As filed
with the U.S. Securities and Exchange Commission on April 28, 2008
Registration
Statement No. _____________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CRYOLIFE,
INC.
(Exact
name of registrant as specified in its charter)
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Florida
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59-2417093
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
|
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Incorporation
or Organization)
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Identification
No.)
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1655
Roberts Boulevard, NW, Kennesaw, Georgia 30144
(Address,
including zip code, of registrant's principal executive offices)
CryoLife,
Inc. 2008 Non-Employee Directors Omnibus Stock Plan
(Full
Title of Plan)
Steven
G. Anderson, President, Chief Executive Officer
and
Chairman of the Board of Directors
CryoLife,
Inc.
1655
Roberts Boulevard, NW
Kennesaw,
Georgia 30144
(770)
419-3355
(Name and
address, including zip code, and telephone number, including area
code,
of agent
for service)
Copy
to:
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B.
Joseph Alley, Jr., Esq.
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Jeffrey
W. Burris, Esq., General Counsel
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Arnall
Golden Gregory LLP
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CryoLife,
Inc.
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Suite
2100
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1655
Roberts Boulevard, NW
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171
17th
Street, NW
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Kennesaw,
Georgia 30144
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Atlanta,
Georgia 30363-1031
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(770)
419-3355
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(404)
873-8500
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Indicate
by a check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”,
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer ¨
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Accelerated
filer ý
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Non-accelerated
filer ¨ (Do
not check if a smaller reporting company)
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Smaller
reporting company ¨
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Calculation
of Registration Fee
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Title
of securities
to
be registered
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Amount
to be
Registered(1)
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Proposed
maximum
offering
price
per share
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Proposed
maximum
aggregate
offering
price
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Amount
of
registration
fee(1)
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Common
Stock,
$.01
par value
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300,000
Shares
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$10.715
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$3,214,500
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$126.33
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(1)
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Calculated
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, as follows: with respect to 300,000 shares, based upon the
average of the high and low price of the Registrant's Common Stock on
April 23, 2008 as reported on the New York Stock
Exchange.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of
Certain Documents by Reference.
The following documents are
incorporated by reference in the Registration Statement:
(a) The
Registrant's Annual Report on Form 10-K filed with respect to the Registrant's
fiscal year ended December 31, 2007.
(b) The
Registrant’s Current Reports on Form 8-K filed on February 12, 2008, February
25, 2008, March 28, 2008 and April 21, 2008.
(c) The
description of the Registrant's Common Stock contained in the Registrant's
Registration Statement filed under Section 12 of the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities
Not applicable.
Item
5. Interests of Named Experts and Counsel.
Not applicable.
Item
6. Indemnification of Directors and Officers.
The Registrant is a Florida
corporation. The following summary is qualified in its entirety by
reference to the complete text of the Florida Business Corporation Act (the
"FBCA"), the Registrant's Amended and Restated Articles of Incorporation, and
the Registrant's Amended and Restated Bylaws.
Under Section 607.0850(1) of the FBCA,
a corporation may indemnify any of its directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding (including any appeal thereof) (i) if such person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and (ii) with respect to any
criminal action or proceeding, he or she had no reasonable cause to believe his
or her conduct was unlawful. In actions brought by or in the right of
the corporation, however, Section 607.0850(2) provides that no indemnification
shall be made in respect of any claim, issue or matter as to which the director
or officer shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper. Article X of the Registrant's Amended
and Restated Articles of Incorporation and Article VI of the Registrant's
Amended and Restated 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 in the manner and to the extent contemplated by Section 607.0850
of the FBCA (formerly Section 607.014 of the Florida General Corporation
Act).
II-1
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.
Item
7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
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Exhibit No.
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Exhibit
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4.1
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Amended
and Restated Articles of Incorporation of the Company. (Incorporated by
reference to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 2007).
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4.2
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Amended
and Restated ByLaws of the Company. (Incorporated by reference
to Exhibit 3.4 to the Registrant's Current Report on Form 8-K filed August
1, 2007).
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4.3
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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).
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5*
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Opinion
of Arnall Golden Gregory LLP regarding legality
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23.1*
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Consent
of Arnall Golden Gregory LLP (included as part of Exhibit 5
hereto).
