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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): DECEMBER 27, 2005
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CRYOLIFE, INC.
(Exact name of registrant as specified in its charter)
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FLORIDA 1-13165 59-2417093
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
1655 ROBERTS BOULEVARD, N.W., KENNESAW, GEORGIA 30144
(Address of principal executive office) (zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (770) 419-3355
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(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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SECTION 5 CORPORATE GOVERNANCE AND MANAGEMENT.
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF PRINCIPAL OFFICERS.
On December 27, 2005, the Board of Directors of the Company approved an
increase in the size of the board to nine directors and filled the vacant
director position by appointing James S. Benson. Mr. Benson was also appointed
to the Company's Regulatory Affairs and Quality Assurance Committee.
Mr. Benson retired from the Advanced Medical Device Association (AdvaMed,
formally known as The Health Industry Manufacturers Association, HIMA) in July
2002 as Executive Vice President for Technical and Regulatory Affairs. He was
employed by the association from January 1993 through June 2002. Prior to that,
he was employed by the Food and Drug Administration (FDA) for 20 years where he
held a number of senior positions. He retired from the FDA as Director of the
Center for Devices and Radiological Health (CDRH) in December of 1992. Prior to
his position as Center Director, he served as Deputy Commissioner from July 1988
through July 1991. During that period, he served as Acting Commissioner for one
year, from December 1989 through November 1990. Prior to his position as Deputy
Commissioner, he served as Deputy Director of CDRH from 1982 to 1988. Prior to
that, he served as Deputy Director of the Bureau of Radiological Health from
1978 to 1982. Mr. Benson serves on the Board of Directors for two companies:
CytoMedix, Inc., a publicly traded company (OTCBB:CYME), and Medical Device
Consultants, Inc., a private company.
In 2003, Mr. Benson was engaged by the law firm representing the Special
Litigation Committee of the Board of Directors of the Company to serve as an
expert witness in the shareholder derivative lawsuit filed against the Company's
Directors, which was settled in August 2005. Mr. Benson invoiced that law firm a
total of approximately $52,500 for services provided in 2003. Mr. Benson was
engaged to serve as an expert witness by a different law firm representing the
Company in the securities class action shareholder lawsuit filed against the
Company. Mr. Benson invoiced a total of approximately $38,000 in expert witness
fees for services provided in 2004 (approximately $28,500) and 2005
(approximately $9,500). As disclosed in the Company's Current Report on Form 8-K
filed on December 12, 2005, that lawsuit was settled in December 2005.
Under the terms of the Company's 2004 Non-Employee Directors Stock Option
Plan, as a result of his appointment, Mr. Benson received an option to purchase
10,000 shares of Company Common Stock at an exercise price of $3.22 per share,
the closing price for the Common Stock on the NYSE on December 28, 2005. The
option vests immediately and expires at the end of five years.
Mr. Benson was identified by the Company's Nominating and Corporate
Governance Committee during a candidate search initiated to fill the position,
which was agreed to as part of the settlement of the shareholder derivative
lawsuit. His selection was approved in accordance with the Stipulation of
Settlement. That Stipulation was filed as Exhibit 10.1 to the Company's Current
Report on Form 8-K filed with the SEC on August 5, 2005, and is incorporated
herein by reference.
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ITEM 5.03 AMENDMENT TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
Amendment to Bylaws
On December 27, 2005, the Company's Board of Director's approved amendments
to its Bylaws to amend the special meeting provisions and to affirmatively opt
out of the Control Share Acquisition Statute contained in the Florida Business
Corporation Act (Section 607.0902). The amendment also removed a provision of
the Bylaws relating to special meetings which was inconsistent with the
Company's articles of incorporation, which provide that shareholders owning not
less than 50% of the Company's voting shares may call a special meeting of the
shareholders. The Board then made several non-substantive amendment changes,
including the word "By-Laws" to "Bylaws" and "stockholders" to "shareholders" to
conform to the phraseology used in the Florida Business Corporation Act. A copy
of the amended Bylaws is attached hereto as Exhibit 3.2 and is incorporated by
reference herein.
SECTION 8 OTHER EVENTS.
