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FORM
8-K
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Florida
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1-13165
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59-2417093
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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The
initial term of the Agreement ends September 1, 2011 and renews on
September 1, 2011 and every three-year anniversary thereafter, for an
additional three-year term, unless the Company gives notice to Mr. Lee at
least thirty days prior to the end of the current term that the Agreement
shall not be extended.
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The
severance payment is an amount equal to two times the aggregate of Mr.
Lee’s base salary as of the date of termination and bonus compensation for
the year in which the termination of employment occurs (or if the bonus
for that year has not yet been awarded, the most recently awarded bonus
compensation).
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Change
of control means a change in the ownership of the Company, a change in the
effective control of the Company or a change in the ownership of a
substantial portion of the assets of the Company, as further defined
within the Agreement.
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The
Agreement is not an employment agreement and both parties acknowledge that
Mr. Lee’s employment is “at will.”
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Mr.
Lee agrees not to solicit any actual or prospective customers of CryoLife
with whom he has had contact for a competing business or to solicit
employees of CryoLife to leave the Company and join a competing business
during the term of the Agreement and for a period of one year following
the termination of the Agreement.
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The
Company is not required to make the severance payment and Mr. Lee is
required to repay any portion of the severance payment already received if
he solicits customers or employees of CryoLife during the term of the
Agreement and for a period of one year following the termination of the
Agreement.
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Article
I was amended to clarify that the Company will maintain a registered
office in the state of Florida, as required by applicable law, and that
the Company’s registered agent may change the registered office when
necessary. Previously, the Bylaws did not address the Company’s
registered office.
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Article
II, Section 3 was amended to resolve an ambiguity by clarifying that if no
place has been expressly designated as the location for a shareholder
meeting, the meeting shall be held at the Company’s principal executive
offices.
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Article
II, Section 4 was amended to allow the Company to distribute notices of
meetings to shareholders by any means allowable under Florida
law. Previously, the Bylaws required notices to be delivered
personally or by first class mail.
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Article
II, Section 5, which facially allowed shareholders to take action where
holders of 4/5ths of the outstanding shares signed a written consent on
the record of the meeting, was removed as no longer applicable under
Florida law.
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A
new Article II, Section 5 was adopted to clarify the circumstances under
which shareholders may waive notice of a meeting, and under which
attendance at a meeting constitutes a waiver of
notice.
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Article
II, Section 6 was amended to expand the list of locations where the
Company can maintain the list of shareholders entitled to vote at a given
meeting. Previously the list was required to be made available
at the Company’s principal executive offices. After the
revision, the Company may choose to have the list instead maintained at
the office of the transfer agent or at any location identified in the
notice of the meeting.
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Article
II, Section 7 was amended to clarify quorum requirements, the proper
procedure for adjournment and the calling of a new meeting if a quorum is
not present.
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Article
II, Section 8 was amended to remove the restriction on voting trust
agreements and to move the provisions governing the setting of record
dates to Article VIII.
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Article
II, Section 9 was amended to reflect changes in Florida law, which among
other things allow for electronic transmission of
proxies.
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Article
II, Section 10 was added in order to provide general guidelines for the
conduct of shareholder meetings.
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Article
II, Section 11 was added in order to allow the Board to adopt guidelines
and procedures for shareholders and proxy holders not physically present
at a shareholder meeting to participate in such meeting and to allow the
Board to adopt guidelines and procedures for conducting a shareholder
meeting solely by means of remote
communication.
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Article
III, Section 6 was amended so as to require that notice of any special
meetings of the Board be given two (2) days prior to such meeting, instead
of three (3), and to clarify that such notice can be communicated by any
means permissible by law.
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Article
III, Section 8 was added in order to provide general guidelines for the
conduct and adjournment of Board meetings, and to provide for the
appointment of a Presiding Director. New Section 8 also
provides guidelines for remote participation in such meetings and
supersedes prior Section 13 regarding telephonic meetings, which has been
removed. Previously, the Bylaws did not provide any guidelines
for the conduct of Board meetings.
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Article
III, Section 10 (formerly Section 9) was amended to address the procedures
for filling vacancies on the Board when the vacancy results from expansion
of the Board or when an appointment occurs in advance of the
vacancy.
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Article
V, Section 4 was amended to clarify procedures applicable to calling and
holding committee meetings.
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Article
IV, Section 1 was amended to provide that the Board shall designate from
among the officers it appoints which officers constitute executive
officers responsible for policy-making
functions.
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Article
IV, Section 3 was amended to clarify that as provided by law, the Board
can remove any officer, regardless of whether he or she was appointed by
the Board, and that an officer can be removed with or without
cause.
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Article
IV, Section 5 was amended to clarify that the Presiding Director is not an
officer of the Company, and that the Board retains flexibility to
authorize an officer to prescribe the duties of other
officers.