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23.2*
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Consent
of Deloitte & Touche LLP
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99.1*
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CryoLife,
Inc. 2008 Non-Employee Directors Omnibus Stock
Plan
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_______________________
* Filed
herewith.
Item
9. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
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(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;
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(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;
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provided, however,
that paragraph (a)(1)(i) and (a)(1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
II-2
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 6, or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
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.
II-3
SIGNATURES
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CRYOLIFE,
INC.
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By: /s/ Steven G.
Anderson
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Steven
G. Anderson
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President,
Chief Executive Officer and Chairman of the Board of
Directors
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KNOW ALL MEN BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Steven G.
Anderson and Jeffrey W. Burris and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
PRINCIPAL EXECUTIVE,
FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
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Name
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Title
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Date
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| /s/ Steven G. Anderson |
President,
Chief Executive Officer
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April
28, 2008
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Steven
G. Anderson
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and
Chairman of the Board of Directors (Principal Executive
Officer)
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| /s/ D. A. Lee |
Executive
Vice President, Chief
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April
28, 2008
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D.
Ashley Lee
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Operating
Officer and Chief Financial Officer (Principal Financial
Officer)
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| /s/ Amy D. Horton |
Chief
Accounting Officer (Principal
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April
28, 2008
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Amy
D. Horton
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Accounting
Officer)
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| /s/ Thomas F. Ackerman |
Director
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April
28, 2008
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Thomas
F. Ackerman
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||
| /s/ James S. Benson |
Director
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April
21, 2008
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James
S. Benson
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| /s/ Daniel J. Bevevino |
Director
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April
28, 2008
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Daniel
J. Bevevino
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| /s/ John M. Cook |
Director
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April
21, 2008
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John
M. Cook
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II-4
| /s/ Ronald C. Elkins, M.D. |
Director
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April
28, 2008
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Ronald
C. Elkins, M.D.
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| /s/ Ronald D. McCall |
Director
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April
28, 2008
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Ronald
D. McCall
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II-5
EXHIBIT
5
ARNALL
GOLDEN GREGORY LLP
171
17TH
STREET, NW
SUITE
2100
ATLANTA,
GEORGIA 30363-1031
TELEPHONE
(404) 873-8500 – FACSIMILE (404) 873-8501
(404)
873-8500
(404)
873-8501
April 28,
2008
CryoLife,
Inc.
1655
Roberts Boulevard, N.W.
Kennesaw,
Georgia 30144
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Re:
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Registration Statement
on Form S-8
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Ladies
and Gentlemen:
This opinion is rendered in connection
with the proposed issue and sale by CryoLife, Inc., a Florida corporation (the
"Company"), of up to 300,000 shares of the Company's Common Stock, $.01 par
value (the "Shares"), pursuant to stock options, restricted stock and restricted
stock units issued under the CryoLife, Inc. 2008 Non-Employee Directors Omnibus
Stock Plan (the “Plan”) upon the terms and conditions set forth in the
Registration Statement on Form S-8 (the “Registration Statement”) filed by the
Company with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the “Act”) and the prospectus utilized in connection
therewith. We have acted as counsel for the Company in connection
with the issuance and sale of the Shares by the Company.
In rendering the opinion contained
herein, we have relied in part upon examination of the Company’s corporate
records, documents, certificates and other instruments and the examination of
such questions of law as we have considered necessary or appropriate for the
purpose of this opinion. Based upon the foregoing, we are of the
opinion that the Shares have been duly and validly authorized and the Shares
will be legally issued, fully paid and non-assessable, (a) when issued in the
manner contemplated by the terms of the Plan and pursuant to a current
prospectus in conformity with the Act, and (b) upon receipt by the
Company of payment therefor (assuming that such payment at all times exceeds the
par value thereof).
We consent to the filing of this
opinion as an exhibit to the Registration Statement. This consent is
not to be construed as an admission that we are a party whose consent is
required to be filed with the Registration Statement under the provisions of the
Act.
