EXHIBIT 99.2
DIRECTORS STOCK OPTION AGREEMENT AND GRANT
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of the ___ day of
________, (the "Grant Date"), by, between and among CYROLIFE, INC., a Florida
Corporation (the "Corporation"), and _______________________________, a member
of the Board of Directors of the Corporation (a "Director") and an individual
residing in __________________________ (the "Optionee").
WITNESSETH:
WHEREAS, the Corporation wishes to grant to the Optionee an option (the
"Option") to purchase the number of shares of Common Stock set forth in this
Agreement and under the terms and conditions set forth herein including the
provision that the Option is not an incentive stock option under Section 422 of
the Internal Revenue Code of 1986, as amended ("Code");
NOW THEREFORE, in consideration of the foregoing, the mutual promises and
covenants contained herein and the mutual benefit to be derived therefrom and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Grant of Option: Subject to the terms and conditions set forth herein,
the Corporation hereby grants to the Optionee the option to purchase, in the
aggregate, up to ______ shares of the Common Stock (the "Shares") which shall
consist of treasury shares of Common Stock. The Option shall be deemed granted
by the Corporation to the Optionee as of the Grant Date. This Option is not
granted pursuant to the CryoLife, Inc. Amended and Restated Non-Employees
Directors Plan (the "Plan").
2. Option Price: The price of the Option shall be the last closing price of
the Corporation's Common Stock on the New York Stock Exchange on the day of the
grant of the Option. The Option exercise price is the sum of $_____ per share
(the "Option Exercise Price").
3. Option Period: This Option shall vest and become exercisable on the
Option's Grant Date. This Option may be exercised at any time after its Grant
Date. Notwithstanding the foregoing, no Option may be exercised later than five
years after the date of grant thereof.
4. Termination of Option: Except as herein otherwise stated, the Option, to
the extent not previously exercised, shall terminate sixty (60) months following
the Grant Date.
5. Cessation of Service: If a grantee leaves the Board of Directors for any
reason, including without limitation resignation or death, such grantee's
Options shall remain in effect and exercisable, and shall expire as if the
grantee had remained a Non-Employee Director of the Company. Upon the death of a
Non-Employee Director, his or her Options shall be exercisable by his/her legal
representatives or heirs, but in no event may the Options be exercised beyond
the last date which they could have been exercised had the Non-Employee Director
not died.
6. Delivery of Notice: The Optionee may exercise the Option only bye
delivering written notice to the Corporation of his intent to exercise the
Option (the "Notice'). The Notice shall be delivered to the Corporation at its
principal office at:
0000 Xxxxxxx Xxxx., X.X.
Xxxxxxxx, Xxxxxxx 00000
or to such other address as may be designated by the Corporation. The Notice
shall specify the number of Shares to be purchased in accordance with this
Agreement and shall include payment in full of the Option Price.
7. Payment: The Option Exercise Price shall be paid in cash in U.S. Dollars
at the time the Option is exercised or in shares of Common Stock of the Company
having an aggregate value equal to the Option Exercise Price. If the Option
Exercise Price is paid by transfer of shares of Common Stock of the Corporation
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then the value of such shares will be determined by the last closing price of
the Corporation's Common Stock on the New York Stock Exchange prior to the
exercise of the options. The Option Exercise Price may be paid by a combination
of cash and Common Stock. Subject to approval by the Board, the phrase "shares
of stock of the Company," may include shares which the director is entitled to
purchase by reason of a stock option grant, sometimes called "option shares."
8. Delivery of Shares to Optionee: Upon the Optionee's proper exercise of
the Option, the Corporation shall deliver to the Optionee one or more
certificates evidencing the number of Shares purchased pursuant to the exercise
of the Option and such Shares shall be fully paid and nonassessable.
9. Transferability: Except as otherwise provided in this paragraph 9, the
Options granted under this Plan are not transferable other than as designated by
the grantee by will or by the laws of the descent and distribution, and during
the grantee's life, may be exercised only by the grantee. However, the grantee
may transfer the Option for no consideration to or for the benefit of the
grantee's Immediate Family (including, without limitation, to a trust for the
benefit of the grantee's Immediate Family or to a partnership or limited
liability company for one or more members of the grantee's Immediate Family or
to an XXX for the benefit of one or more members of his Immediate Family),
subject to such limits as the Board may establish, and the transferee shall
remain subject to all the terms and conditions applicable to such Option prior
to such transfer. The foregoing right to transfer the Option shall apply to the
right to consent to amendments to the grant agreement and shall also apply to
the right to transfer ancillary rights associated with the Option. The term
"Immediate Family" shall mean the grantee's spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers and grandchildren (and,
for this purpose, shall also include the grantee).
