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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549


FORM 8-A/A
Amendment No. 1

FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934


CRYOLIFE, INC.
(Exact Name of Registrant as Specified in its Charter)

Florida
(State of Incorporation or Organization)
  59-2417093
(I.R.S. Employer Identification No.)

Steven G. Anderson, President, Chief Executive
1655 Roberts Boulevard, NW
Kennesaw, Georgia
(Address of Principal Executive Offices)

 

30144
(Zip Code)

If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), please check the following box. ý

 

If this Form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), please check the following box. o

Securities Act registration statement file number to which this form relates: 333-121406 (if applicable)

Securities to be registered pursuant to Section 12(b) of the Act:

Title of Each Class
to be so Registered

  Name of Each Exchange on Which
Each Class is to be Registered

6% Convertible Preferred Stock,
$0.01 par value per share
  New York Stock Exchange

Securities to be registered pursuant to Section 12(g) of the Act:

None
(Title of Class)





ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED

        A description of the Registrant's preferred stock is set forth under the caption "Description of Preferred Stock" contained in the prospectus supplement to the prospectus included in the Company's Registration Statement on Form S-3 (File No. 333-121406) as originally filed with the Securities and Exchange Commission on December 17, 2004 or as subsequently amended (the "Registration Statement"), is hereby incorporated by reference in response to this item. The prospectus supplement will be filed by the Registrant pursuant to Rule 424(b).


ITEM 2. EXHIBITS

        The following exhibits are filed or incorporated by reference as a part of this Registration Statement:

Exhibit
No.

  Description
3.1   Restated Articles of Incorporation of the Registrant, as amended. (Incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended March 31, 2003.)

3.2

 

ByLaws of the Registrant, as amended. (Incorporated by reference to Exhibit 3.2 to Current Report on Form 8-K filed with the Securities and Exchange Commission on December 8, 2004.)

3.3

 

Articles of Amendment to the Articles of Incorporation of the Registrant. (Incorporated by reference to Exhibit 3.3 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000.)

3.4

 

Preferred Stock Articles of Amendment to the Articles of Incorporation of the Registrant.

4.1

 

Form of Specimen Convertible Preferred Stock Certificate.

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SIGNATURE

        Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

    CRYOLIFE, INC.

 

 

By:

 

/s/  
STEVEN G. ANDERSON      
Steven G. Anderson
Chairman and Chief Executive Officer

Dated: March 14, 2005

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Exhibit 3.4

ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
CRYOLIFE, INC.

TO:
Department of State
Tallahassee, Florida 32304

        Pursuant to the provisions of Section 607.1006 of the Florida Statutes, the undersigned corporation adopts the following Articles of Amendment to its Articles of Incorporation:

        1.     The name of the corporation is CRYOLIFE, INC.

        2.     The following amendments of the Articles of Incorporation were adopted by the directors of the Corporation or a committee thereof on the 15th day of March, 2005, in the manner prescribed by the Florida General Corporation Act, Sections 607.0602 and 607.1006:

        Article V of the Articles of Incorporation is amended by appending thereto a new subsection (d) as follows:

        (d)   There shall be a series of Convertible Preferred Stock, par value $.01 per share, of the Corporation with the following designated number of shares, relative rights, preferences, and limitations thereof:

(1)    Designation and Amount.    The shares of such series shall be designated as "6% Convertible Preferred Stock" (the "Convertible Preferred Stock"), and the authorized number of shares constituting such series shall be 460,000.

(2)    Definitions.    For purposes of the Convertible Preferred Stock, in addition to those terms otherwise defined herein, the following terms shall have the meanings indicated:

        "Affiliate" of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.

        "Applicable Price" shall have the meaning specified in Section 7(l).

        "Automatic Conversion" shall have the meaning specified in Section 7(j).

        "Automatic Conversion Date" shall have the meaning specified in Section 7(j).

        "Automatic Conversion Notice" shall have the meaning specified in Section 7(j).

        "Board of Directors" shall mean the Board of Directors of the Corporation or a committee of such Board duly authorized to act for it hereunder.

        "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Corporation to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Transfer Agent.

        "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York, New York are authorized or obligated by law or executive order to close or be closed.

        "Commission" shall mean the Securities and Exchange Commission.

        "Common Stock" shall mean the class of capital stock of the Corporation designated as Common Stock, par value $0.01 per share, at the date hereof. Subject to the provisions of Section 7(e), shares



issuable on conversion of the Convertible Preferred Stock shall include only shares of such class or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation and which are not subject to redemption by the Corporation; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

        "Common Stock Fundamental Change" shall have the meaning specified in Section 7(l).

        "Conversion Price" shall have the meaning specified in Section 7(a).

        "Corporation" shall mean CryoLife, Inc., a Florida corporation, and, shall include its successors and assigns.

        "Custodian" shall mean American Stock Transfer & Trust Company as custodian with respect to the Global Certificate, or any successor entity thereto.

        "Depositary" means, with respect to the Convertible Preferred Stock issuable or issued in the form of a Global Certificate, the person specified in Section 13 as the Depositary with respect to the Convertible Preferred Stock, until a successor shall have been appointed and become such pursuant to the applicable provisions of these Articles, and thereafter, "Depositary" shall mean or include such successor. The foregoing sentence shall likewise apply to any subsequent successor or successors.

        "Dividend Payment Date" shall have the meaning specified in Section 3(a).

        "Dividend Payment Record Date" shall have the meaning specified in Section 3(a).

        "Dividend Periods" shall mean quarterly dividend periods commencing on the first day of January, April, July and October of each year and ending on and including the day preceding the first day of the next succeeding Dividend Period (other than the initial Dividend Period which shall commence on the Issue Date and end on and include June 30, 2005).

        "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

        "Fundamental Change" shall have the meaning specified in Section 7(l).

        "Global Certificate" shall have the meaning specified in Section 13(a).

        "Holder," "holder of shares of Convertible Preferred Stock," or "holder of the Convertible Preferred Stock," as applied to any share of Convertible Preferred Stock, or other similar terms (but excluding the term "beneficial holder"), shall mean any person in whose name at the time a particular share of Convertible Preferred Stock is registered on the Corporation's stock records, which shall include the books of the Transfer Agent in respect of the Corporation and any stock transfer books of the Corporation.

        "Issue Date" shall mean the first date on which shares of the Convertible Preferred Stock are issued.

        "Liquidation Preference" shall have the meaning specified in Section 4(a).

        "Officers' Certificate", when used with respect to the Corporation, shall mean a certificate signed by (a) one of the President, the Chief Executive Officer, Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word added before or after the title "Vice President") and (b) by one of the Treasurer or any Assistant Treasurer, Secretary or any Assistant Secretary or Controller of the Corporation, which is delivered to the Transfer Agent.

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        "Make-Whole Dividend Payment" shall have the meaning specified in Section 7(k).

        "Non-Stock Fundamental Change" shall have the meaning specified in Section 7(l).

        "Purchaser Stock Price" shall have the meaning specified in Section 7(l.)

        "Person" shall mean a corporation, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, a limited liability company, an unincorporated organization or a government or an agency or a political subdivision thereof.