ITEM 8.01 OTHER EVENTS.
On December 28, 2005, the Company issued press releases announcing
amendments to its Bylaws, and the appointment of the new director. Copies of
these press releases are attached hereto as Exhibits 99.1 and 99.2.
Please see the disclosure set forth under Items 5.02 and 5.03, which is
incorporated by reference into this Item 8.01. On December 27, 2005, in
connection with the amendment of the Bylaws and the appointment of the new
director, the Board of Directors also approved an amendment to the Company's
Corporate Governance Guidelines to provide that the Board of Directors believes
that from six to nine directors is appropriate for the Company's present needs.
The revised guidelines may be accessed at www.cryolife.com/investornew.html.
SECTION 9 FINANCIAL STATEMENTS AND EXHIBITS.
ITEM 9.01(C) EXHIBITS.
(a) Financial Statements.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Shell Company Transactions.
Not applicable.
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(d) Exhibits.
Exhibit
Number Description
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3.2 Amended and Restated Bylaws.
99.1 Press Release dated December 28, 2005, announcing amendments
to the Bylaws.
99.2 Press Released dated December 28, 2005, announcing the
appointment of Mr. James S. Benson as a director.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
CryoLife, Inc. has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CRYOLIFE, INC.
Date: December 28, 2005 By: /s/ D. Ashley Lee
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Name: D. Ashley Lee
Title: Executive Vice President,
Chief Operating Officer and
Chief Financial Officer
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EXHIBIT 3.2
BYLAWS
OF
CRYOLIFE, INC.
ARTICLE I
Offices
The principal Office shall be in the City of Tampa, County of Hillsborough,
and State of Florida.
The corporation may also have offices at such other places both within and
without the State of Florida as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held within the seven (7) month period beginning with the first day of the last
month of the fiscal year of the corporation for the purpose of electing
Directors and for the transaction of such other business as may come before the
meeting, the actual day thereof to be set forth in the Notice of Meeting or in
the Call and Waiver of Notice of Meeting. If the election of Directors shall not
be held at any such annual meeting of the shareholders or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as may be convenient.
Section 2. Special Meetings. Special meetings of the shareholders for any
purposes, unless otherwise prescribed by law or by the Articles of
Incorporation, may be called by the President or Secretary at the request in
writing of the majority of the Board of Directors then in office. Special
meetings of the shareholders may also be called by shareholders in the manner
provided in the Company's Articles of Incorporation. Such request shall state
the purpose or purposes of the meeting. Business transacted at a special meeting
of the shareholders shall be limited to the purposes stated in the notice
thereof.
REVISED AND ADOPTED 6/18/92 AND 3/18/94 AND 4/29/03 AND 12/4/03 AND 11/2/04
AND 12/8/04 AND 11/1/05 AND 12/27/05
Section 3. Place of Meeting. The Board of Directors may designate any
place, whether within or without the State of Florida unless otherwise
prescribed by law or by the Articles of Incorporation, as the place of meeting
for any annual meeting or for any special meeting of the shareholders. In the
absence of any such designation, the meeting shall be held at an office of the
company or at any place near an office of the company. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or without the State of Florida unless otherwise prescribed by law
or by the Articles of Incorporation, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be at any office of the corporation.
Section 4. Notice of Meeting. Written or printed notice stating the place,
day and hour of the meeting, and in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten (10) nor more than sixty (60) days before the date of the meeting, either
personally or by first-class mail, by or at the direction of the President or
the Secretary, or the officer or persons that called the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid.
Section 5. Waiver of Notice of Meeting. When shareholders who hold
four-fifths (4/5) of the voting stock having the right and entitled to vote at
any meeting, shall be present at such meeting, however called or notified, and
shall sign a written consent thereto on the record of the meeting, the acts of
such meeting shall be as valid as if legally called and notified.
Section 6. Voting Lists. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10) days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address and the number and class and series of
shares held by each, which list, for a period of ten (10) days prior to such
meeting, shall be kept on file at the principal office of the corporation and
shall be subject to inspection by any shareholder during the whole time of the
meeting. The original stock transfer book shall be prima facie evidence as to
who are the shareholders entitled to examine such list or transfer books or to
vote at any meeting of the shareholders.
