As filed with the Securities and Exchange Commission on January 4, 2005
Registration No. 333-121406
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
FORM S-3/A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CRYOLIFE, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-2417093
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
CRYOLIFE, INC.
1655 ROBERTS BOULEVARD, NW
KENNESAW, GEORGIA 30144
(770) 419-3355
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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COPIES TO:
STEVEN G. ANDERSON, PRESIDENT, CHIEF EXECUTIVE OFFICER T. CLARK FITZGERALD III, ESQ.
AND CHAIRMAN OF THE BOARD OF DIRECTORS ARNALL GOLDEN GREGORY LLP
CRYOLIFE, INC. 171 17TH STREET
1655 ROBERTS BOULEVARD, NW SUITE 2100
KENNESAW, GEORGIA 30144 ATLANTA, GEORGIA 30363
(770) 419-3355 (404) 873-8500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------------------
Approximate Date of Commencement of Proposed Sale to the Public: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All expenses, other than fees and expenses of legal or other advisors to
the selling shareholders, will be paid by CryoLife. Such expenses are as
follows:*
SEC registration fee................................ $ 5,885
NYSE listing fee.................................... 25,000
Printing expenses................................... 10,000
Accounting fees and expenses........................ 25,000
Legal fees and expenses............................. 50,000
Miscellaneous....................................... 15,115
-----------------
Total...................................... $ 131,000
=================
_____________________________
*The amounts set forth, except for the filing fees for the SEC, are estimated.
ITEM 15. 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, the Registrant's Bylaws and the indemnification agreements
entered into with the Registrant's directors and Chief Financial Officer.
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
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 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.
The Registrant has entered into indemnification agreements with each of its
directors and its Chief Financial Officer ("Indemnitees"), on the dates
indicated on Exhibit 99.1. Pursuant to such agreements, the Registrant shall
indemnify each Indemnitee whenever he or she is or was a party or is threatened
to be made a party to any proceeding, including without limitation any such
proceeding brought by or in the right of the Registrant, because he or she is or
was a director or officers of the Registrant
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or is or was serving at the request of the Registrant as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
or because of anything done or not done by the Indemnitee in such capacity,
against expenses and liabilities (including the costs of any investigation,
defense, settlement or appeal) actually and reasonably incurred by the
Indemnitee or on his or her behalf in connection with such proceeding, if he or
she 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 Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that an Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the Registrant, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his
or her conduct was unlawful. Unless a determination has been made that the
Indemnitee is not entitled to indemnification pursuant to the agreement, all
reasonable expenses incurred by or on behalf of such Indemnitee shall be
advanced from time to time by the Registrant to the Indemnitee within thirty
(30) days after the Registrant's receipt of a written request for an advance of
expenses by such Indemnitee, whether prior to or after final disposition of a
proceeding. If required by law, Indemnitee shall agree, at the time of such
advance, to repay the amounts advanced if it is ultimately determined that
Indemnitee is not entitled to be indemnified under the terms of the agreement.
Any advances made shall be unsecured and no interest shall be charged thereon.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "1933 Act"), may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions of the Georgia
Business Corporation Code and the Registrant's articles of incorporation and
bylaws, the Registrant has been informed that indemnification is considered by
the Commission to be against public policy and therefore unenforceable.
ITEM 16. EXHIBITS
Exhibit No. Exhibit
- ---------- -------
3.1 Restated Certificate of Incorporation of the Company, as amended.
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.)
3.2 Bylaws of the Company, as amended. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Report on Form 8-K filed November
8, 2004.)
3.3 Articles of Amendment to the Articles of Incorporation of
CryoLife. (Incorporated by reference to Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000.)
4.1 Form of Certificate for the Company's Common Stock. (Incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (Commission File No. 33-56388). )
4.2 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.)
4.3 Rights Agreement between the Company and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent, dated as of
November 27, 1995. (Incorporated by reference to Exhibit 10.36 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000.)
4.4 First Amendment to Rights Agreement, effective June 1, 1997,
executed by the Company and American Stock Transfer & Trust
Company, as successor Rights Agent. (Incorporated by reference to
the Registrant's Registration Statement on Form S-3 (Commission
File No. 333-112673.))