        "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

        "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Corporation or by one or more other Subsidiaries, or by the Corporation and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

        "Trading Day" has the meaning specified in Section 7(l).

        "Transfer Agent" means American Stock Transfer & Trust Company or such other agent or agents of the Corporation as may be designated by the Board of Directors of the Corporation as the transfer agent for the Convertible Preferred Stock.

        The definitions of certain other terms are specified in Section 7.

(3)    Dividends.

        (a)   Holders of the Convertible Preferred Stock are entitled to receive, when, as and if declared by the Board of Directors, out of the funds of the Corporation legally available therefor, cash dividends at the annual rate of 6% of the Liquidation Preference, payable in equal quarterly installments on January 1, April 1, July 1 and October 1 (each a "Dividend Payment Date"), commencing July 1, 2005 (and, in the case of any accrued but unpaid dividends, at such additional times and for such interim periods, if any, as determined by the Board of Directors). If any Dividend Payment Date shall be on a day other than a Business Day, then the Dividend Payment Date shall be on the next succeeding Business Day. Dividends on the Convertible Preferred Stock will be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends and whether or not such dividends are declared, and will be payable to holders of record as they appear on the stock books of the Corporation on such record dates (each such date, a "Dividend Payment Record Date"), which shall be not more than 60 days nor less than 10 days preceding the Dividend Payment Dates thereof, as shall be fixed by the Board of Directors. Dividends on the Convertible Preferred Stock shall accrue (whether or not declared) on a daily basis from the Issue Date, and accrued dividends for each Dividend Period shall accumulate to the extent not paid on the Dividend Payment Date first following the Dividend Period for which they accrue. As used herein, the term "accrued" with respect to dividends includes both accrued and accumulated dividends.

        (b)   The amount of dividends payable per share for each full Dividend Period for the Convertible Preferred Stock shall be computed by dividing the annual dividend rate by four (rounded down to the nearest one one-hundredth (1/100) of one cent). The amount of dividends payable for the initial Dividend Period on the Convertible Preferred Stock, or any other period shorter or longer than a full Dividend Period on the Convertible Preferred Stock, shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Holders of shares of Convertible Preferred Stock called for redemption on a redemption date falling between the close of business on a Dividend Payment Record Date and the opening of business on the corresponding Dividend Payment Date shall, in lieu of

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receiving such dividend on the Dividend Payment Date fixed therefor, receive such dividend payment together with all other accrued and unpaid dividends on the date fixed for redemption (unless such holders convert such shares in accordance with Section 7 hereof). Holders of shares of Convertible Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Convertible Preferred Stock which may be in arrears.

        (c)   So long as any shares of Convertible Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall be declared or paid or set apart for payment on any class or series of stock of the Corporation ranking, as to dividends, on a parity with the Convertible Preferred Stock, for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Convertible Preferred Stock for all Dividend Periods terminating on or prior to the applicable Dividend Payment Date. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, upon the shares of Convertible Preferred Stock and any other class or series of stock ranking on a parity as to dividends with Convertible Preferred Stock, all dividends declared upon shares of Convertible Preferred Stock and all dividends declared upon such other stock shall be declared pro rata so that the amounts of dividends per share declared on the Convertible Preferred Stock and such other stock shall in all cases bear to each other the same ratio that accrued dividends per share on the shares of Convertible Preferred Stock and on such other stock bear to each other.

        (d)   So long as any shares of the Convertible Preferred Stock are outstanding, no other stock of the Corporation ranking on a parity with the Convertible Preferred Stock as to dividends or upon liquidation, dissolution or winding up shall be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund or otherwise for the purchase or redemption of any shares of any such stock) by the Corporation or any Subsidiary unless (i) the full cumulative dividends, if any, accrued on all outstanding shares of Convertible Preferred Stock shall have been paid or set apart for payment for all past Dividend Periods and (ii) sufficient funds shall have been set apart for the payment of the dividend for the current Dividend Period with respect to the Convertible Preferred Stock.

        (e)   So long as any shares of the Convertible Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Common Stock or other stock ranking junior to the Convertible Preferred Stock, as to dividends and upon liquidation, dissolution or winding up) shall be declared or paid or set apart for payment and no other distribution shall be declared or made or set apart for payment, in each case upon the Common Stock or any other stock of the Corporation ranking junior to the Convertible Preferred Stock as to dividends or upon liquidation, dissolution or winding up, nor shall any Common Stock nor any other such stock of the Corporation ranking junior to the Convertible Preferred Stock as to dividends or upon liquidation, dissolution or winding up be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund or otherwise for the purchase or redemption of any shares of any such stock) by the Corporation or any Subsidiary (except (A) by conversion into or exchange for stock of the Corporation ranking junior to the Convertible Preferred Stock as to dividends and upon liquidation, dissolution or winding up; or (B) repurchases of unvested shares of the Corporation's capital stock at cost upon termination of the employment or consultancy of the holder thereof, provided such repurchases are approved by the Board of Directors of the Corporation in good faith) unless, in each case (i) the full cumulative dividends, if any, accrued on all outstanding shares of Convertible Preferred Stock and any other stock of the Corporation ranking on a parity with the Convertible Preferred Stock as to dividends shall have been paid or set apart for payment for all past Dividend Periods and all past dividend periods with respect to such other stock and (ii) sufficient funds shall have been set apart for the payment of the

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dividend for the current Dividend Period with respect to the Convertible Preferred Stock and for the current dividend period with respect to any other stock of the Corporation ranking on a parity with the Convertible Preferred Stock as to dividends.

(4)    Liquidation Preference.

        (a)   In the event of any voluntary or involuntary dissolution, liquidation or winding up of the Corporation (for the purposes of this Section 4, a "Liquidation"), before any distribution of assets shall be made to the holders of Common Stock or the holders of any other stock of the Corporation that ranks junior to the Convertible Preferred Stock upon Liquidation, the holder of each share of Convertible Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, a liquidation preference in an amount equal to $50 per share (the "Liquidation Preference") plus all dividends accrued and unpaid on such share up to the date of distribution of the assets of the Corporation to the holders of Convertible Preferred Stock, and the holders of any class or series of preferred stock ranking on a parity with the Convertible Preferred Stock as to Liquidation shall be entitled to receive the full respective liquidation preferences (including any premium) to which they are entitled and shall receive all accrued and unpaid dividends with respect to their respective shares through and including the date of distribution.

        (b)   If upon any Liquidation of the Corporation, the assets available for distribution to the holders of Convertible Preferred Stock and any other stock of the Corporation ranking on a parity with the Convertible Preferred Stock upon Liquidation which shall then be outstanding shall be insufficient to pay the holders of all outstanding shares of Convertible Preferred Stock and all other such parity stock the full amounts (including all dividends accrued and unpaid) of the liquidating distribution to which they shall be entitled, then the holders of each series of such stock will share ratably in any such distribution of assets first in proportion to their respective liquidation preferences until such preferences are paid in full, and then in proportion to their respective amounts of accrued but unpaid dividends. After payment of any such liquidating preference and accrued dividends, the holders of shares of the Convertible Preferred Stock will not be entitled to any further participation in any distribution of assets by the Corporation.