10. Optionee Not a Shareholder: The Optionee shall not be deemed, by reason
of this option agreement, for any purposes to be a shareholder of the
Corporation with respect to any of the shares of the capital stock of the
Corporation or with respect to any of the Shares, except to the extent that the
Option has been exercised, in whole or in part, and a stock certificate
representing Shares has been issued to the Optionee. Notwithstanding this
provision, it is understood and agreed that the Corporation and the Optionee
shall make any required disclosure of the "beneficial ownership" of Shares which
may be received upon a future exercise of the Option.
11. No Restrictions on the Corporation: The grant of the Option shall not
affect in any way the right or power of the Corporation or its shareholders to
make or authorize any or all adjustments, recapitalizations, reorganizations, or
any other changes in the Corporation's capital structure or its business, or any
merger or consolidation of the Corporation, or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock, or
the rights thereof, or dissolution or liquidation of the Corporation, or any
sale or transfer of all or any part of the assets or business of the
Corporation, or any other corporate act or proceeding, whether of a similar
character or otherwise.
12. Reclassification, Consolidation or Merger: The number of Option Shares
may be adjusted by the Board of Directors if certain events such as merger,
reorganization, consolidation, recapitalization, stock dividends, stock splits,
or other changes in the Company's corporate structure affecting its Common Stock
occur. No adjustments or substitution provided for in this Subsection, however,
shall require the Corporation in any Agreement to sell a fractional share, and
the total substitution or adjustment herein is and shall be limited accordingly.
13. Optionee's Representations and Warranties: By execution of this
Agreement, Optionee represents and warrants to the Company as follows:
A. Investment Representations and Warranties: The Optionee warrants and
represents to the Corporation that he is acquiring the Option and, upon exercise
of the Option, in whole or in part, the Shares for his own account for
investment purposes and not with a view to distribution, as defined in the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
The Optionee further agrees that he will not sell, assign, transfer or pledge
the Option or any of the Shares purchased by him pursuant to the exercise of the
Option, unless and until either (i) a registration statement under the
Securities Act covering the Shares becomes effective or (ii) the Corporation has
received an opinion of counsel in form and substance satisfactory to the
Corporation and its counsel that such sale, transfer, assignment or pledge may
be accomplished without registration under the Securities Act.
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B. Compliance with Withholding Rules: The Corporation shall have the right to
adopt and apply rules governing the exercise of the Option and the issuance of
Shares pursuant thereto which will ensure that the Corporation will be able to
comply with the applicable provisions of any federal, state or local laws
relating to the withholding of taxes.
C. No Tax Advice: The Optionee understands that neither the Corporation nor any
of its affiliates, has given any advice regarding the federal income tax
consequences of (i) the Agreement, or (ii) the grant of the Option, or (iii) the
acquisition of the Shares upon exercise of the Option. The Optionee acknowledges
that he has been encouraged to seek independent advice regarding the grant and
the exercise of the Option herein.
14. Legends: The Corporation shall have the discretion to require that the
certificates representing the Shares shall bear such legends as are necessary to
ensure the enforceability of the conditions and limitations set forth herein.
15. Binding Effect: This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors-in-interest. All
parties bound by this Agreement shall take any and all actions necessary or
appropriate to effectuate the purposes and provisions hereof.
16. Definition of "Affiliate": The term "affiliate" whenever used in this
Agreement, shall mean a person that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with the
Corporation.
17. Amendments and Waivers: Except as otherwise provided herein, no change
or modification of this Agreement shall be valid unless the same is in writing
and signed by all the parties hereto. No waiver of any provision of this
Agreement shall be valid unless in writing and signed by the person against whom
it is sought to be enforced. The failure of any party at any time to insist upon
strict performance of any condition, promise, agreement or understanding set
forth herein shall not be construed as a waiver or relinquishment of the right
to insist upon strict performance of the same condition, promise, agreement or
understanding at a future time.