Section 7. Quorum. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders, unless otherwise provided in the Articles of
Incorporation, but in no event shall a quorum consist of less than one-third
(1/3) of the shares entitled to vote at the meeting. If less than a majority of
the outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding quorum.
Section 8. Voting of Shares. Each shareholder entitled to vote shall at
every meeting of the shareholders be entitled to one vote in person for each
share of voting stock held by him. Such right to vote shall be subject to the
right of the Board of Directors to close the transfer books or to fix a record
date for voting shareholders as hereinafter provided, and if such Directors
shall not have exercised such right, no share of stock shall be voted on at any
election for Directors which shall have been transferred on the books of the
corporation within twenty (20) days next preceding such election. No shareholder
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shall enter into a voting trust agreement or any other type agreement vesting
another person with the authority to exercise the voting power of any or all of
his stock.
Section 9. Proxies. At all meetings of shareholders, a shareholder may vote
by proxy, executed in writing by the shareholder or by his duly authorized
attorney-in-fact; but no proxy shall be valid after eleven (11) months from its
date, unless the proxy provides for a longer period. Such proxies shall be filed
with the Secretary of the corporation before or at the time of the meeting.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of Directors of
the corporation shall be not less than one (1) nor more the fifteen (15), the
number of the same shall be fixed by the Board of Directors at any regular or
special meeting. Each Director shall hold office until the next annual meeting
of shareholders and until his successor has been qualified, unless sooner
removed by the shareholders at any general or special meeting. None of the
Directors need be residents of the State of Florida.
Section 3. Annual Meeting. After each annual meeting of shareholders, the
Board of Directors shall hold its annual meeting at the same place as and
immediately following such annual meeting of shareholders for the purpose of the
election of officers and the transaction of such other business as may come
before the meeting; and, if a majority of the Directors be present at such place
and time, no prior notice of such meeting shall be required to be given to the
Directors. The place and time of such meeting may also be fixed by written
consent of the Directors.
Section 4. Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such time and at such place as shall be determined
from time to time by the Board of Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board, if there be one, or the President or any
two (2) Directors. The persons authorized to call special meetings of the Board
of Directors may fix the place for holding any special meetings of the Board of
Directors called by them.
Section 6. Notice. Notice of any special meeting shall be given at least
three (3) days prior thereto by written notice delivered personally or mailed to
each Director at his business address, or by telegram. If mailed, such notice
shall be deemed to be delivered when deposited in United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any Director may waive notice of such meeting, either before,
at or after such meeting. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
Section 7. Quorum. A majority of the Directors shall constitute a quorum,
but a smaller number may adjourn from time to time, without further notice,
until a quorum is secured.
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Section 8. Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 9. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
Directors though less than a quorum of the Board of Directors. A Director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office.
Section 10. Compensation. The compensation of non-employee Directors for
their services as a Director may be fixed by resolution of the Board of
Directors, or by a duly authorized committee of the Board of Directors. Unless
otherwise determined by the Board of Directors or such committee, Directors
shall be paid their expenses of attendance at each meeting of the Board of
Directors or committee thereof. No payment received by a Director for services
as a Director shall preclude a Director from serving the corporation in any
other capacity.
Section 11. Presumption of Assent. A director of the corporation who is
present at a meeting of its Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken, unless
he votes against such action or abstains from voting in respect thereto because
of an asserted conflict of interest.
Section 12. Informal Action by Board. Any action required or permitted to
be taken by any provisions of law, of the Articles of Incorporation or of these
Bylaws at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if, prior to such action, a written consent thereto
is signed by all members of the Board or of such committee, as the case may be,
setting forth the actions of the Board or of the committee.
Section 13. Telephonic Meetings. Members of the Board of Directors or an
executive committee shall be deemed present at a meeting of such board or
committee if a conference telephone, or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time, is used.
Section 14. Removal. Any director may be removed, with or without cause, by
the shareholders at any general or special meeting of the shareholders whenever,
in the judgment of the shareholders, the best interests of the corporation will
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person removed. This Bylaw shall not be subject to change
by the Board of Directors.
