Attached files
file | filename |
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8-K - FORM 8-K - Cardiogenesis Corp /CA | a59115e8vk.htm |
EX-2.1 - EX-2.1 - Cardiogenesis Corp /CA | a59115exv2w1.htm |
EX-4.1 - EX-4.1 - Cardiogenesis Corp /CA | a59115exv4w1.htm |
EX-99.1 - EX-99.1 - Cardiogenesis Corp /CA | a59115exv99w1.htm |
Exhibit 10.1
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this Agreement), is entered into as of March 28, 2011, by and among
CryoLife, Inc., a Florida corporation (Parent), and the executive officers and/or directors of
Cardiogenesis Corporation, a California corporation (the Company), listed on Schedule A hereto
(each, a Stockholder and, collectively, the Stockholders).
RECITALS
WHEREAS, concurrently herewith, Parent, CL Falcon, Inc., a Florida corporation and a wholly
owned subsidiary of Parent (Merger Sub), and the Company are entering into an Agreement and Plan
of Merger (the Merger Agreement) (capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement), which provides for, among other
things, a tender offer (as such offer may be amended from time to time in a manner not prohibited
by Section 1.1(b) of the Merger Agreement, the Offer) to be made by Merger Sub of cash for all of
the issued and outstanding shares of common stock, no par value per share, of the Company (the
Shares), followed by the merger of Merger Sub with and into the Company, with the Company
continuing as the surviving corporation in the merger (the Merger), all on the terms and subject
to the terms and conditions set forth in the Merger Agreement;
WHEREAS, each Stockholder is the record or beneficial owner (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of Shares as set forth on Schedule A
hereto (with respect to each Stockholder, the Owned Shares; the Owned Shares and any additional
Shares or other voting securities of the Company of which such Stockholder acquires record and
beneficial ownership after the date hereof, including, without limitation, by purchase, as a result
of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or
change of such shares, or upon exercise or conversion of any securities, such Stockholders
Covered Shares);
WHEREAS, in addition to being a record or beneficial owner of Owned Shares, each Stockholder
is a member of the Board of Directors of the Company and/or an executive officer of the Company;
WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger Agreement and to
proceed with the transactions contemplated thereby, including the Merger, Parent and the
Stockholders are entering into this Agreement; and
WHEREAS, the Stockholders acknowledge that Parent and Merger Sub are entering into the Merger
Agreement in reliance on the representations, warranties, covenants and other agreements of the
Stockholders set forth in this Agreement and would not enter into the Merger Agreement if any
Stockholder did not enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, Parent and the Stockholders hereby
agree as follows:
1. Agreement to Tender.
(a) Prior to the Termination Date (as defined herein), if requested in writing by Parent, but
in no event prior to such written request, each Stockholder hereby severally agrees to tender, or
cause to be tendered, pursuant to and in accordance with the terms of the Offer, such Stockholders
Covered Shares (other than unexercised options, warrants, and other rights to acquire Shares and
other than any Shares as to which the Stockholder does not have the power to dispose of or direct
the disposition of such Shares, or
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has such power only in a fiduciary capacity for the benefit of Persons other than those who
are parties to this Agreement), and agrees that it will not withdraw or permit the withdrawal of
such Shares from the Offer. Within three (3) Business Days after receipt of the written request of
Parent, but in no event prior to receipt of such written request, each Stockholder will: (i)
deliver to the Exchange Agent designated in the Offer (A) a properly completed letter of election
and transmittal with respect to such Stockholders Covered Shares complying with the terms of the
Offer, (B) if and to the extent such Covered Shares are held in certificated form, the certificates
representing the Covered Shares, and (C) all other documents or instruments required to be
delivered pursuant to the terms of the Offer; and/or (ii) instruct its broker or such other Person
who is the holder of any of such Stockholders Covered Shares to promptly tender such Shares in the
Offer pursuant to and in accordance with the terms and conditions of the Offer.
(b) Each Stockholder acknowledges and agrees that Merger Subs obligation to accept for
payment Shares tendered in the Offer, including any Shares tendered by any Stockholder, is subject
to the terms and conditions of the Merger Agreement and the Offer.