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Sincerely,
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/s/ ARNALL GOLDEN GREGORY
LLP
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ARNALL
GOLDEN GREGORY LLP
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Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement
(relating to 300,000 Shares of Common Stock) of CryoLife, Inc. on Form S-8 of
our reports dated February 21, 2008, relating to the consolidated financial
statements and financial statement schedule of CryoLife, Inc. (which report
expresses an unqualified opinion and includes an explanatory paragraph relating
to the Company’s adoption on October 1, 2005, of Financial Accounting
Standards Board (FASB) Statement No. 123R, Share Based Payment, and the Company’s
adoption on January 1, 2007 of FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes - an
interpretation of FASB Statement No. 109) and the effectiveness of
CryoLife, Inc.'s internal control over financial reporting, appearing in the
Annual Report on Form 10-K of CryoLife, Inc. for the year ended
December 31, 2007.
/s/
Deloitte & Touche LLP
Atlanta,
Georgia
April 28,
2008
Exhibit
99.1
CRYOLIFE,
INC.
2008 NON-EMPLOYEE DIRECTORS OMNIBUS STOCK PLAN
ARTICLE 1
General
This 2008 Non-Employee Directors
Omnibus Stock Plan (the “Plan”) is established to attract, retain and compensate
for service as members of the Board of Directors highly qualified individuals
who are not current employees of CryoLife, Inc (the “Corporation”) and to enable
them to increase their ownership in the Corporation’s common stock. The
Plan provides for the grant of Stock Options, Restricted Stock and Restricted
Stock Units (all as defined herein, and collectively, “Awards”). Awards
may be made pursuant to written agreements at the discretion of the
Board.
Section 1.1 Eligibility. All members of
the Corporation’s Board of Directors who are not current employees of the
Corporation or any of its subsidiaries (“Non-Employee Directors”) are eligible
to participate in this Plan.
Section 1.2 Shares
Available.
(a) Number of Shares Available.
There are reserved for issuance under this Plan 300,000 shares of the
Corporation’s Common Stock, $0.01 par value (“Common Stock”), which may be
authorized but unissued shares, treasury shares, or shares purchased on the open
market or privately. For purposes of applying the limitation in the preceding
sentence and subject to the adjustment and replenishment provisions included in
Sections 1.2(b) and (c) below:
(i) the maximum number of
shares of Common Stock that may be issued pursuant to Stock Options shall be
300,000; and
(ii) the
maximum number of shares of Common Stock that may be issued pursuant to
Restricted Stock Awards and Restricted Stock Unit Awards shall be
300,000.
(b) Recapitalization Adjustment.
In the event of a reorganization, recapitalization, stock split, stock dividend,
combination of shares, merger, consolidation, rights offering, or any other
change in the corporate structure or shares of the Corporation, adjustments in
the number and kind of shares authorized by this Plan, in the number and kind of
shares that may or are required to be issued hereunder pursuant to any type of
award hereunder (including without limitation the maximum numbers set forth in
Section 1.2(a) above), in the number and kind of shares covered by
outstanding Stock Options under this Plan and in the Stock Option price thereof,
and in the number and kind of shares subject to outstanding Restricted Stock
Awards and/or Restricted Stock Unit Awards shall automatically be made if, and
in the same manner as, similar adjustments are made to awards issued under the
Corporation’s incentive plans for management of the Corporation then in
effect.
(c) Replenishment. To the extent
any shares of Common Stock covered by a Stock Option, Restricted
Stock Award or Restricted Stock Unit Award are forfeited by or are not delivered
to a Non-Employee Director or his or her beneficiary because the Stock
Option, Restricted Stock or Restricted Stock Unit is forfeited or canceled,
or the shares of Common Stock are not delivered because they are used to satisfy
any applicable tax withholding obligation, such shares shall not be deemed to
have been delivered for purposes of determining the maximum number of shares of
Common Stock available for delivery with respect to the respective type of award
and with respect to all grants under the Plan.
ARTICLE 2
Stock Option
Awards
Section 2.1 Stock Options. Awards may be made
under this Plan of options to purchase Common Stock (“Stock Options”). No Stock
Options granted pursuant to this Plan may be “Incentive Stock Options” under
Section 422 of the Internal Revenue Code of 1986, as amended. The grant of
a Stock Option entitles the recipient to purchase shares of Common Stock at an
exercise price established by the Board of Directors.