ARTICLE IV
Officers
Section 1. Number and Qualification. The officers of the corporation shall
be a Chairman of the Board, a Chief Executive Officer, a President, a Chief
Operating Officer, a Chief Financial Officer and a Secretary, each of whom shall
be elected by the Board of Directors. The Board of Directors may also elect one
or more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, one
or more Assistant Secretaries and Assistant Treasurers and such other officers
as the Board of Directors shall deem appropriate. Two (2) or more offices may be
held by the same person.
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Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the Board of Directors at its first meeting after
each annual meeting of the shareholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as may
be convenient. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified, or until his death, or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer elected or appointed by the Board of
Directors may be removed by the board of Directors whenever in its judgment the
best interests of the corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. Duties of Officers. The Chairman of the Board of the
corporation, or the Presiding Director if there shall not be a Chairman of the
Board, shall preside at all meetings of the Board of Directors and of the
shareholders which he shall attend. The Chairman or the President shall be the
chief executive officer of the corporation, as specified by the Board of
Directors. Subject to the foregoing, the officers of the corporation shall have
such powers and duties as usually pertain to their respective offices and such
additional powers and duties specifically conferred by law, by the Articles of
Incorporation, by these Bylaws, or as may be assigned to them from time to time
by the Board of Directors.
Section 6. Executive Compensation. The salaries and other compensation of
the officers shall be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving such salary or compensation by reason
of the fact that he is also a Director of the corporation.
Section 7. Delegation of Duties. In the absence of or disability of any
officer of the corporation or for any other reason deemed sufficient by the
Board of Directors, the Board may delegate his powers or duties to any other
officer or to any other Director for the time being.
Section 8. Limitation on Executive Compensation. The corporation shall not
award bonuses to officers, directors and/or other employees to avoid or satisfy
margin calls. Severance, separation and/or similar payments made to the Chief
Executive Officer, as well as all other officers at the Vice President level or
higher, shall be limited to the equivalent of such officer's total salary for
the three calendar years immediately preceding the year in which such payment is
determined, including bonuses and guaranteed benefits.
ARTICLE V
Executive and Other Committees
Section 1. Creation of Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate an Executive
Committee and one or more other committees, each to consist of one (1) or more
of the Directors of the corporation.
Section 2. Executive Committees. The Executive committee, if there shall be
one, shall consult with and advise the officers of the corporation in the
management of its business and shall have and may
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exercise, to the extent provided in the resolution of the Board of Directors
creating such Executive Committee, such powers of the Board of Directors as can
be lawfully delegated by the Board.
Section 3. Other Committees. Such other committees shall have such
functions and may exercise the powers of the Board of Directors as can be
lawfully delegated and to the extent provided in the resolution or resolutions
creating such committee or committees.
Section 4. Meetings of Committees. Regular meetings of the Executive
Committee and other committees may be held without notice at such time and at
such place as shall from time to time be determined by the Executive Committee
or such other committees, and special meetings of the Executive Committee or
such other committees may be called by any member thereof upon two (2) days
notice to each of the other members of such committee, or on such shorter notice
as may be agreed to in writing by each of the other members of such committee,
given either personally or in the manner provided in Section 6 of Article III of
these Bylaws (pertaining to notice for Directors' meetings).
Section 5. Vacancies on Committees. Vacancies on the Executive Committee or
on such other committees may be filled by the Board of Directors then in office
at any regular or special meeting.
Section 6. Quorum of Committees. At all meetings of the Executive Committee
or such other committees, a majority of the committee's members then in office
shall constitute a quorum for the transaction of business.
Section 7. Manner of Acting of Committee. The acts of a majority of the
members of the Executive Committee, or such other committees, present at any
meeting at which there is a quorum, shall be the act of such committee.
Section 8. Minutes of Committees. The Executive Committee, if there shall
be one, and such other committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
Section 9. Compensation. Members of the Executive Committee and such other
committees may be paid compensation in accordance with the provisions of Section
10 of Article III (pertaining to compensation of Directors).