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Article
VI was replaced in its entirety. New Article VI more closely
tracks current Florida law and clarifies a number of points in light of
recent legal developments regarding the interpretation of indemnification
bylaws. Previous Article VI provided that the Company was
required to indemnify any officer or director (or former officer or
director, his personal representatives, devisees or heirs) whenever a
majority of the entire Board of Directors determined, in their judgment,
that certain criteria set forth in former Section 607.14, Florida
Statutes, were met. Under the new provisions, indemnification
is available only if the person to be indemnified acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed to, the
best interest of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. The corporation will have no obligation to
provide indemnification until a determination has been made that the
appropriate standard of conduct has been met and that indemnification is
not prohibited by relevant law.
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Other
salient features of new Article VI
include:
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There
is provision for mandatory advancement of expenses incurred by a director
or officer in defending a proceeding if specified standards are met (the
prior provision did not provide for advancement of
expenses)
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Rights
continue as to a person who has ceased to be a director or
officer
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Rights
under this provision are binding contract rights which are binding on the
Company with respect to any conduct that takes place while the Bylaw
remains in place, even if the Bylaw is later
amended
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The
Company will not be obligated to indemnify directors and officers for
proceedings initiated by them except for certain compulsory counterclaims
and suits to recover rights to indemnification or advancement under
Article VI
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The
Company will have no obligation to indemnify an officer or director for
any settlement effected without its consent, nor for any judgment awarded
in a proceeding in which the Company was not given an appropriate
opportunity to participate.
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Article
VII was amended to refine the requirements and procedures related to the
issuance of uncertificated shares. Among other things, these
changes clarify that a holder of uncertificated shares is not entitled to
demand a certificate from the Company, and that stock certificates may be
in any form approved by the Board of Directors and allowed by
law.
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Article
VIII was amended to more closely conform to Florida law. After
the amendment, the record date for a shareholder meeting or other action
generally cannot be more than 70 days prior to the meeting or other
action, and it may be set as close to the date of the meeting or other
action as the Board may find desirable. Previously, the Bylaws
provided that the record date could not be more than 60 days prior to the
meeting or other action, and had to be at least 10 days prior to the
meeting or other action.
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New
Article VIII, Section 2 clarifies that as set forth by relevant law, the
record date for determining shareholders entitled to demand a special
meeting will be the close of business on the date the first shareholder
delivers his or her demand to the
corporation.
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Article
X was revised to clarify that the Board has flexibility to revise the
fiscal year if it so chooses.
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A
provision has been added to Article XII to provide that unless otherwise
directed by the Board of Directors, the Chief Executive Officer shall be
responsible for voting any securities in other corporations held by the
Company.
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Article
XIII was amended to more closely conform the language to the requirements
of Florida law.
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Article
XIV was amended to clarify the advance notice requirements for shareholder
proposals relating to nomination for and election of directors and to
clearly differentiate the procedures and requirements for such proposals
from other business to be transacted at shareholder
meetings. Article XIV, as amended, provides
that:
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shareholders
must now disclose certain underlying motives that may give rise to a
director nomination, such as any material monetary agreements,
arrangements or understandings between a stockholder and his or her
nominee.
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with
respect to shareholder proposals, shareholders must now provide the
Company with certain required information related to not only themselves
but also with respect to specified
affiliates.
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nominees
for election or reelection as director must now complete a questionnaire
with respect to the background and qualification of such person and a
written representation and agreement disclosing certain arrangements that
may prevent the candidate from acting in the best interests of the
Company.
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the
advance notice provisions of the Bylaws now clarify that they are
applicable regardless of whether the shareholder making the proposal
intends to utilize Rule 14a-8, promulgated by the SEC pursuant to the
Securities Exchange Act of 1934, as amended, to access the Company’s proxy
statement.
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New
Article XVI provides a set of emergency bylaws that will become
temporarily effective in the event the Board cannot be assembled due to a
catastrophic event. The emergency bylaws will suspend certain
of the regularly effective bylaws during the pendency of any such
emergency. For example, during an emergency, any officer or
director will be able to call a meeting of the board of directors, and
notice and quorum requirements are greatly relaxed. The
emergency bylaws also allow for the appointment of temporary directors in
the event that no directors are available to call or attend a meeting of
directors. Any director, officer or employee taking action
pursuant to the emergency bylaws will be shielded from liability for any
conduct other than willful
misconduct.
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Exhibit Number
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Description
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3.1
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Bylaws
of CryoLife, Inc., as amended and restated as of October
22, 2008
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10.1
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Change
of Control Agreement with D. Ashley
Lee
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CRYOLIFE,
INC.
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Date: October
28, 2008
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By:
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/s/ D. A.
Lee
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Name:
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D.
Ashley Lee
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Title:
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Executive
Vice President, Chief
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Operating
Officer and Chief
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Financial
Officer
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