4.5+ Form of Depositary Agreement.
4.6+ Form of Depositary Receipt.
5.1* Opinion of Arnall Golden Gregory LLP regarding legality of the
common stock and preferred stock.
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5.2* Opinion of Arnall Golden Gregory LLP regarding legality of the
depositary shares.
12.1* Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Arnall Golden Gregory LLP (included as part of Exhibit
5 hereto).
23.2* Consent of Deloitte & Touche LLP.
23.3* Notice regarding consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in the signature pages of the initial
filing of this registration statement).
99.1** Form of Indemnification Agreement for Directors and Chief
Financial Officer of the Registrant.
_____________________________
* Previously filed.
**Filed herewith.
+ To be filed by amendment or as an exhibit to a current report on Form 8-K of
the Registrant.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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 paragraphs (1)(i) and (1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by registrants pursuant to
section 13 or section 15(d) of the Exchange Act 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 from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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(4) That, for purposes of determining 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 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-3 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 January 4, 2005.
CRYOLIFE, INC.
By: /s/ Steven G. Anderson
------------------------------------
Steven G. Anderson
President, Chief Executive Officer and
Chairman of the Board of Directors
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 President, Chief Executive Officer and January 4, 2005
- ----------------------------------------- Chairman of the Board of Directors
Steven G. Anderson (Principal Executive Officer)
/s/ D. Ashley Lee Executive Vice President, Chief January 4, 2005
- ----------------------------------------- Operating Officer and Chief Financial
D. Ashley Lee Officer (Principal Financial and
Accounting Officer)
* Director January 4, 2005
- -----------------------------------------
Thomas F. Ackerman
* Director January 4, 2005
- -----------------------------------------
Dan Bevevino
* Director January 4, 2005
- -----------------------------------------
John M. Cook
* Director January 4, 2005
- -----------------------------------------
Ronald Charles Elkins, M.D.
* Director January 4, 2005
- -----------------------------------------
Virginia C. Lacy
* Director January 4, 2005
- -----------------------------------------
Ronald D. McCall
* Director January 4, 2005
- -----------------------------------------
Bruce J. Van Dyne, M.D.
*By: /s/ D. Ashley Lee
-------------------------------------
D. Ashley Lee, Attorney in Fact
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EXHIBIT INDEX
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
Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.)
3.2 Bylaws of the Company, as amended. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Report on Form 8-K filed November
8, 2004.)
3.3 Articles of Amendment to the Articles of Incorporation of
CryoLife. (Incorporated by reference to Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000.)
4.1 Form of Certificate for the Company's Common Stock. (Incorporated
by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (Commission File No. 33-56388). )
4.2 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.)
4.3 Rights Agreement between the Company and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent, dated as of
November 27, 1995. (Incorporated by reference to Exhibit 10.36 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000.)
4.4 First Amendment to Rights Agreement, effective June 1, 1997,
executed by the Company and American Stock Transfer & Trust
Company, as successor Rights Agent. (Incorporated by reference to
the Registrant's Registration Statement on Form S-3 (Commission
File No. 333-112673.))
4.5+ Form of Depositary Agreement.
4.6+ Form of Depositary Receipt.
5.1* Opinion of Arnall Golden Gregory LLP regarding legality of the
common stock and preferred stock.
5.2* Opinion of Arnall Golden Gregory LLP regarding legality of the
depositary shares.
12.1* Computation of Ratio of Earnings to Fixed Charges
23.1* Consent of Arnall Golden Gregory LLP (included as part of Exhibit
5 hereto).
23.2* Consent of Deloitte & Touche LLP.
23.3* Notice regarding consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in the signature pages of the initial
filing of this registration statement).
99.1** Form of Indemnification Agreement for Directors and Chief
Financial Officer of the Registrant.
_____________________________
* Previously filed.
**Filed herewith.
+ To be filed by amendment or as an exhibit to a current report on Form 8-K of
the Registrant.