ARTICLE VI
Indemnification of Director and Officers
If in the judgment of a majority of the entire Board of Directors
(excluding from such majority any director under consideration for
indemnification), the criteria set forth in Section 607.0l4(l) or (2) of the
Florida General Corporation Act have been met, then the Company shall indemnify
any officer or director, or former officer or director, his personal
representatives, devisees or heirs, in the manner and to the extent contemplated
by Section 607.0l4.
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ARTICLE VII
Certificates of Stock
Section 1. Certificates for Shares. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by a President or a
Vice President and the Secretary or an Assistant Secretary, exhibiting the
holder's name and certifying the number of shares owned by him in the
corporation. The certificates shall be numbered and entered in the books of the
corporation as they are issued.
Section 2. Transfer of Shares. Transfers of shares of the corporation shall
be made upon its books by the holder of the share in person or by his lawfully
constituted representative, upon surrender of the certificate of stock for
cancellation. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes and the corporation shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any other person whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Florida.
Section 3. Facsimile Signature. Where a certificate is manually signed on
behalf of a transfer agent or a registrar other then the corporation itself or
an employee of the corporation, the signature of any such President, Vice
President, Secretary or Assistant Secretary may be a facsimile. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used, shall cease to be such officer or officers of the corporation,
such certificate or certificates may nevertheless be adopted by the corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
Section 4. Lost Certificate. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
their certificate of stock to be lost or destroyed. When authorizing such issue
of new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE VIII
Record Date
The Board of Directors is authorized, from time to time, to fix in advance
a date, not more than sixty (60) nor less than ten (10) days before the date of
any meeting of shareholders, or not more than sixty (60) days prior to the date
for the payment of any dividend or the date for the allotment of rights, or the
date when any change or conversion or exchange of stock shall go into effect, or
a date in connection with the obtaining of the consent of shareholders for any
purpose, as a record date for the determination of the shareholders entitled to
notice of and to vote at any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend or to any such allotment, or to
exercise the rights in respect of any such change, conversion or exchange of
stock; or to give such consent, as the case may be; and, in such case, such
shareholders and only such shareholders as shall be shareholders of record on
the date so fixed shall be entitled to such notice of, and to vote at such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights or to give such
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consent, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation after any such record date fixed as aforesaid.
ARTICLE IX
Dividends
The Board of Directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares of capital stock in the manner upon
the terms and conditions provided by the Articles of Incorporation and Bylaws.
Dividends may be paid in cash, in property, or in shares of stock, subject to
the provisions of the Articles of Incorporation and Bylaws.
ARTICLE X
Fiscal Year
The fiscal year of the corporation shall be the twelve (12) month period
selected by the Board of Directors as the taxable year of the corporation for
federal income tax purposes
ARTICLE XI
Seal
The corporate seal shall bear the name of the corporation, which shall be
between two concentric circles, and in the inside of the inner circle shall be
the calendar year of incorporation, an impression of said seal appearing in the
margin hereof.
ARTICLE XII
Stock in Other Corporations
Shares of stock in other corporations held by this corporation shall be
voted by such officer or officers of this corporation as the Board of Directors
shall from time to time designate for the purpose or by a proxy thereunto duly
authorized by said Board.
ARTICLE XIII
Amendments
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board of Directors; provided that any Bylaw or amendment thereto
as adopted by the Board of Directors may be altered, amended or repealed by vote
of the shareholders entitled to vote thereon, or a new Bylaw in lieu thereof may
be adopted by the shareholders. No Bylaw which has been altered, amended or
adopted by such a vote of the shareholders may be altered, amended or repealed
by a vote of the Directors until two (2) years shall have expired since such
action by vote of such shareholders.
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ARTICLE XIV
Reimbursement of Disallowed Expenses
Any payments made to an officer of the corporation such as salary,
commission, bonus, interest or rent, or for entertainment expenses incurred by
him, which shall be disallowed in whole or in part as a deductible expense by
the Internal Revenue Service, shall be reimbursed by such officer to the
corporation to the full extent of such disallowance. It shall be the duty of the
Directors, as a Board, to enforce payment of each such amount disallowed.
Reimbursement of such disallowed amounts may, subject to the determination of
the directors, be withheld in proportionate amounts from the future compensation
payments of the officer until the amount owed to the corporation has been
recovered.