1
Section 2.2 Exercise Price. The exercise
price of each Stock Option granted under this Article 2 shall be
established by the Board of Directors or shall be determined by a method
established by the Board of Directors at the time the Stock Option is granted.
The exercise price shall not be less than 100% of the Fair Market Value of a
share of Common Stock on the date of grant of the Stock Option. For purposes of
determining the “Fair Market Value” of a share of Common Stock as of any date,
the “Fair Market Value” as of that date shall be the last closing price of the
Common Stock on the first business day preceding that date on the New York Stock
Exchange or, if the Common Stock is not listed on the New York Stock Exchange,
on any other exchange or quotation system on which the Common Stock is listed or
quoted. No Stock Option may be “repriced,” as such term is used in rules
established by the New York Stock Exchange.
Section 2.3 Exercise. Subject to the
provisions of this Plan, a Stock Option shall be exercisable in accordance with
such terms and conditions and during such periods as may be established by the
Board of Directors; provided, however, that no Stock Option may be exercised
more than seven years after its grant date and no Stock Option granted hereunder
may vest in excess of 1/3 of the number of shares subject to the Stock Option
per year for the first three years after the grant date.
Section 2.4 Payment of Option Exercise
Price. The payment of the exercise price of a Stock Option granted under
this Article 2 shall be subject to the following:
(a) Subject
to the following provisions of this subsection 2.4, the full exercise price
for shares of Common Stock purchased upon the exercise of any Stock Option shall
be paid at the time of such exercise (except that, in the case of an exercise
arrangement approved by the Board of Directors and described in
paragraph 2.4(c), payment may be made as soon as practicable after the
exercise).
(b) The exercise price
shall be payable in cash or by tendering shares of Common Stock acceptable to
the Board of Directors and valued at Fair Market Value as of the day of
exercise, or in any combination thereof, as determined by the Board of
Directors.
(c) Subject to
compliance with applicable law, the Board of Directors may permit a Stock Option
recipient to elect to pay the exercise price upon the exercise of a Stock Option
by irrevocably authorizing a third party to sell shares of Common Stock (or a
sufficient portion of the shares) acquired upon exercise of the Stock Option and
remit to the Corporation a sufficient portion of the sale proceeds to pay the
entire exercise price resulting from such exercise.
Section 2.5 Settlement of Award. Shares
of Common Stock delivered pursuant to the exercise of a Stock Option shall be
subject to such conditions, restrictions and contingencies as the Board of
Directors may establish in any applicable Option grant agreement. The Board of
Directors, in its discretion, may impose such conditions, restrictions and
contingencies with respect to shares of Common Stock acquired pursuant to the
exercise of a Stock Option as the Board of Directors determines to be
desirable.
Section 2.6 Nontransferability of Stock Options. Except as set forth
below, no Stock Option granted under this Plan is transferable other than by
will or the laws of descent and distribution. Except as set forth below, during
the grantee’s lifetime, a Stock Option may be exercised only by the grantee or
the grantee’s guardian or legal representative. Notwithstanding the
foregoing, however, the grantee may transfer the Stock Option for no
consideration to or for the benefit of the grantee’s Immediate Family, defined
below (including, without limitation, to a trust for the benefit of the
grantee’s Immediate Family or to a partnership or limited liability company for
one or more members of the grantee’s Immediate Family or to an IRA for the
benefit of one or more members of his Immediate Family), subject to such limits
as the Board may establish, and the transferee shall remain subject to all the
terms and conditions applicable to such Stock Option prior to such transfer. The
foregoing right to transfer the Stock Option shall apply to the right to consent
to amendments to the grant agreement and shall also apply to the right to
transfer ancillary rights associated with the Stock Option. The term “Immediate
Family” shall mean the grantee’s spouse, parents, children, stepchildren,
adoptive relationships, sisters, brothers and grandchildren (and, for this
purpose, shall also include the grantee).