EXHIBIT 99.1
The attached form of Indemnification Agreement was signed for each of the
following Directors and the Chief Financial Officer of the Registrant, on the
date indicated by each individual's name.
Steven G. Anderson October 30, 2003
Thomas F. Ackerman February 23, 2004
Daniel J. Bevevino February 23, 2004
John M. Cook October 30, 2003 (signed by the
Registrant in January, 2005)
Ronald C. Elkins, M.D. October 30, 2003
Virginia C. Lacy October 30, 2003
D. Ashley Lee April 19, 2004
Ronald D. McCall, Esq. October 30, 2003
Bruce J. Van Dyne, M.D. October 30, 2003
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as of _______ __,
2003, between CRYOLIFE, INC., a Florida corporation (the "Corporation"), and
_________________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, at the request of the Corporation, Indemnitee is a member of the
board of directors of the Corporation (the "Board of Directors") and/or is an
officer of the Corporation, and in such capacity is performing a valuable
service for the Corporation;
WHEREAS, in addition to the indemnification to which Indemnitee is entitled
pursuant to the Articles of Incorporation and Bylaws of the Corporation and as
additional consideration for Indemnitee's service, the Corporation has obtained
or may in the future obtain, at its expense, directors' and officers' liability
insurance protecting Indemnitee in connection with such service;
WHEREAS, Indemnitee and the Corporation acknowledge that the indemnities
available under the Corporation's Bylaws and Articles of Incorporation, as
amended, and such insurance may not, in all situations, be adequate to protect
Indemnitee against the risks associated with service to the Corporation; and
WHEREAS, Indemnitee is willing to serve, continue to serve, and take on
additional service for or on behalf of the Corporation on the condition that
Indemnitee is indemnified as herein provided.
NOW, THEREFORE, in consideration of the premises and the covenants in this
Agreement, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a director or
officer of the Corporation so long as he or she is duly appointed or elected and
qualified in accordance with the applicable provisions of the Articles of
Incorporation and Bylaws of the Corporation or any subsidiary of the Corporation
and until such time as he or she resigns or fails to stand for election or is
removed from his or her position. Indemnitee may at any time and for any reason
resign or be removed from such position (subject to any other contractual
obligation or other obligation imposed by operation of law), in which event the
Corporation shall have no obligation under this Agreement to continue Indemnitee
in any such position.
2. INDEMNIFICATION.
(a) The Corporation shall indemnify Indemnitee to the fullest extent
permitted by the Florida Business Corporation Act and any other applicable law.
This obligation includes the obligation to indemnify Indemnitee whenever
Indemnitee is or was a party or is threatened to be made a party to any
Proceeding (capitalized terms not otherwise defined are defined in Section 14),
and also includes without limitation any such Proceeding brought by or in the
right of the Corporation, because (or arising in part because) he or she is or
was (or is alleged to be or have been) a director, officer, employee, partner,
fiduciary or agent of the Corporation or is or was (or is alleged to be or have
been) serving at the request of the Corporation as a director, officer,
employee, partner, fiduciary or agent of another corporation, partnership, joint
venture, limited liability company, limited liability partnership, limited
partnership, employee benefit plan, trust or other enterprise, or because of
anything done or not done by Indemnitee in such capacity, against Expenses and
Liabilities as defined below (including the costs of any investigation, defense,
settlement or appeal), actually and reasonably incurred by Indemnitee or on his
or her behalf in connection with such Proceeding, if he or she acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) To the extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding, he shall be indemnified against Expenses
and Liabilities actually and reasonably incurred by him in connection therewith.