        (c)   For purposes of this Section 4, a Liquidation shall not include (i) any consolidation or merger of the Corporation with or into any other corporation, (ii) any liquidation, dissolution, winding up or reorganization of the Corporation immediately followed by reincorporation as another corporation or (iii) a sale or other disposition of all or substantially all of the Corporation's assets to another corporation unless in connection therewith the Liquidation of the Corporation is specifically approved by all requisite corporate action.

        (d)   The holder of any shares of Convertible Preferred Stock shall not be entitled to receive any payment owed for such shares under this Section 4 until such holder shall cause to be delivered to the Corporation (i) the certificate(s) representing such shares of Convertible Preferred Stock and (ii) transfer instrument(s) satisfactory to the Corporation and sufficient to transfer such shares of Convertible Preferred Stock to the Corporation free of any adverse interest. No interest shall accrue on any payment upon Liquidation after the due date thereof.

(5)    Redemption at the Option of the Corporation.

        (a)   Convertible Preferred Stock may not be redeemed by the Corporation prior to April 7, 2008, on or after which the Corporation, at its option, may redeem the shares of Convertible Preferred Stock, in whole or in part, out of funds legally available therefor, at any time or from time to time, subject to the notice provisions and provisions for partial redemption described below, during the period beginning on April 1 of the years shown below (beginning on April 7, 2008 and ending on March 31, 2009, in the case of the first such period), at the following redemption prices per share plus an amount

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equal to accrued and unpaid dividends, if any, to (but excluding) the date fixed for redemption, whether or not earned or declared:

Year

  Redemption
Price

2008   $52.10
2009   $51.80
2010   $51.50
2011   $51.20
2012   $50.90
2013   $50.60
2014   $50.30

and $50 at April 1, 2015 and thereafter; provided that, if the applicable redemption date is a Dividend Payment Date, the quarterly payment of dividends becoming due on such date shall be payable to the holders of such shares of Convertible Preferred Stock registered as such on the relevant record date subject to the terms and provisions of Section 3.

        No sinking fund, mandatory redemption or other similar provision shall apply to the Convertible Preferred Stock.

        (b)   In case the Corporation shall desire to exercise the right to redeem the shares of Convertible Preferred Stock, in whole or in part, pursuant to Section 5(a), it shall fix a date for redemption, and it, or at its request (which must be received by the Transfer Agent at least ten (10) Business Days prior to the date the Transfer Agent is requested to give notice as described below unless a shorter period is agreed to by the Transfer Agent), the Transfer Agent in the name of and at the expense of the Corporation, shall mail or cause to be mailed a notice of such redemption at least thirty (30) and not more than ninety (90) days prior to the date fixed for redemption to the holders of the shares of Convertible Preferred Stock so to be redeemed at their last addresses as the same appear on the Corporation's stock records (provided that if the Corporation shall give such notice, it shall also give such notice, and notice of the shares of Convertible Preferred Stock to be redeemed, to the Transfer Agent). Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any share of Convertible Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other share of Convertible Preferred Stock.

        Each such notice of redemption shall specify the number of shares of Convertible Preferred Stock to be redeemed, the date fixed for redemption, the redemption price at which such shares of Convertible Preferred Stock are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of the certificate or certificates representing such shares of Convertible Preferred Stock, that dividends accrued to (but excluding) the date fixed for redemption will be paid as specified in said notice, and that on and after said date dividends thereon or on the portion thereof to be redeemed will cease to accrue. Such notice shall also state the current Conversion Price and the date on which the right to convert such shares of Convertible Preferred Stock into Common Stock will expire.

        On or prior to the redemption date specified in the notice of redemption given as provided in this Section 5(b), the Corporation will deposit with a bank or trust company having an office or agency in the Borough of Manhattan, City of New York and having a combined capital and surplus of at least $50,000,000 (the "Deposit Bank") an amount of money sufficient to redeem on the redemption date all the shares of Convertible Preferred Stock so called for redemption (other than those theretofore surrendered for conversion into Common Stock) at the appropriate redemption price, together with accrued dividends to (but excluding) the date fixed for redemption; provided that if such payment is

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made on the redemption date it must be received by the Deposit Bank by 10:00 a.m. New York City time, on such date. If any shares of Convertible Preferred Stock called for redemption are converted pursuant hereto, any money deposited with the Deposit Bank or so segregated and held in trust for the redemption of such shares of Convertible Preferred Stock shall be paid to the Corporation upon its request, or, if then held by the Corporation shall be discharged from such trust. The Corporation shall be entitled to make any deposit of funds contemplated by this Section 5 under arrangements designed to permit such funds to generate interest or other income for the Corporation, and the Corporation shall be entitled to receive all interest and other income earned by any funds while they shall be deposited as contemplated by this Section 5, provided that the Corporation shall maintain on deposit funds sufficient to satisfy all payments which the deposit arrangement shall have been established to satisfy. If the conditions precedent to the disbursement of any funds deposited by the Corporation pursuant to this Section 5 shall not have been satisfied within two years after the establishment of such funds, then (i) such funds shall be returned to the Corporation upon its request; (ii) after such return, such funds shall be free of any trust which shall have been impressed upon them; (iii) the person entitled to the payment for which such funds shall have been originally intended shall have the right to look only to the Corporation for such payment, subject to applicable escheat laws; and (iv) the trustee which shall have held such funds shall be relieved of any responsibility for such funds upon the return of such funds to the Corporation.

        If fewer than all the outstanding shares of Convertible Preferred Stock are to be redeemed, shares to be redeemed shall be selected by the Corporation from outstanding shares of Convertible Preferred Stock not previously called for redemption by lot or pro rata (as near as may be) or by any other equitable method determined by the Corporation in its sole discretion.

        (c)   If notice of redemption has been given as above provided, on and after the date fixed for redemption (unless the Corporation shall default in the payment of the redemption price, together with accrued and unpaid dividends to (but excluding) said date), dividends on such shares of Convertible Preferred Stock so called for redemption shall cease to accrue and such shares of Convertible Preferred Stock shall be deemed no longer outstanding and the holders thereof shall have no right in respect of such shares of Convertible Preferred Stock except the right to receive the redemption price thereof and accrued and unpaid dividends to (but excluding) the date fixed for redemption, without interest thereon. On presentation and surrender of the certificate or certificates representing such shares of Convertible Preferred Stock at a place of payment specified in said notice, such shares of Convertible Preferred Stock to be redeemed shall be redeemed by the Corporation at the applicable redemption price, together with dividends accrued thereon to (but excluding) the date fixed for redemption; provided that, if the applicable redemption date is a Dividend Payment Date, the quarterly payment of dividends becoming due on such date shall be payable to the holders of such shares of Convertible Preferred Stock registered as such on the relevant record date subject to the terms and provisions of Section 3.

        If fewer than all the shares of Convertible Preferred Stock represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof.