ARTICLE XV
Advance Notice of Shareholder Nominations and Proposals
Section 1 Nominations and Proposal Requirements. Nominations of persons for
election to the Board of Directors and proposals of business to be transacted by
the shareholders may be made at an annual meeting of shareholders (a) pursuant
to the Corporation's notice with respect to such meeting, (b) by or at the
direction of the Board of Directors, or (c) by any shareholder of record of the
Corporation who (1) was a shareholder of record at the time of the giving of the
notice provided for in the following paragraph, (2) is entitled to vote at the
meeting and (3) has complied with the notice procedures set forth in this
Article.
For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of the foregoing paragraph, (1)
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation, (2) such business must be a proper matter for
shareholder action under the Florida Business Corporation Code, (3) if the
shareholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in this paragraph, such shareholder or beneficial owner
must, (i) in the case of a proposal, have delivered a proxy statement and form
of proxy to holders of at least the percentage of the Corporation's voting
shares required under applicable law to carry any such proposal, or, (ii) in the
case of a nomination or nominations, have delivered a proxy statement and form
of proxy to holders of a percentage of the Corporation's voting shares
reasonably believed by such shareholder or beneficial holder to be sufficient to
elect the nominee or nominees proposed to be nominated by such shareholder, and
must, in either case, have included in the materials accompanying such notice to
the Corporation, the Solicitation Notice and any proxy statement and form of
proxy utilized or to be utilized by such person, and (4) if no Solicitation
Notice relating thereto has been timely provided pursuant to this Article, the
shareholder or beneficial owner proposing such business or nomination must not
have solicited, and must represent that he, she or it will not solicit, a number
of proxies sufficient to have required the delivery of such a Solicitation
Notice under this Article. To be timely, a shareholder's notice and the required
accompanying materials shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than ninety (90) nor more than one
hundred eighty (180) days prior to the first anniversary (the "Anniversary") of
the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting of shareholders; provided, however, that if the
date of the annual meeting is advanced more than thirty (30) days prior to or
delayed by more than thirty (30) days after the anniversary of the preceding
year's annual meeting, notice by the shareholder to be timely must be so
delivered not later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the 10th day following the day on which
10
public announcement of the date of such meeting is first made. Such
shareholder's notice shall set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and shall contain such person's written consent to serve as a director if
elected; (b) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of such business, the reasons for
conducting such business at the meeting and any material interest in such
business of such shareholder and the beneficial owner, if any, on whose behalf
the proposal is made; (c) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nominations or proposal is made
(i) the name and address of such shareholder, and of such beneficial owner, as
they appear on the Corporation's books, (ii) the class and number of shares of
the Corporation that are owned beneficially and of record by such shareholder
and such beneficial owner, and (iii) whether such shareholder or beneficial
owner has delivered or intends to deliver a proxy statement and form of proxy to
holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (the notice
described in this sentence, a "Solicitation Notice").
Section 2. Increase in Number of Directors. Notwithstanding anything in the
second sentence of the second paragraph of Section 1 of this Article XV to the
contrary, in the event that the number of directors to be elected to the Board
is increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board made by the Corporation
at least fifty-five (55) days prior to the Anniversary, a shareholder's notice
required by this Article shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
Section 3. Compliance with Procedures. Only persons nominated in accordance
with the procedures set forth in this Article XV shall be eligible to serve as
directors and only such business shall be conducted at an annual meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Article. The chairman of the meeting shall have
the power and the duty to determine whether a nomination or any business
proposed to be brought before the meeting has been made in accordance with the
procedures set forth in these Bylaws and, if any proposed nomination or business
is not in compliance with these Bylaws, to declare that such defective proposed
business or nomination shall not be presented for shareholder action at the
meeting and shall be disregarded.
Section 4. Nominations at Special Meetings. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the Corporation's
notice of meeting (a) by or at the direction of the Board or (b) by any
shareholder of record of the Corporation who is a shareholder of record at the
time of giving of notice provided for in this paragraph, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in
this Article XV. Nominations by shareholders of persons for election to the
Board may be made at such a special meeting of shareholders if the shareholder's
notice required by the second paragraph of this Article XV shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the later of 90th day prior to such special
meeting or the 10th day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board to be elected at such meeting.