(c) If the indemnification provided for in Section 2(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to
Indemnitee in respect of any losses, claims, damages, expenses or liabilities
referred to therein due to public policy related to applicable federal or state
securities laws, then the Corporation, in lieu of indemnifying Indemnitee
thereunder, shall contribute to the amount paid or payable by Indemnitee as a
result of such losses, claims, damages, expenses or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Corporation and Indemnitee, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Corporation and Indemnitee in connection with the
action or inaction which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations. In
connection with the registration of the Corporation's securities, the relative
benefits received by the Corporation and Indemnitee shall be deemed to be in the
same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Corporation and Indemnitee, in each case as
set forth in the table on the cover page of the applicable prospectus, bear to
the aggregate public offering price of the securities so offered. The relative
fault of the Corporation and Indemnitee shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Corporation or Indemnitee and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Corporation and Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 2(c) were determined by pro
rata or per capita allocation or by any other method of allocation which does
2
not take account of the equitable considerations referred to in the immediately
preceding paragraph. In connection with the registration of the Corporation's
securities, in no event shall Indemnitee be required to contribute any amount
under this Section 2(c) in excess of the lesser of (i) that proportion of the
total of such losses, claims, damages or liabilities indemnified against equal
to the proportion of the total securities sold under such registration statement
which was sold by Indemnitee or (ii) the proceeds received by Indemnitee from
sale of securities under such registration statement. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
3. MANDATORY ADVANCEMENT OF EXPENSES. Unless a determination has been made
pursuant to Section 6 (and remains in effect) that Indemnitee is not entitled to
indemnification pursuant to Section 2, all reasonable Expenses incurred by or on
behalf of Indemnitee shall be advanced from time to time by the Corporation to
Indemnitee within thirty (30) days after the Corporation's receipt of a written
request for an advance of Expenses by Indemnitee, whether prior to or after
final disposition of a Proceeding. The written request for an advancement of any
and all Expenses under this Section shall contain reasonable detail of the
Expenses incurred by Indemnitee. If required by law, Indemnitee shall agree, at
the time of such advance, to repay the amounts advanced if it is ultimately
determined that Indemnitee is not entitled to be indemnified pursuant to the
terms of this Agreement. Any advances made shall be unsecured and no interest
shall be charged thereon.
4. LIMITATIONS. The foregoing indemnity and advancement of Expenses shall
apply only to the extent that Indemnitee has not been indemnified and reimbursed
pursuant to such insurance as the Corporation may maintain for Indemnitee's
benefit or pursuant to the Articles of Incorporation or Bylaws of the
Corporation or otherwise, provided, however, that notwithstanding the
availability of such other indemnification and reimbursement pursuant to such
Corporation-maintained policies, Indemnitee may, with the Corporation's consent,
claim indemnification and advancement of Expenses pursuant to this Agreement by
assigning Indemnitee's claims under such insurance to the Corporation to the
extent Indemnitee is paid by the Corporation.
Furthermore, any other provision herein to the contrary notwithstanding,
the Company shall not be obligated pursuant to the terms of this Agreement to
(a) indemnify or advance Expenses to Indemnitee with respect to Claims as
defined below, initiated or brought voluntarily by such Indemnitee and not by
way of defense, except (i) with respect to actions or proceedings to establish
or enforce a right to indemnity under this Agreement or any other agreement or
insurance policy or under the Articles of Incorporation or Bylaws now or
hereafter in effect relating to a Proceeding, (ii) in specific cases if the
Board of Directors has approved the initiation or bringing of such Proceeding,
(iii) as otherwise required under Section 607.0850 of the Florida Business
Corporation Act, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be, (b) indemnify Indemnitee for expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended or
3
any similar successor statute, or (c) indemnify Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such proceeding was not made in good faith or was
frivolous.
5. INSURANCE. The Corporation may, but is not obligated to, maintain
insurance to protect itself and/or Indemnitee against Expenses and Liabilities
in connection with Proceedings to the fullest extent permitted by applicable
laws, its Articles of Incorporation or the Bylaws of the Corporation. The
Corporation may, but is not obligated to, create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such amounts as may be necessary to effect
indemnification or advancement of Expenses as provided in this Agreement. If, at
the time of the receipt by the Corporation of a notice of a claim by Indemnitee
pursuant to Section 6 hereof (or upon the Corporation otherwise becoming aware
of such a claim), the Corporation has liability insurance in effect which may
cover such claim, then the Corporation shall give timely notice of the
commencement of such claim to the insurers in accordance with the procedures set
forth in the respective policies. The Corporation shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, all amounts payable as a result of such action, suit, proceeding,
inquiry or investigation in accordance with the terms of such policies.
6. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Indemnitee believes that Indemnitee is entitled to
indemnification or advancement of expenses pursuant to this Agreement,
Indemnitee shall submit a written request for indemnification or such advances
to the Corporation. Any request shall include sufficient documentation or
information reasonably available to Indemnitee to support his claim. Indemnitee
shall submit such claim within a reasonable time not to exceed three months (or
after request by the Corporation in order to assist the Corporation in filing a
claim) after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, final
termination or other disposition or partial disposition of any Proceeding,
whichever is the latest event for which Indemnitee requests indemnification. If
a determination is required by the Corporation that Indemnitee is entitled to
Indemnification, and the Corporation fails to respond within sixty (60) days of
such request, the Corporation shall be deemed to have approved the request. Any
indemnification or advance of expenses which is due and payable to Indemnitee
shall be made promptly and in any event within thirty (30) days after the
determination that Indemnitee is entitled to such amounts.
(b) If a determination regarding indemnification is required, the
Indemnitee shall be entitled to select the forum in which Indemnitee's request
for indemnification will be heard, which selection shall be included in the
written request for indemnification required in Section 6(a). The forum shall be
any one of the following:
(i) The shareholders of the Corporation;
(ii) A majority vote of the Board of Directors consisting of Disinterested
Directors (even though less than a quorum); or
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(iii) A majority vote of a Committee of Disinterested Directors designated
by a majority vote of Disinterested Directors (even though less than a quorum);
or
(iv) If there are no Disinterested Directors, or if the Disinterested
Directors so direct, by independent legal counsel in a written opinion.
If Indemnitee fails to make such designation, his claim shall be determined
by A COURT OF COMPETENT JURISDICTION APPLYING THE LAWS OF THE STATE OF FLORIDA.
In all instances, the reviewing party shall be bound by a rebuttable presumption
created by the filing of the written request by Indemnitee that (i) Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation, and that Indemnitee had no
reason to believe his conduct was unlawful, and (ii) Indemnitee is entitled to
indemnification.
7. FEES AND EXPENSES OF COUNSEL. The Corporation agrees to pay the
reasonable fees and expenses of independent legal counsel (including appropriate
retainers) for Indemnitee should such counsel be retained to make a
determination of Indemnitee's entitlement to indemnification pursuant to Section
6 of this Agreement.
8. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination pursuant to Section 6 hereof is
made that Indemnitee is not entitled to indemnification, (ii) advances of
Expenses are not made pursuant to this Agreement for any reason, (iii) payment
has not been timely made following a determination of entitlement to
indemnification pursuant to this Agreement, or (iv) Indemnitee otherwise seeks
enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication of his rights in an appropriate court. The Corporation shall not
oppose Indemnitee's right to seek any such adjudication.
(b) In the event that a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 6
hereof, the decision in the judicial proceeding provided in paragraph (a) of
this Section 8 shall be made de novo and Indemnitee shall not be prejudiced by
reason of a determination that he is not entitled to indemnification.
(c) If a determination that Indemnitee is entitled to indemnification has
been made pursuant to Section 6 hereof or otherwise pursuant to the terms of
this Agreement, the Corporation shall be bound by such determination in the
absence of (i) misrepresentation of a material fact by Indemnitee or (ii) a
specific finding (which has become final) by an appropriate court that all or
any part of such indemnification is expressly prohibited by law.
(d) In any court proceeding pursuant to this Section 8, the Corporation
shall be precluded from asserting that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Corporation shall
stipulate in any such court that the Corporation is bound by all the provisions
of this Agreement (including the rebuttable presumptions specified in Section
6(b)) and is precluded from making any assertion to the contrary.
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9. MODIFICATION, WAIVER, TERMINATION AND CANCELLATION. No supplement,
modification, termination, cancellation or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall any
such waiver constitute a continuing waiver.
10. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIM. Indemnitee shall promptly
notify the Corporation in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
matter, whether civil, criminal, administrative or investigative, but the
omission to so notify the Corporation will not relieve it from any liability
which it may have to Indemnitee if such omission does not prejudice the
Corporation's rights. If such omission does prejudice the Corporation's rights,
the Corporation will be relieved from liability only to the extent of such
prejudice. With respect to any Proceeding as to which Indemnitee notifies the
Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) The Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee; provided, however, that the Corporation shall not be
entitled to assume the defense of any Proceeding if Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Corporation and Indemnitee with respect to such Proceeding. After notice from
the Corporation to Indemnitee of its election to assume the defense thereof, the
Corporation will not be liable to Indemnitee under this Agreement for any
Expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless:
(i) The employment of counsel by Indemnitee has been authorized in writing
by the Corporation;
(ii) Indemnitee shall have reasonably concluded that counsel engaged by the
Corporation may not adequately represent Indemnitee; or
(iii) The Corporation shall not in fact have employed counsel to assume the
defense in such Proceeding or shall not in fact have assumed such defense and be
acting in connection therewith with reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; provided, however, that Indemnitee will not unreasonably
withhold his consent to any proposed settlement.
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11. DEPOSIT OF FUNDS IN TRUST. If the Corporation voluntarily decides to
dissolve or to file a petition for relief under any applicable bankruptcy,
moratorium or similar laws, then not later than 10 days prior to such
dissolution or filing, the Corporation shall deposit in trust for the sole and
exclusive benefit of Indemnitee a cash amount equal to all amounts previously
authorized to be paid to Indemnitee hereunder, such amounts to be used to
discharge the Corporation's obligations to Indemnitee hereunder. Any amounts in
such trust not required for such purpose shall be returned to the Corporation.
This Section 11 shall not apply to the dissolution of the Corporation in
connection with a transaction as to which Section 14(b)(iii) applies.
12. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be sent by Federal Express or other
nationally recognized overnight or same day courier service providing a return
receipt (and shall be effective when received, when refused or when the same
cannot be delivered, as evidenced on the return receipt) to the following
addresses:
To Corporation: CryoLife, Inc
1655 Roberts Blvd., NW
Kennesaw, GA 30144
Attn: President
With copy to: Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3050
Attn: Clinton D. Richardson, Esq.
To Indemnitee: __________________________________
__________________________________
__________________________________
13. NONEXCLUSIVITY. The rights of Indemnitee hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled under the Florida Business Corporation Act, the Corporation's Articles
of Incorporation or Bylaws, or any agreements, insurance policies, vote of
shareholders, resolution of the Board of Directors or Disinterested Directors,
or otherwise. The provisions of this Agreement are hereby deemed to be a
contract right between the Corporation and the Indemnitee and any repeal of the
relevant provisions of the Florida Business Corporation Act, or other applicable
law, shall not affect this Agreement or its enforceability.
14. CERTAIN DEFINITIONS.
(a) References to the "Corporation" shall include, in addition to the
resulting corporation, any constituent corporation or other enterprise
(including any constituent of a constituent or other enterprise) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees, partners, fiduciaries or agents, so that any person who is or was a
director, officer, employee, partner, fiduciary or agent of such constituent
corporation or other enterprise, or is or was serving at the request of such
constituent corporation or other enterprise as a director, officer, employee,
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partner, fiduciary or agent of another corporation, partnership, joint venture,
limited liability company, limited liability partnership, limited partnership,
employee benefit plan, trust or other enterprise, shall stand in the same
position under this Agreement with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation or
other enterprise if its separate existence had continued.
(b) A "Change in Control" shall be deemed to have occurred if
(i) any "Person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Corporation
or a corporation owned directly or indirectly by the shareholders of the
Corporation in substantially the same proportions as their ownership of stock of
the Corporation,
(A) who is or becomes the beneficial owner, directly or indirectly, of
securities of the Corporation representing 20% or more of the combined voting
power of the Corporation's then outstanding voting securities, increases his
beneficial ownership of such securities by 5% or more over the percentage so
owned by such person, or
(B) becomes the "beneficial owner" (as defined in rule 13d-3 under said
Act), directly or indirectly, of securities of the Corporation representing more
than 30% of the total voting power represented by the Corporation's then
outstanding voting securities,
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Corporation
and any new director whose election by the Board of Directors or nomination for
election by the Corporation's shareholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof,
or
(iii) the shareholders of the Corporation approve a merger or consolidation
of the Corporation with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Corporation
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the total voting power represented by the
voting securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation or the shareholders of the
Corporation approve a plan of complete liquidation of the Corporation or an
agreement for the sale or disposition by the Corporation of (in one transaction
or a series of transactions) all or substantially all of the Corporation's
assets.