        (d)   In connection with any redemption of Convertible Preferred Stock, the Corporation may arrange for the purchase and conversion of any Convertible Preferred Stock by an agreement with one or more investment bankers or other purchasers to purchase such Convertible Preferred Stock by paying to the Deposit Bank in trust for the holders of Convertible Preferred Stock, on or before the date fixed for redemption, an amount not less than the applicable redemption price, together with dividends accrued to (but excluding) the date fixed for redemption, of such Convertible Preferred Stock. Notwithstanding anything to the contrary contained in this Section 5, the obligation of the Corporation to pay the redemption price of such Convertible Preferred Stock, together with dividends accrued to (but excluding) the date fixed for redemption, shall be deemed to be satisfied and

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discharged to the extent such amount is so paid by such purchasers. If such an agreement is entered into, a copy of which will be filed with the Deposit Bank prior to the date fixed for redemption, any certificate representing the Convertible Preferred Stock so converted not duly surrendered for conversion by the holders thereof may, at the option of the Corporation, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such holders and (notwithstanding anything to the contrary contained in Section 7) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the date fixed for redemption (and the right to convert any such Convertible Preferred Stock shall be deemed to have been extended through such time), subject to payment of the above amount as aforesaid. At the direction of the Corporation, the Deposit Bank shall hold and dispose of any such amount paid to it in the same manner as it would monies deposited with it by the Corporation for the redemption of Convertible Preferred Stock.

(6)    Shares to Be Retired.    Any share of Convertible Preferred Stock converted, redeemed or otherwise acquired by the Corporation shall be retired and canceled and shall upon cancellation be restored to the status of authorized but unissued shares of preferred stock, subject to reissuance by the Board of Directors as shares of Convertible Preferred Stock of one or more series.

(7)    Conversion.    Holders of shares of Convertible Preferred Stock shall have the right to convert all or a portion of such shares (including fractions of such shares) into shares of Common Stock, as follows:

        (a)   Subject to and upon compliance with the provisions of this Section 7, a holder of shares of Convertible Preferred Stock shall have the right, at the holder's option, at any time after the Issue Date (except that, with respect to shares of Convertible Preferred Stock which shall be called for redemption, such right shall terminate at the close of business on the Business Day immediately preceding the date fixed for redemption of such shares of Convertible Preferred Stock unless the Corporation shall default in payment due upon redemption thereof) to convert any of such shares into that number of fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) obtained by dividing $50 by the Conversion Price, as adjusted in accordance with this Section 7, by surrender of the certificate or certificates representing such share of Convertible Preferred Stock so to be converted in the manner provided in Section 7(b). As used herein, the initial "Conversion Price" shall mean the dollar amount obtained by dividing $50 by 6.2189. A holder of the Convertible Preferred Stock is not entitled to any rights of a holder of Common Stock until such holder has converted his, her or its Convertible Preferred Stock to Common Stock, and only to the extent such Convertible Preferred Stock is deemed to have been converted to Common Stock under this Section 7.

        (b)   In order to exercise the conversion right, the holder of the Convertible Preferred Stock to be converted shall surrender the certificate or certificates (with the Conversion Notice, the form of which is set forth in Section 14(a), on the reverse of the certificate or certificates duly completed) representing the number of shares to be so converted, duly endorsed, at an office or agency of the Transfer Agent in the Borough of Manhattan, City of New York, and shall give written notice of conversion to the office or agency that the holder elects to convert such number of shares of Convertible Preferred Stock specified in said notice. Such notice shall also state the name or names (with address) in which the certificate or certificates for shares of Common Stock which shall be of Common Stock issuable on such conversion shall be issued, and shall be accompanied by transfer taxes, if required pursuant to Section 7(f). Each such share of Convertible Preferred Stock surrendered for conversion shall, unless the shares of Common Stock issuable on conversion are to be issued in the same name in which such share of Convertible Preferred Stock is registered, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Corporation duly executed by the holder or his, her or its duly authorized attorney.

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        As promptly as practicable after satisfaction of the requirements for conversion set forth above, the Corporation shall issue and shall deliver to such holder or, if shares of Common Stock issuable on conversion are to be issued in a name other than that in which such share of Convertible Preferred Stock to be converted is registered (as if such transfer were a transfer of the share of Convertible Preferred Stock so converted), to such other person, at the office or agency of the Transfer Agent in the Borough of Manhattan, City of New York, the certificate or certificates representing the number of shares of Common Stock issuable upon the conversion of such share of Convertible Preferred Stock or a portion thereof in accordance with the provisions of this Section 7, the payment (in appropriate form) of the Make-Whole Dividend Payment (as defined in Section 7(k)), if any, payable upon such conversion, and a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such conversion, as provided in Section 7(c) (which payment, if any, shall be paid no later than five Business Days after satisfaction of the requirements for conversion set forth above).

        Each conversion pursuant to Section 7(a) shall be deemed to have been effected on the date on which the requirements set forth above in this Section 7(b) have been satisfied as to such share of Convertible Preferred Stock so converted, and the person in whose name any certificate or certificates for the shares of Common Stock shall be issuable upon such conversion shall be deemed to have become on said date the holder of record of the shares represented thereby; provided, however, that if any such surrender occurs on any date when the stock transfer books of the Corporation shall be closed, the conversion shall be effected on the next succeeding day on which such stock transfer books are open, and the person in whose name the certificates are to be issued shall be the record holder thereof for all purposes, but such conversion shall be at the Conversion Price in effect on the date upon which certificate or certificates representing such shares of Convertible Preferred Stock shall be surrendered. All shares of Common Stock delivered upon conversion of the Convertible Preferred Stock will, upon delivery, be duly authorized, validly issued and fully paid and nonassessable.

        In the case of any share of Convertible Preferred Stock which is converted after any record date with respect to the payment of a dividend on the Convertible Preferred Stock and prior to the close of business on the Business Day prior to the next succeeding Dividend Payment Date, the dividend due on such Dividend Payment Date shall be payable on such Dividend Payment Date to the holder of record of such share as of such preceding record date notwithstanding such conversion; provided that shares of Convertible Preferred Stock surrendered for conversion during the period between the close of business on any record date with respect to the payment of a dividend on the Convertible Preferred Stock and prior to the close of business on the Business Day prior to the next succeeding Dividend Payment Date must (except in the case of shares of Convertible Preferred Stock which (a) have been called for redemption and a notice of redemption has been sent to the holders of Convertible Preferred Stock pursuant to Section 5(b) or (b) have been elected to be automatically converted and for which an Automatic Conversion Notice has been issued in accordance with Section 7(j)) be accompanied by payment in funds acceptable to the Corporation of an amount equal to the dividend payable on such Dividend Payment Date on the shares of Convertible Preferred Stock being surrendered for conversion. The Transfer Agent shall not be required to accept for conversion any shares of Convertible Preferred Stock not accompanied by any payment required by the preceding sentence. Except as provided in this paragraph or Section 7(k), no payment or adjustment shall be made upon any conversion on account of any dividends accrued on shares of Convertible Preferred Stock surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion.