18. Complete Agreement: This Agreement constitutes and sets forth all of
the final and complete promises, agreements, conditions, understandings,
warranties and representations among the parties hereto with respect to the
Option and the Shares, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, among them with respect to the matters set forth herein other than as
set forth herein as it may be amended from time to time.
19. Extension of Time to Perform: Whenever the time for the performance of
any action or condition contained in this Agreement falls on a Saturday, Sunday
or legal holiday, such time shall be extended to the next business date.
20. Captions and Pronouns: The captions contained in this Agreement are for
convenience of reference only and shall not in any way modify or limit the
meaning or interpretation of this Agreement. All terms and words used in this
Agreement, regardless of the number and gender in which they are used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the context or sense of this
Agreement or any section, paragraph or clause herein may require, as if such
words had been fully and properly written in the appropriate number and gender.
21. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
22. Counterparts: Any number of counterparts of this Agreement may be
signed and delivered, and each shall be considered an original and together they
shall constitute one agreement.
23. Severability: This Agreement shall not be severable in any way, but if
any provision should be held to be invalid, the invalidity shall not effect the
validity of the remainder of this Agreement.
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24. Restricted Securities: Optionee recognizes and understands that this
option and the Option Shares have not been and may not be in the future
registered under the Securities Act of 1933, as amended (the "Act"), the Georgia
Securities Act of 1973, as amended (the "Georgia Act"), or any other state
securities law. Any transfer of the option (if otherwise permitted hereunder,
and once exercised, the Option Shares) will not be recognized by the Corporation
unless such transfer is registered under the Act, the Georgia Act, and any other
applicable state securities laws or effected pursuant to an exemption from such
registration which may then be available. Any share certificates representing
the Option Shares may be stamped with legends restricting transfer thereof in
accordance with the Corporation's policy with respect to unregistered shares of
its Common Stock issued as a result of exercise of options. The Corporation may
make a notation in its stock transfer records of the aforementioned restrictions
on transfers and legends. Optionee recognizes and understands that the Option
Shares may be restricted securities within the meaning of Rule 144 promulgated
under the Act; that the exemption from registration under Rule 144 may not be
available under certain circumstances and that Optionee's opportunity to utilize
such Rule 144 to sell the Option Shares may be limited or denied. The
Corporation shall be under no obligation to maintain or promote a public trading
market for the class of shares for which the option is granted or to make
provision for adequate information concerning the Corporation to be available to
the public as contemplated under Rule 144. The Corporation will be under no
obligation to recognize any transfer or sale of any Option Shares unless the
terms and conditions of Rule 144 are complied with by the Optionee. By
acceptance hereof, Optionee agrees that no permitted disposition of this option
or any Option Shares shall be made unless and until (i) there is then in effect
a registration statement under the Act, the Georgia Act, and applicable state
securities laws covering such proposed disposition and such disposition is made
in accordance with such registration statement, or (ii) Optionee shall have
notified the Corporation of a proposed disposition and shall have furnished to
the Corporation a detailed statement of the circumstances surrounding such
disposition, together with an opinion of counsel acceptable in form and
substance to the Corporation that such disposition will not require registration
of the shares so disposed under the Act, the Georgia Act, and any applicable
state securities laws. The Corporation shall be under no obligation to permit
such transfer or disposition on its stock transfer books unless counsel for the
Corporation shall concur as to such matters.
25. APPLICABLE TAXES: No later than the date as of which an amount first
becomes includable in the gross income of the Optionee for Federal income tax
purposes with respect to the exercise of the Option, the Optionee shall pay to
the Corporation, or make arrangements satisfactory to the Corporation regarding
the payment of, any Federal, state, or local taxes of any kind required by law
to be withheld with respect to such amount. The obligations of the Corporation
under this Agreement shall be conditional upon such payment or arrangements and
the Corporation shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to the Optionee.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed by its duly authorized officers and the Optionee has executed this
Agreement as of the date and year first above written.
(SEAL) THE CORPORATION:
CRYOLIFE, INC.
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Attest:
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Secretary for Corporation
OPTIONEE:
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(Print name of Optionee)
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