2
ARTICLE 3
Restricted Stock and Restricted Stock
Units
Section 3.1 Grant of Restricted Stock or
Restricted Stock Units. Subject to the terms and provisions of the Plan,
the Board of Directors, at any time and from time to time, may grant shares of
Restricted Stock and/or Restricted Stock Units, as such terms are defined below,
to participants in such amounts and upon such terms and conditions as the Board
shall determine; provided, however, that no grant of Restricted Stock or of any
Restricted Stock Unit shall in any event vest sooner than one year following the
date of grant. “Restricted Stock” means an award of Common Stock subject to
forfeiture based on the passage of time, the achievement of performance goals,
and/or upon the occurrence of other events as determined by the Board in its
discretion, granted subject to the terms of this Plan. “Restricted Stock Unit”
means an award denominated in units whose value is derived from Common Stock and
which is subject to forfeiture based on the passage of time, the achievement of
performance goals, and/or upon the occurrence of other events as determined by
the Board in its discretion, granted subject to the terms of this
Plan.
Section 3.2 Other
Restrictions.
(a) The
Board shall impose, in an Award Agreement at the time of grant or any time
thereafter, such other conditions and/or restrictions on any shares of
Restricted Stock or Restricted Stock Units granted pursuant to this Plan as it
may deem advisable including, without limitation, a requirement that
participants pay a stipulated purchase price for each share of Restricted Stock
or each Restricted Stock Unit, that specific performance goals be obtained, the
imposition of time-based restrictions on vesting following the attainment of the
performance goals, time-based restrictions, restrictions under applicable laws
or under the requirements of any stock exchange or market upon which such shares
are listed or traded, or holding requirements or sale restrictions placed on the
shares by the Corporation upon vesting of such Restricted Stock or Restricted
Stock Units. Except as otherwise provided in this Article 3 or the
applicable award agreement, shares of Restricted Stock shall become freely
transferable by the participant, subject to compliance with applicable laws,
after all conditions and restrictions applicable to such shares have been
satisfied or lapse.
(b)
Common Stock subject to a Restricted Stock Award may not be sold, assigned,
transferred, pledged or otherwise encumbered prior to the date it is vested, and
except as otherwise specified by the Board, Restricted Stock Units may not be
transferred.
(c) Each certificate, if any,
issued in respect of Common Stock pursuant to a Restricted Stock Award shall be
registered in the name of the Non-Employee Director and deposited with the
Corporation until such time as all restrictions have lapsed.
Section 3.3 Certificate Legend. If
certificated stock is issued, in addition to any other legends placed on the
certificates, each certificate representing shares of Restricted Stock
granted pursuant to the Plan may bear a legend such as the
following:
“The sale or other transfer of the
shares of stock represented by this certificate, whether voluntary, involuntary,
or by operation of law, is subject to certain restrictions on transfer as set
forth in the CryoLife, Inc. 2008 Non-Employee Directors Omnibus Stock Plan, and
in the associated Award Agreement. A copy of the Plan and such Award Agreement
may be obtained from CryoLife.”
Section 3.4
Voting
Rights. Except as otherwise determined by the Board or required by
law, participants in whose names shares of Restricted Stock granted hereunder
shall be issued, shall be granted the right to exercise full voting rights with
respect to those shares during the period of restriction. A participant shall
have no voting rights with respect to any Restricted Stock Units granted
hereunder.
Section 3.5 Dividends and Other
Distributions. During the period of restriction, participants holding
shares of Restricted Stock or Restricted Stock Units granted hereunder may, if
the Board so determines or as otherwise required by law, be credited with
dividends paid with respect to the underlying shares or dividend equivalents
while they are so held in a manner determined by the Board in its sole
discretion. The Board may apply any restrictions to the dividends or dividend
equivalents that the Board deems appropriate. The Board, in its sole discretion,
may determine the form of payment of dividends or dividend equivalents,
including cash, unrestricted Common Stock, Restricted Stock, or Restricted Stock
Units.
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Section 3.6 Payment in Consideration of
Restricted Stock Units. When and if Restricted Stock Units become
payable, a participant having received the grant of such units shall be entitled
to receive payment from the Corporation in cash, shares of Common Stock of
equivalent value (based on the Fair Market Value thereof), in some combination
thereof, or in any other form determined by the Board in its sole discretion.