        (c)   In connection with the conversion of any shares of Convertible Preferred Stock (whether pursuant to Section 7(a) or Section 7(j)), a portion of such shares may be converted; however, no fractional shares of Common Stock or scrip representing fractional shares shall be issued upon conversion of the Convertible Preferred Stock. If any fractional share of stock otherwise would be issuable upon the conversion of the Convertible Preferred Stock, the Corporation shall make an adjustment therefor in cash at the current market value thereof to the holder of the Convertible

9



Preferred Stock. The current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the day on which the Convertible Preferred Stock (or a specified portion thereof) is deemed to have been converted and such Closing Price shall be determined as provided in Section 7(l). If more than one share (or fraction thereof) shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Convertible Preferred Stock so surrendered.

        (d)   The Conversion Price shall be adjusted from time to time by the Corporation as follows:

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11


12


13


14


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        (e)   In the event that the Corporation shall be a party to any transaction (including, without limitation (a) any recapitalization or reclassification of shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination of Common Stock), (b) any consolidation of the Corporation with, or merger of the Corporation into, any other person, or any merger of another person into the Corporation (other than a merger that does not result in a reclassification, conversion, exchange or cancellation of Common Stock), (c) any sale, transfer or lease of all or substantially all of the assets of the Corporation or (d) any compulsory share exchange) pursuant to which either shares of Common Stock shall be converted into the right to receive other securities, cash or other property, or, in the case of a sale or transfer of all or substantially all of the assets of the Corporation, the holders of Common Stock shall be entitled to receive other securities, cash or other property, then appropriate provision shall be made so that the holder of each share of Convertible Preferred Stock then outstanding shall have the right thereafter to convert such Convertible Preferred Stock only into: (x) in the case of any such transaction that does not constitute a Common Stock Fundamental Change (as defined in Section 7(l)) and subject to funds being legally available for such purpose under applicable law at the time of such conversion, the kind and amount of the securities, cash or other property that would have been receivable upon such recapitalization, reclassification, consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock issuable upon

16


conversion of such share of Convertible Preferred Stock immediately prior to such recapitalization, reclassification, consolidation, merger, sale, transfer or share exchange, after giving effect, in the case of any Non-Stock Fundamental Change (as defined in Section 7(l)), to any adjustment in the Conversion Price in accordance with Section 7(i)(i), and (y) in the case of any such transaction that constitutes a Common Stock Fundamental Change, common stock of the kind received by holders of Common Stock as a result of such Common Stock Fundamental Change in an amount determined in accordance with Section 7(i)(ii). The company formed by such consolidation or resulting from such merger or that acquires such assets or that acquires the Corporation's shares, as the case may be, shall make provision in its certificate or articles of incorporation or other constituent document to establish such right. Such certificate or articles of incorporation or other constituent document shall provide for adjustments that, for events subsequent to the effective date of such certificate or articles of incorporation or other constituent document, shall be as nearly equivalent as may be practicable to the relevant adjustments provided for in this Section 7. The above provisions shall similarly apply to successive transactions of the type described in this Section 7(e).

        (f)    The issue of stock certificates representing the shares of Common Stock on conversions of the Convertible Preferred Stock shall be made without charge to the holders of such shares for any issuance tax in respect thereof imposed by the government of the United States or any political subdivision thereof or other cost incurred by the Corporation in connection with such conversion and/or the issuance of such shares. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than the name in which the shares of Convertible Preferred Stock with respect to which such shares of Common Stock are issued are registered, and the Corporation shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.

        (g)   The Corporation covenants that all shares of Common Stock which may be delivered upon conversion of shares of Convertible Preferred Stock will upon delivery be duly and validly issued and fully paid and non-assessable, free of all liens and charges and not subject to any preemptive rights.

        The Corporation covenants that it will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock or its issued shares of Common Stock held in its treasury, or both, a sufficient number of shares of Common Stock for the purpose of effecting conversions of shares of Convertible Preferred Stock not theretofore converted into Common Stock. For purposes of this reservation of Common Stock, the number of shares of Common Stock which shall be deliverable upon the conversion of all outstanding shares of Convertible Preferred Stock shall be computed as if at the time of computation all outstanding shares of Convertible Preferred Stock were held by a single holder. The issuance of shares of Common Stock upon conversion of shares of Convertible Preferred Stock is authorized in all respects.

        The Corporation shall from time to time, in accordance with the laws of the State of Florida, use its best efforts to increase the authorized number of shares of Common Stock if at any time the number of shares of authorized and unissued Common Stock shall not be sufficient to permit the conversion of all the then outstanding shares of Convertible Preferred Stock.

        Before taking any action which would cause an adjustment reducing the Conversion Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Convertible Preferred Stock, the Corporation will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue shares of such Common Stock at such adjusted Conversion Price.

        The Corporation covenants that if any shares of Common Stock to be provided for the purpose of conversion of the Convertible Preferred Stock hereunder require registration with or approval of any

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governmental authority under any Federal or State law before such shares may be validly issued upon conversion, the Corporation will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be.

        The Corporation further covenants that if at any time the Common Stock shall be listed on the New York Stock Exchange, the Nasdaq National Market or any national securities exchange or automated quotation system the Corporation will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Convertible Preferred Stock.

        (h)   In case:


the Corporation shall cause to be filed with the Transfer Agent and to be mailed to each holder of the Convertible Preferred Stock at his, her or its address appearing on the Corporation's stock records, as promptly as possible but in any event at least fifteen days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.

        (i)    Notwithstanding any other provisions in this Section 7 to the contrary, if any Fundamental Change (as defined in Section 7(l)) occurs, then the Conversion Price in effect will be adjusted immediately after such Fundamental Change as described below. In addition, in the event of a Common Stock Fundamental Change, shares of Convertible Preferred Stock shall thereafter be convertible solely into common stock of the kind received by holders of Common Stock as the result of such Common Stock Fundamental Change.

        For purposes of calculating any adjustment to be made pursuant to this Section 7(i) in the event of a Fundamental Change, immediately after such Fundamental Change (and for such purposes a Fundamental Change shall be deemed to occur on the earlier of (a) the occurrence of such Fundamental Change and (b) the date, if any, fixed for determination of stockholders entitled to

18



receive the cash, securities, property or other assets distributable in such Fundamental Change to holders of the Common Stock):

        (j)    The Corporation may elect to automatically convert all or any portion of the Convertible Preferred Stock (an "Automatic Conversion") at any time if the Closing Price of the Corporation's Common Stock has exceeded 150% of the Conversion Price for at least 20 Trading Days during a 30-day Trading Day period, ending within five Trading Days prior to the date of the Automatic Conversion Notice (as defined below). If fewer than all the outstanding shares of Convertible Preferred Stock are to be converted in connection with any Automatic Conversion, shares to be converted shall be selected by the Corporation from outstanding shares of Convertible Preferred Stock by lot or pro rata (as near as may be) or by any other equitable method determined by the Corporation in its sole discretion. In the event that the Automatic Conversion Date (as defined below in this Section 7(j)) occurs on or prior to April 1, 2008, the Corporation will pay the Make-Whole Dividend Payment on the Automatic Conversion Date.

