Gregory, LLP regarding legality.
23.1* Consent of Arnall Golden & Gregory, LLP (included as part of
Exhibit 5 hereto).
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23.2* Consent of Arthur Andersen LLP.
23.3* Consent of Ernst & Young LLP.
99* Form of Directors Stock Option Agreement and Grant.
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(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 provisions described in Item 6, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceedings) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-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 September 28, 2000.
CRYOLIFE, INC.
By: /s/ Steven G. Anderson
------------------------------------
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 D.
Ashley Lee 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:
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Name Title Date
---- ----- ----
/s/ Steven G. Anderson
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Steven G. Anderson President, Chief Executive Officer and September 28, 2000
Chairman of the Board of Directors
(Principal Executive Officer)
/s/ D. Ashley Lee
- ------------------------------- Vice President of Finance and Chief September 28, 2000
D. Ashley Lee Financial Officer (Principal Financial
and Accounting Officer)
/s/ Ronald D. McCall
- ------------------------------- Secretary, Treasurer and Director September 28, 2000
Ronald D. McCall
/s/ Virginia C. Lacy
- ------------------------------- Director September 28, 2000
Virginia C. Lacy
/s/ Ronald Charles Elkins, M.D.
- ------------------------------- Director September 28, 2000
Ronald Charles Elkins, M.D.
/s/ John M. Cook
- ------------------------------- Director September 28, 2000
John M. Cook
/s/ Alexander C. Schwartz
- ------------------------------- Director September 28, 2000
Alexander C. Schwartz
/s/ Bruce J. Van Dyne, M.D.
- ------------------------------- Director September 28, 2000
Bruce J. Van Dyne, M.D.
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EXHIBIT 5
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
September 28, 2000
CryoLife, Inc.
1655 Roberts Boulevard, N.W.
Kennesaw, Georgia 30144
Re: Registration Statement on Form S-8
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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 97,500 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, LLP
--------------------------------
ARNALL GOLDEN & GREGORY, LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 7, 2000 included in CryoLife, Inc.'s Form 10-K for the year ended
December 31, 1999 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
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ARTHUR ANDERSEN LLP
Atlanta, Georgia
September 28, 2000
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EXHIBIT 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in this 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., as of and for the two years ended December 31,
1998 incorporated by reference in its Annual Report on Form 10-K for the year
ended December 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
--------------------------------
Ernst & Young
Atlanta, Georgia
September 28, 2000
8
DIRECTORS STOCK OPTION AGREEMENT AND GRANT
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THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of the ___ day of
________, (the "Grant Date"), by, between and among CYROLIFE, 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 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").
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: This Option shall vest and become exercisable on the
Option's Grant Date. This Option may be exercised at any time after its Grant
Date. 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 may exercise the Option only bye
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:
1655 Roberts Blvd., N.W.
Kennesaw, Georgia 30144
or to 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 Optionee: 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).
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.
2
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: This Agreement constitutes and sets 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
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 Georgia.
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.
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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 1933, 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.
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:
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Secretary for Corporation
OPTIONEE:
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(Print name of Optionee)
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