(c) "Disinterested Director" shall mean a director of the Corporation who
is not and was not a party to the Proceeding in respect of which indemnification
is being sought by Indemnitee. If there has been a Change in Control since the
date hereof, to qualify as a Disinterested Director, such director must also
have been a director of the Corporation prior to such Change in Control.
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(d) "Expenses" shall mean all direct and indirect costs (including, without
limitation, attorneys' fees, retainers, court costs, transcripts, costs of
investigation, costs of defense, costs of defending witnesses or preparing to be
a witness, costs of negotiating settlements, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, costs of attachment, appeal or similar
bonds, and all other disbursements or out-of-pocket expenses) actually and
reasonably incurred in connection with a Proceeding or establishing or enforcing
a right to indemnification or advances under this Agreement, applicable law or
otherwise; provided, however, that "Expenses" shall not include any Liabilities.
(e) "Indemnification Period" shall mean the period of time during which
Indemnitee shall continue to serve as a director or as an officer of the
Corporation, and thereafter so long as Indemnitee shall be subject to any
possible Proceeding arising out of acts or omissions of Indemnitee as a
director, officer, employee, fiduciary or agent of the Corporation or otherwise
at the request of or on behalf of the Corporation.
(f) "Liabilities" shall mean liabilities of any type whatsoever including,
but not limited to, any damages, judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement) of any
Proceeding, as well as any federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement.
(g) "Proceeding" shall mean any threatened, pending or completed action,
claim, suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, including any appeal therefrom.
(h) For purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee,
partner, fiduciary or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Agreement.
15. BINDING EFFECT, DURATION AND SCOPE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including the executors,
administrators and heirs of Indemnitee's estate, and any direct or indirect
successor, including spouses, by purchase, merger, consolidation or otherwise,
to all or substantially all of the business or assets of the Corporation), heirs
and personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as a director, officer, employee, fiduciary or agent.
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16. SEVERABILITY. If any provision or provisions of this Agreement (or any
portion thereof) shall be held to be invalid, illegal or unenforceable for any
reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired thereby; and
(b) to the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any provision
held invalid, illegal or unenforceable.
17. GOVERNING LAW, INTERPRETATION OF AGREEMENT, AND JURISDICTION. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Florida, as applied to contracts between Florida residents
entered into and to be performed entirely within Florida. If the laws of the
State of Florida are hereafter amended to permit the Corporation to provide
broader indemnification rights than said laws permitted the Corporation to
provide prior to such amendment, the rights of indemnification and advancement
of expenses conferred by this Agreement shall automatically be broadened to the
fullest extent permitted by the laws of the State of Florida, as so amended. The
Corporation and Indemnitee each hereby irrevocably consent to the jurisdiction
of the courts of the State of GEORGIA for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be commenced, prosecuted
and continued only in the federal and state courts of the State of GEORGIA in
and for Fulton County, which shall be the exclusive and only proper forum for
adjudicating such a claim.
18. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties hereto, and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 13 hereof.
19. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a portion of
the Expenses, judgments, fines or penalties actually and reasonably incurred by
him in the investigation, defense, appeal or settlement of any Proceeding but
not, however, for the total amount thereof, the Corporation shall nevertheless
indemnify Indemnitee for the portion of such Expenses, judgments, fines or
penalties to which Indemnitee is entitled.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
[signatures on following page(s)]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
CORPORATION:
CRYOLIFE, INC.
By:
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Name:
----------------------------------------
Title:
----------------------------------------
INDEMNITEE:
Name:
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