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        (k)   Upon any conversion of the Convertible Preferred Stock (whether pursuant to Section 7(a) or 7(j)) prior to April 1, 2008, the Corporation shall make a payment (the "Make-Whole Dividend Payment") with respect to the shares of Convertible Preferred Stock so converted in an amount equal to full amount of dividends that would have accrued and become payable through and including April 1, 2008 pursuant to Section 3(a) on such shares of Convertible Preferred Stock, less any dividends actually accrued and paid with respect to such shares of Convertible Preferred Stock prior to the date upon which such conversion becomes effective. The Corporation shall calculate the amount of the Make-Whole Dividend Payment. The Corporation may elect to pay the Make-Whole Dividend Payment or any portion thereof (i) in cash or, (ii) by delivering shares of Common Stock. In the event of an Automatic Conversion pursuant to Section 7(j) or a voluntary conversion pursuant to Section 7(a) on or following the date of an Automatic Conversion Notice (unless and until such Automatic Conversion Notice shall be deemed to have no effect), the number of shares to be delivered in the event the Corporation shall elect to make the Make-Whole Dividend Payment (or any portion thereof) in shares of Common Stock shall be equal to (x) the Make-Whole Dividend Payment (or any portion thereof that the Corporation elects to pay in shares of Common Stock) divided by (y) 150% of the Conversion Price (as adjusted pursuant to this Section 7) in effect on the effective date of such conversion. In all other circumstances in which the Corporation is required to make the Make-Whole Dividend Payment and elects to make the Make-Whole Dividend Payment (or any portion thereof) in shares of Common Stock, the number of shares of Common Stock to be delivered shall be equal to the greater of (1) (A) the Make-Whole Dividend Payment (or any portion thereof that the Corporation elects to pay in shares of Common Stock) divided by (B) 95% of the average of the Closing Price per share of Common Stock for the five consecutive Trading Days immediately preceding and including the last Trading Day prior to the effective date of such conversion; or (2) (A) the Make-Whole Dividend Payment (or any portion thereof that the Corporation elects to pay in shares of Common Stock) divided by (B) $6.99. All shares of Common Stock which may be issued upon payment of the Make-Whole Dividend Payment (or any portion thereof) will be issued out of the Corporation's authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.

        (l)    The following definitions shall apply to terms used in this Section 7:

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22


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(8)    Ranking.    Any class or classes of stock of the Corporation shall be deemed to rank:

        (a)   prior to the Convertible Preferred Stock, as to dividends or as to distribution of assets upon liquidation, dissolution or winding up, if the holders of such class shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of Convertible Preferred Stock.

        (b)   on a parity with the Convertible Preferred Stock, as to dividends or as to distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, Dividend Payment Dates or redemption or liquidation prices per share thereof be different from those of the Convertible Preferred Stock, if the holders of such class of stock and the Convertible Preferred Stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation prices, without preference or priority of one over the other; and

        (c)   junior to the Convertible Preferred Stock, as to dividends or as to the distribution of assets upon liquidation, dissolution or winding up, if such stock shall be Common Stock or if the holder of Convertible Preferred Stock shall be entitled to receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of shares of such stock. The Junior Participating Preferred Stock of the Corporation shall be deemed to be junior to the Convertible Preferred Stock.

(9)    Voting Rights.

        (a)   The holders of the Convertible Preferred Stock will not have any voting rights except as set forth below or as otherwise from time to time required by law. In connection with any right to vote, each holder of the Convertible Preferred Stock will have one vote for each share of Convertible Preferred Stock held. Any shares of Convertible Preferred Stock held by the Corporation or any entity controlled by the Corporation shall not have voting rights hereunder and shall not be counted in determining the presence of a quorum.

        (b)   Whenever dividends on the Convertible Preferred Stock or on any outstanding shares of preferred stock ranking on parity as to dividends with the Convertible Preferred Stock shall be in arrears in an aggregate amount equal to at least six quarterly dividends (whether or not consecutive), (i) the number of members of the Board of Directors of the Corporation shall be increased by two, effective as of the time of election of such directors as hereinafter provided and (ii) the holders of the Convertible Preferred Stock (voting separately as a class with the holders of preferred stock ranking on parity as to dividends with the Convertible Preferred Stock on which like voting rights have been conferred and are exercisable, without regard to series) will have the exclusive right to vote for and elect such two additional directors of the Corporation at any meeting of stockholders of the

24



Corporation at which directors are to be elected held during the period such dividends remain in arrears. The right of the holders of the Convertible Preferred Stock to vote for such two additional directors shall terminate when all accrued and unpaid dividends on the Convertible Preferred Stock and all other affected classes or series of preferred stock ranking on parity as to dividends with the Convertible Preferred Stock have been declared and paid or set apart for payment. The holders of the Convertible Preferred Stock voting as a class shall have the right to remove without cause at any time and replace any directors such holders shall have elected pursuant to this Section 9. If the office of any director elected by the holders of Convertible Preferred Stock voting as a class becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the remaining director elected by the holders of Convertible Preferred Stock (together with any other series of preferred stock ranking on a parity with the Convertible Preferred Stock and upon which like voting rights have been conferred and are exercisable) voting as a class may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. The term of office of all directors so elected shall terminate immediately upon the termination of the right of the holders of the Convertible Preferred Stock to vote for such directors, and the number of directors of the Board of Directors of the Corporation shall immediately thereafter be reduced by two. The Board of Directors of the Corporation shall determine, when and if required, to which class of directors such directors appointed by the holders of the Convertible Preferred Stock shall be appointed under the Corporation's Articles of Incorporation; provided, however, that if applicable, the term of such directors shall terminate earlier than the expiration of the terms provided for the applicable class or classes of directors if the right of the holders of Convertible Preferred Stock to appoint directors under this Section 9 terminates as provided herein.

        The foregoing right of the holders of the Convertible Preferred Stock with respect to the election of two directors may be exercised at any annual meeting of stockholders or at any special meeting of stockholders held for such purpose. If the right to elect directors shall have accrued to the holders of the Convertible Preferred Stock more than ninety (90) days preceding the date established for the next annual meeting of stockholders, the President of the Corporation shall, within twenty (20) days after the delivery to the Corporation at its principal office of a written request for a special meeting signed by the holders of at least 10% of all outstanding shares of Convertible Preferred Stock, call a special meeting of the holders of the Convertible Preferred Stock to be held within sixty (60) days after the delivery of such request for the purpose of electing such additional directors.