The Board’s determination regarding the form of payout shall be set forth or
reserved for later determination in the Award Agreement pertaining to the grant
of the Restricted Stock Unit.
ARTICLE 4
Miscellaneous
Section 4.1 Cessation of Service. Except
as set forth below and unless otherwise determined by the Board, upon cessation
of service as a Non-Employee Director (for reasons other than death), all Stock
Options, whether or not exercisable at the date of cessation of service,
Restricted Stock and Restricted Stock Units shall be forfeited by the grantee;
provided, however, that, unless otherwise determined by the Board, if any
Non-Employee Director serves out his/her term but does not stand for re-election
at the end thereof,or otherwise retires in good standing, as determined by the
Board in its sole discretion, such grantee’s Options, Restricted Stock and
Restricted Stock Units shall remain in effect, vest, become exercisable and
expire as if the grantee had remained a Non-Employee Director of the
Corporation.
Section 4.2 Death. Upon the death of a
Non-Employee Director, all unvested Stock Options held by him or her will vest
immediately and may be exercised by his or her estate, or by the person to whom
such right devolves from the Non-Employee Director by reason of his or her
death, at any time within three years after the date of the Non-Employee
Director’s death, but in no event later than the original termination date of
the Stock Option. In no event may a Stock Option be exercised after three years
following the holder’s death. In addition, all Restricted Stock and Restricted
Stock Units shall vest upon the Non-Employee Director’s
death.
Section 4.3 Administration. This Plan
shall be administered by the Board of Directors of the Corporation. This Plan
may be terminated by the Board of Directors as they deem advisable. The Board
may delegate its authority hereunder to the Non-Employee Directors, or to any
two or more thereof.
Section 4.4 Amendments. This Plan
may be amended by the Board of Directors at any time, except that the following
actions may not be taken without stockholder approval:
(i) any
increase in the number of shares that may be issued under this Plan (except by
certain adjustments provided for under this Plan);
(ii)
any change in the requirements of Section 2.2 regarding the exercise price
of Stock Options; or
(iii) any
repricing or cancellation and regrant of any Stock Option or, if applicable,
other Award at a lower exercise, base or purchase price, whether in the form of
an amendment, cancellation or replacement grant, or a cash-out of underwater
options or any action that provides for Awards that contain a so-called “reload”
feature under which additional Stock Options or other Awards are granted
automatically to the grantee upon exercise of the original Stock Option or other
Award;
(iv) any
other amendment to this Plan that would require approval of the Corporation’s
stockholders under applicable law, regulation or rule or stock exchange listing
requirement.
No
amendment may revoke or alter in a manner unfavorable to the grantees any Stock
Options, Restricted Stock or Restricted Stock Units then
outstanding.
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Section 4.5 Term. No Stock Option,
Restricted Stock or Restricted Stock Unit may be issued under this Plan after
May 1, 2013, but Stock Options granted prior to that date shall continue to
become exercisable and may be exercised according to their
terms. Restricted Stock and Restricted Stock Units granted prior to May 1,
2013 shall continue to vest in accordance with their terms and dividend
equivalents awarded prior to May 1, 2013 may be paid in accordance with the
terms thereof.
Section 4.6 Uncertificated
Stock. Nothing contained in the Plan shall prohibit the issuance of
Stock on an uncertificated basis, to the extent allowed by the Corporation’s
Certificate of Incorporation and Bylaws, by applicable law and by the applicable
rules of any stock exchange.
Section 4.7 No Other Rights. Except as
provided in this Plan, no Non-Employee Director shall have any claim or right to
be granted or issued a Stock Option, Restricted Stock Award or Restricted
Stock Unit Award under this Plan. Neither this Plan nor any actions hereunder
shall be construed as giving any Director any right to be retained in the
service of the Corporation.
Section 4.8 Prior Plan. This Plan
supersedes the Corporation’s 2004 Non-Employee Directors Stock Option Plan
(the “2004 Directors Plan”), which was terminated on May 2, 2007. Options
granted under the 2004 Directors Plan shall continue to be subject to the
provisions thereof and shall continue to become exercisable and may be
exercised according to their terms.
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