11
Section 5. General. For purposes of this Article, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Article XV, a shareholder
must also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters set forth in this
Article XV. Nothing in this Article XV shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE XVI
Control Share Acquisition
In accordance with Section 607.0902(5) of the Florida Business Corporation
Act, section 607.0902 of the Florida Business Corporation Act shall not apply to
control-share acquisitions of shares of the capital stock of the corporation.
EXHIBIT 99.1
[GRAPHIC OMITTED]
FOR IMMEDIATE RELEASE
MEDIA CONTACTS:
D. Ashley Lee Katie Brazel
Executive Vice President, Chief Financial Officer and Fleishman Hillard
Chief Operating Officer Phone: 404-739-0150
Phone: 770-419-3355
CRYOLIFE AMENDS ITS BYLAWS
ATLANTA, Dec. 28, 2005 - CryoLife, Inc. (NYSE: CRY), a biomaterials and
biosurgical device company, announced today that its Board of Directors has
amended the Company's bylaws in order to affirmatively opt out of the Control
Share Acquisition Statute contained in the Florida Business Corporation Act. The
Board believes that the Company no longer has "substantial assets" in the State
of Florida and therefore the Control Share Acquisition Statute does not apply to
CryoLife. The Board took this action to clarify that this anti-takeover statute
does not apply to the Company.
In addition, the Board removed a provision of the bylaws relating to
special meetings that was inconsistent with the Company's articles of
incorporation. The articles of incorporation provide that shareholders owning
not less than 50 percent of the Company's voting shares may call a special
meeting of the stockholders
Copies of the amendments to the Company's Bylaws will be filed with the
Securities and Exchange Commission as an exhibit to a Current Report on Form
8-K, and will be available at the SEC's website at www.sec.gov or at the
Company's website at www.cryolife.com.
more
Founded in 1984, CryoLife, Inc. is a leader in the processing and
distribution of implantable living human tissues for use in cardiovascular and
vascular surgeries throughout the United States and Canada. The Company's
BioGlue(R) Surgical Adhesive is FDA approved as an adjunct to sutures and
staples for use in adult patients in open surgical repair of large vessels and
is CE marked in the European Community and approved in Canada for use in soft
tissue repair and approved in Australia for use in vascular and pulmonary
sealing and repair. The Company also manufactures the SG Model #100 vascular
graft, which is CE marked for distribution within the European Community.
Statements made in this press release that look forward in time or that
express management's beliefs, expectations or hopes are forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995. These future events may not occur as and when expected, if at all, and,
together with the Company's business, are subject to various risks and
uncertainties. These risks and uncertainties include that the amendments to the
bylaws may not prove valuable in protecting the ability of our shareholders to
realize the full value of their investment while not foreclosing any fair
acquisition proposal for the Company, and may not enhance the Company's
corporate governance and the Board's ability to protect shareholders' interests,
that the Company's aggregate revenues and expenses may not meet its
expectations, the possibility that as a result of its inspections of the
Company's facilities or other events the FDA could impose additional
restrictions on the Company's operations, require a recall, prevent the Company
from processing and distributing tissues or manufacturing and distributing other
products, or take other actions which the Company may not be able to address in
a timely or cost-effective manner if at all, that the Company may not have
sufficient borrowing or other capital availability to fund its business, that
pending or threatened litigation cannot be settled on terms acceptable to the
Company, that the Company may not have sufficient resources to pay punitive
damages or other liabilities arising from litigation which are not covered by
available insurance, the possibility of severe decreases in the Company's
revenues and working capital, that to the extent the Company does not have
sufficient resources to pay the claims against it, it may be forced to cease
operations or seek protection under applicable bankruptcy laws, changes in laws
and regulations applicable to CryoLife and other risk factors detailed in
CryoLife's Securities and Exchange Commission filings, including CryoLife's Form
10-K filing for the year ended December 31, 2004, its registration statement on
Form S-3 (Reg. No. 333-121406), CryoLife's most recent Form 10-Q, and its other
SEC filings. The Company does not undertake to update its forward-looking
statements.