        (c)   So long as the Convertible Preferred Stock is outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least a majority (or two-thirds if the Convertible Preferred Stock is then listed on the New York Stock Exchange, unless, in either case, a higher percentage shall then be required by applicable law) of all outstanding shares of Convertible Preferred Stock voting separately as a class with the holders of preferred stock ranking on parity as to dividends with the Convertible Preferred Stock on which like voting rights have been conferred and are exercisable, without regard to series, (i) amend, alter or repeal any provision of the Articles of Incorporation or the Bylaws of the Corporation so as to affect adversely the relative rights, preferences, qualifications, limitations or restrictions of the Convertible Preferred Stock, or (ii) create, authorize or issue, or reclassify any authorized stock of the Corporation into, or increase the authorized amount of, any class or series of the Corporation's capital stock ranking senior to the Convertible Preferred Stock as to dividends or as to distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, or any obligation or security convertible into shares of such a class or series. In addition, so long as the Convertible Preferred Stock is outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least a majority (unless a higher percentage shall then be required by applicable law) of all outstanding shares of Convertible Preferred Stock voting separately as a class with the holders of preferred stock ranking on parity as to dividends with the Convertible Preferred Stock on which like voting rights have been conferred and are exercisable, without regard to series, enter into a share exchange pursuant to which

25



the Convertible Preferred Stock would be exchanged for any other securities or merge or consolidate with or into any other person or permit any other person to merge or consolidate with or into the Corporation, unless in such case each share of Convertible Preferred Stock shall remain outstanding or unaffected or shall be converted into or exchanged for convertible preferred stock of the surviving entity having voting rights, preferences, limitations or special rights thereof substantially similar (but no less favorable) to a share of Convertible Preferred Stock. A class vote on the part of the Convertible Preferred Stock shall, without limitation, specifically not be deemed to be required (except as otherwise required by law or resolution of the Corporation's Board of Directors) in connection with (a) the authorization, issuance or increase in the authorized amount of any shares of capital stock ranking junior to or on parity with the Convertible Preferred Stock both as to the payment of dividends and as to distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, when and if issued, including Common Stock; or (b) the authorization, issuance or increase in the amount of any bonds, mortgages, debentures or other obligations of the Corporation (other than those that may be covered by clause (ii) of the preceding sentence).

(10)    [Intentionally Omitted.]

(11)    Record Holders.    The Corporation and the Transfer Agent may deem and treat the record holder of any shares of Convertible Preferred Stock as the true and lawful owner thereof for all purposes and neither the Corporation nor the Transfer Agent shall be affected by any notice to the contrary.

(12)    Notice.    Except as may otherwise be provided for herein, all notices referred to herein shall be in writing, and all notices hereunder shall be deemed to have been given upon receipt, in the case of a notice of conversion given to the Corporation as contemplated in Section 7(b) hereof, or, in all other cases, upon the earlier of receipt of such notice or three Business Days after the mailing of such notice if sent by registered mail (unless first-class mail shall be specifically permitted for such notice under the terms of this resolution) with postage prepaid, addressed, if to the Corporation, to its offices at 1655 Roberts Boulevard NW, Suite 142, Kennesaw, GA, 30144 (Attention: President) or to an agent of the Corporation designated as permitted by this certificate, or, if to any holder of the Convertible Preferred Stock, to such holder at the address of such holder of the Convertible Preferred Stock as listed in the Corporation's stock records or to such other address as the Corporation or holder, as the case may be, shall have designated by notice similarly given.

(13)    Form of Certificates; Transfer.

        (a)   So long as the shares of Convertible Preferred Stock are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, all shares of Convertible Preferred Stock that are so eligible may be represented by a Convertible Preferred Stock certificate in global form (the "Global Certificate") registered in the name of the Depositary or the nominee of the Depositary, except as otherwise specified below. The transfer, conversion and exchange of beneficial interests in the Global Certificate shall be effected through the Depositary in accordance with these Articles and the procedures of the Depositary therefor.

        Transfers of interests in a Global Certificate will be made in accordance with the standing instructions and procedures of the Depository and its participants. The Transfer Agent shall make appropriate endorsements to reflect increases or decreases in the Global Certificate as set forth on the face of the Global Certificate to reflect any such transfers.

        Except as provided below, beneficial owners of an interest in a Global Certificate shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered holders of such Global Certificates.

        No definitive Convertible Preferred Stock certificate, or portion thereof, in respect of which the Corporation or an Affiliate of the Corporation held any beneficial interest shall be included in a Global

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Certificate. The Transfer Agent shall issue Convertible Preferred Stock certificates in definitive form upon any transfer of a beneficial interest in any Global Certificate to the Corporation or any Affiliate of the Corporation.

        (b)   Any Global Certificate may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of these Articles as may be required by the Custodian, the Depositary, by the New York Stock Exchange or by the National Association of Securities Dealers, Inc. in order to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange upon which the shares of Convertible Preferred Stock may be listed or traded or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular shares of Convertible Preferred Stock are subject.

        (c)   Notwithstanding any other provisions of this Certificate (other than the provisions set forth in this Section 13(c)), a Global Certificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee to a successor Depositary or a nominee of such successor Depositary.

        The Depositary shall be a clearing agency registered under the Exchange Act. The Corporation initially appoints The Depository Trust Company to act as Depositary with respect to the Global Certificates. Initially, the Global Certificate shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with a custodian for Cede & Co.

        If at any time the Depositary for a Global Certificate notifies the Corporation that it is unwilling or unable to continue as Depositary for such Global Certificate, the Corporation may appoint a successor Depositary with respect to such Global Certificate. If a successor Depositary for the Convertible Preferred Stock is not appointed by the Corporation within 90 days after the Corporation receives such notice, the Corporation will execute, and the Transfer Agent will authenticate and deliver, Convertible Preferred Stock in certificated form, in an aggregate principal amount equal to the principal amount of the Global Certificate, in exchange for such Global Certificate.

        Convertible Preferred Stock in definitive form issued in exchange for all or a part of a Global Certificate pursuant to this Section 13 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Transfer Agent. Upon execution and authentication, the Transfer Agent shall deliver such Convertible Preferred Stock in certificated form to the persons in whose names such Convertible Preferred Stock in definitive form are so registered.

        At such time as all interests in a Global Certificate have been redeemed, converted, exchanged, repurchased or canceled for Convertible Preferred Stock in definitive form, or transferred to a transferee who receives Convertible Preferred Stock in definitive form, such Global Certificate shall be, upon receipt thereof, canceled by the Transfer Agent in accordance with standing procedures and instructions existing between the Custodian and Depositary. At any time prior to such cancellation, if any interest in a Global Certificate is exchanged for Convertible Preferred Stock in certificated form, redeemed, converted, exchanged, repurchased by the Corporation or canceled, or transferred for part of a Global Certificate, the principal amount of such Global Certificate shall, in accordance with the standing procedures and instructions existing between the Custodian and the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Certificate, by the Transfer Agent or the Custodian, at the direction of the Transfer Agent, to reflect such reduction or increase.

        (d)   Any Convertible Preferred Stock or Common Stock issued upon the conversion or exchange of a Security that is purchased or owned by the Corporation or any Affiliate thereof may not be resold by the Corporation or such Affiliate unless registered under the Securities Act or resold pursuant to an

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exemption from the registration requirements of the Securities Act in a transaction which results in such Convertible Preferred Stock or Common Stock, as the case may be, no longer being "restricted securities" (as defined under Rule 144). Any Convertible Preferred Stock or Common Stock issued in definitive form to the Corporation or any Affiliate thereof shall be endorsed with or have incorporated in the text thereof such legends or recitals as necessary to set forth the foregoing restrictions.

(14)    Form of Notice of Conversion; Form of Assignment.

        (a)   The following is the form of Conversion Notice to be set forth on the reverse of the Convertible Preferred Stock certificate:

[FORM OF CONVERSION NOTICE]

CONVERSION NOTICE

To:                                         

        The undersigned registered owner of the Convertible Preferred Stock hereby irrevocably exercises the option to convert the Convertible Preferred Stock, or the portion hereof below designated, into shares of Common Stock in accordance with the terms of the Articles of Incorporation, and directs that the shares issuable and deliverable upon such conversion, together with any shares issuable and deliverable or check in payment of any Make-Whole Dividend Payment, if any, and any check in payment for fractional shares and any Convertible Preferred Stock representing any unconverted amount of shares hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of the Convertible Preferred Stock not converted are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto.

Dated:        
   
   



 

 


Signature(s)

 

 

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17AD-15 if shares of Common Stock are to be issued, or Convertible Preferred Stock to be delivered, other than to and in the name of the registered holder.

 

 
         

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Signature Guarantee

 

 

Fill in for registration of shares if to be issued, and Convertible Preferred Stock if to be delivered, other than to and in the name of the registered holder:

 

 


(Name)

 

 


(Street Address)

 

 


(City, State and Zip Code)
Please print name and address

 

 
        Number of shares to be converted (if less than all):

 

 

 

 




Taxpayer

 

 
        Social Security or Other Identification Number

 

 

 

 


        (b)   The following is the form of Assignment to be set forth on the reverse of the Convertible Preferred Stock certificate:

[FORM OF ASSIGNMENT]

        For value received            hereby sell(s), assign(s) and transfer(s) unto                                         (Please insert social security or Taxpayer Identification Number of assignee) the Convertible Preferred Stock, and hereby irrevocably constitutes and appoints                              attorney to transfer the said Convertible Preferred Stock on the books of the Corporation, with full power of substitution in the premises.

        Unless the appropriate box below is checked, the undersigned confirms that such Convertible Preferred Stock is not being transferred to the Corporation or an "affiliate" of the Corporation as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate").

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Dated:        
   
   



 

 


Signature(s)

 

 

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17AD-15 if shares of Common Stock are to be issued, or Convertible Preferred Stock to be delivered, other than to and in the name of the registered holder.

 

 

Signature Guarantee

 

 

NOTICE: The signature on the conversion notice, or the assignment must correspond with the name as written upon the face of the Convertible Preferred Stock in every particular without alteration or enlargement or any change whatever.


        3.     This amendment of the Articles of Incorporation is permitted by Section 607.0602 without shareholder approval.

        4.     The amendment of the Articles of Incorporation does not adversely affect the rights or preferences of the holders of outstanding shares of any class or series of stock and does not result in the percentage of authorized shares that remain unissued after the designation exceeding the percentage of authorized shares that were unissued before the designation.

        5.     The effective date of these Articles of Amendment is March 15, 2005.

        IN WITNESS WHEREOF, the foregoing Articles of Amendment are executed by the President, STEVEN G. ANDERSON and attested by SUZANNE K. GABBERT, as Secretary of CryoLife, on the 15th day of March, 2005.


 

 

/s/  
STEVEN G. ANDERSON      
Steven G. Anderson
President and CEO
CryoLife, Inc.

 

 

/s/  
SUZANNE K. GABBERT      
Suzanne K. Gabbert
Secretary
CryoLife, Inc.

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ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF CRYOLIFE, INC.

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Exhibit 4.1

PREFERRED STOCK       PREFERRED STOCK

NUMBER

 

 

 

SHARES

 

 

LOGO

 

 

INCORPORATED UNDER THE
LAWS
OF THE STATE OF FLORIDA

 

 

 

SEE REVERSE FOR
CERTAIN DEFINITIONS

 

 

 

 

CUSIP 228903 20 9

THIS CERTIFIES THAT [NAME]

is the record holder of [NUMBER]


FULLY PAID AND NONASSESSABLE SHARES OF 6% CONVERTIBLE
PREFERRED STOCK, PAR VALUE $0.01 PER SHARE, OF

CRYOLIFE, INC.

transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer Agent and Registrar.

        WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.

Dated:            

/s/  
SUZANNE K. GABBERT      
Secretary

 

[SEAL]

 

/s/  
STEVEN G. ANDERSON      
Chairman and Chief Executive Officer

COUNTERSIGNED AND REGISTERED:

 

 

 

 

    
AMERICAN STOCK TRANSFER & TRUST COMPANY

 

 

 

 
Transfer Agent and Registrar,        

By:

 

 

 

 

 

 
   
Authorized Signature
       

CRYOLIFE, INC.

        THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS A STATEMENT OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS, INCLUDING, WITHOUT LIMITATION, A COPY OF THE ARTICLES OF AMENDMENT RELATED THERETO. SUCH REQUEST MAY BE MADE TO THE CORPORATION OR THE TRANSFER AGENT.

CONVERSION NOTICE

To:                                         

The undersigned registered owner of the Preferred Stock hereby irrevocably exercises the option to convert the Preferred Stock, or the portion hereof below designated, into shares of Common Stock in accordance with the terms of the Articles of Incorporation, and directs that the shares issuable and deliverable upon such conversion, together with any shares issuable and deliverable or check in payment of any Make-Whole Dividend Payment, if any, and any check in payment for fractional shares and any Preferred Stock representing any unconverted amount of shares hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of the Preferred Stock not converted are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto.

Dated:        
   
 
Signatures(s)


Signature Guarantee

 


Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Preferred Stock to be delivered, other than to and in the name of the registered holder.

Fill in for registration of shares if to be issued, and Preferred Stock if to be delivered, other than to and in the name of the registered holder:

    Number of Shares to be
converted (if less than all):


Name

 




Street Address

 

Social Security or other Taxpayer Identification Number

 

 



City, State and Zip Code
   

ASSIGNMENT

        For value received,                          hereby sell(s), assign(s) and transfer(s) unto                         

PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE
   



 

 

the Preferred Stock, and hereby irrevocably constitutes and
appoints        
   


attorney to transfer the said Preferred Stock on the books of the Company with full power of substitution in the premises.

Unless the appropriate box below is checked, the undersigned confirms that such Preferred Stock is not being transferred to the Company or an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate").

o
The transferee is an Affiliate of the Company

o
The transferee is the Company

Dated:        
   
 
Signatures(s)

Signature Guarantee:

 

 



 


NOTICE: The signature on the conversion notice, or the assignment must correspond with the name as written upon the face of the Preferred Stock in every particular without alteration or enlargement or any change whatever.   Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Preferred Stock to be delivered, other than to and in the name of the registered holder.

        The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM — as tenants in common   UNIF GIFT MIN ACT —       Custodian    
         
     
          (Cust)       (Minor)
  TEN ENT — as tenants by the entireties           under Uniform Gifts to Minors
          Act        
             
(State)
    JT TEN — as joint tenants with right of survivorship and not as tenants in common                
      UNIF TRF MIN ACT —       Custodian (until age         )
         
       
          (Cust)        
              under Uniform Transfers to Minors
         
(Minor)
       

 

 

 

 

 

Act

 

 

 

 
             
(State)

Additional abbreviations may also be used though not in the above list.




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FULLY PAID AND NONASSESSABLE SHARES OF 6% CONVERTIBLE PREFERRED STOCK, PAR VALUE $0.01 PER SHARE, OF CRYOLIFE, INC.