For additional information about the company, visit CryoLife's web site:
http://www.cryolife.com
END
EXHIBIT 99.2
[GRAPHIC OMITTED]
FOR IMMEDIATE RELEASE
MEDIA CONTACTS:
D. Ashley Lee Katie Brazel
Executive Vice President, Chief Financial Officer and Fleishman Hillard
Chief Operating Officer Phone: 404-739-0150
Phone: 770-419-3355
CRYOLIFE NAMES FORMER FDA OFFICIAL JAMES S. BENSON
TO ITS BOARD OF DIRECTORS
ATLANTA, December 28, 2005 -- CryoLife, Inc. (NYSE: CRY), a biomaterials and
biosurgical device company, announced today the appointment of James S. Benson
to its Board of Directors. Mr. Benson retired in 2002 from Advanced Medical
Device Association (AdvaMed, formerly known as the Health Industry Manufacturers
Association), where he was Executive Vice President for Technical and Regulatory
Affairs.
Prior to his tenure at AdvaMed, Mr. Benson served for 20 years with the Food and
Drug Administration (FDA), where he held several senior positions, including
Acting Commissioner, and worked closely with other federal agencies involved in
public health such as the National Institutes of Health (NIH) and the Centers
for Disease Control and Prevention (CDC). He retired from the FDA as director of
the Center for Devices and Radiological Health (CDRH) in 1992.
While at AdvaMed, Mr. Benson was instrumental in working with Congress to create
the Food and Drug Modernization Act of 1997, the Biomaterials Access Act of 1998
and the Medical Device UserFee and Modernization Act of 2002.
Steven G. Anderson, President and Chief Executive Officer, stated, "I'm
delighted to have Jim join the CryoLife Board of Directors. His many years at
the FDA where he was deeply involved in interpreting laws that affect public
health and establishing health policy will be invaluable to the company as we
move forward. The Board joins me in offering our congratulations to Jim. We look
forward to working with him."
more
Founded in 1984, CryoLife, Inc. is a leader in the processing and distribution
of implantable living human tissues for use in cardiovascular and vascular
surgeries throughout the United States and Canada. The Company's BioGlue(R)
Surgical Adhesive is FDA approved as an adjunct to sutures and staples for use
in adult patients in open surgical repair of large vessels and is CE marked in
the European Community and approved in Canada for use in soft tissue repair and
approved in Australia for use in vascular and pulmonary sealing and repair. The
Company also manufactures the SG Model #100 vascular graft, which is CE marked
for distribution within the European Community.
Statements made in this press release that look forward in time or that
express management's beliefs, expectations or hopes are forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995. These future events may not occur as and when expected, if at all, and,
together with the Company's business, are subject to various risks and
uncertainties. These risks and uncertainties include that Mr. Benson's
experience will not prove invaluable to the Company, that the Company's
aggregate revenues and expenses may not meet its expectations, the possibility
that as a result of its inspections of the Company's facilities or other events
the FDA could impose additional restrictions on the Company's operations,
require a recall, prevent the Company from processing and distributing tissues
or manufacturing and distributing other products, or take other actions which
the Company may not be able to address in a timely or cost-effective manner if
at all, that the Company may not have sufficient borrowing or other capital
availability to fund its business, that pending or threatened litigation cannot
be settled on terms acceptable to the Company, that the Company may not have
sufficient resources to pay punitive damages or other liabilities arising from
litigation which are not covered by available insurance, the possibility of
severe decreases in the Company's revenues and working capital, that to the
extent the Company does not have sufficient resources to pay the claims against
it, it may be forced to cease operations or seek protection under applicable
bankruptcy laws, changes in laws and regulations applicable to CryoLife and
other risk factors detailed CryoLife's Securities and Exchange Commission
filings, including CryoLife's Form 10-K filing for the year ended December 31,
2004, its registration statement on Form S-3 (Reg. No. 333-121406), CryoLife's
most recent Form 10-Q, and its other SEC filings. The Company does not undertake
to update its forward-looking statements.
For additional information about the company, visit CryoLife's web site:
http://www.cryolife.com
END