2. Agreement to Vote.
(a) Prior to the Termination Date and regardless of whether such Stockholder tenders any
Covered Shares pursuant to Section 1, each Stockholder irrevocably and unconditionally agrees that
it shall at any meeting of the stockholders of the Company (whether annual or special and whether
or not an adjourned or postponed meeting), however called, or in connection with any written
consent of stockholders of the Company (x) when a meeting is held, appear at such meeting or
otherwise cause such Stockholders Covered Shares to be counted as present thereat for the purpose
of establishing a quorum, and respond to each request by the Company for written consent, if any,
and (y) vote (or consent), or cause to be voted at such meeting (or validly execute and return and
cause such consent to be granted with respect to), all of such Stockholders Covered Shares (i) in
favor of the Merger, the execution and delivery by the Company of the Merger Agreement, adoption
and approval of the Merger Agreement and the terms thereof and any other matters necessary for
consummation of the Merger and the other transactions contemplated in the Merger Agreement (whether
or not recommended by the Company Board), and (ii) against (A) any Acquisition Proposal, (B) any
proposal for any recapitalization, reorganization, liquidation, dissolution, amalgamation, merger,
sale of assets or other business combination between the Company and any other Person (other than
the Merger), (C) any other action that could reasonably be expected to impede, interfere with,
delay, postpone or adversely affect the Merger or any of the transactions contemplated by the
Merger Agreement or this Agreement or any transaction that results in a breach in any material
respect of any covenant, representation or warranty or other obligation or agreement of the Company
or any of its Subsidiaries under the Merger Agreement, and (D) any change in the present
capitalization or dividend policy of the Company or any amendment or other change to the Companys
certificate of incorporation or bylaws, except if approved by Parent.
(b) Prior to the Termination Date and at any time after the Acceptance Date, each Stockholder
irrevocably and unconditionally agrees that it shall at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed meeting), however
called, or in connection with any written consent of stockholders of the Company (x) when a meeting
is held, appear at such meeting or otherwise cause such Stockholders Covered Shares to be counted
as present thereat for the purpose of establishing a quorum, and respond to each request by the
Company for written consent, if any, and (y) vote (or consent), or cause to be voted at such
meeting (or validly execute and return and cause such consent to be granted with respect to), all
of such Stockholders Covered Shares (i) in favor of all necessary and desirable actions to cause
the election (and maintenance) of the Parent designees to the Companys Board of Directors (the
Parent Directors) pursuant to Section 1.4 of the Merger Agreement, and (ii) against, unless
requested by Parent, the removal of any of the Parent Directors.
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3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PARENT, THE EXECUTIVE OFFICERS OF PARENT,
AND ANY OTHER DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDERS IRREVOCABLE (UNTIL
THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO TENDER ON
BEHALF OF THE STOCKHOLDER THE COVERED SHARES IF SUCH STOCKHOLDER FAILS TO TENDER SUCH COVERED
SHARES WITHIN THREE (3) BUSINESS DAYS AFTER THE RECEIPT OF A WRITTEN REQUEST FROM PARENT TO DO SO,
AND TO VOTE THE COVERED SHARES AS INDICATED IN SECTION 2. EACH STOCKHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER
ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY
AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO THE COVERED
SHARES (THE STOCKHOLDER REPRESENTING TO THE COMPANY THAT ANY SUCH PROXY IS NOT IRREVOCABLE).
(b) The proxy granted in this Section 3 shall automatically expire upon the Termination Date
of this Agreement.
4. No Inconsistent Agreements. Each Stockholder (severally and not jointly) hereby covenants
and agrees that, except as contemplated by this Agreement, such Stockholder (a) has not entered
into, and shall not enter into at any time prior to the Termination Date, any voting agreement or
voting trust with respect to any of such Stockholders Covered Shares and (b) has not granted, and
shall not grant at any time prior to the Termination Date, a proxy or power of attorney with
respect to any of such Stockholders Covered Shares, in either case, which is inconsistent with
such Stockholders obligations pursuant to this Agreement.
5. Termination; Amendments to Offer.
(a) This Agreement shall terminate automatically upon the earliest to occur of (i) the
Effective Time, (ii) written notice of termination of this Agreement is delivered by Parent to the
Stockholders, (iii) the Outside Date, (iv) the termination of the Merger Agreement in accordance
with its terms, (v) the date on which Parent or Merger Sub terminates, withdraws, or abandons the
Offer, (vi) the date on which the Offer is revised in a manner that violates the limitations set
forth in Section 5(b), or (vii) the date on which a Person (other than Parent or Merger Sub)
acquires more than 50% of the Companys outstanding voting securities on a fully-diluted basis
(such earliest date being referred to herein as the Termination Date); provided, that the
provisions set forth in Sections 14 to 27 shall survive the termination of this Agreement; provided
further, that any liability incurred by any party hereto as a result of a material breach of a term
or condition of this Agreement prior to such termination shall survive the termination of this
Agreement.
(b) Notwithstanding anything to the contrary herein, no amendment to the Offer in accordance
with the Merger Agreement shall release any Covered Shares from this Agreement prior to the
Termination Date otherwise determined in accordance with Section 5(a) unless such amendment (x) is
made without the written consent of the Company pursuant to Section 1.1(b) of the Merger Agreement,
and (y) except if made pursuant to Section 6.2(e) of the Merger Agreement to the extent set forth
below, (i) reduces the Offer Consideration, (ii) changes the form of consideration payable, (iii)
except as set forth in Section 1.1(d)(ii) of the Merger Agreement, reduces the number of Shares to
be purchased by Merger Sub, (iv) except as set forth in Section 1.1(d)(ii) of the Merger Agreement,
waives or amends the Minimum Condition, (v) adds to the Offer Conditions or imposes any other
conditions, (vi) extends the expiration date beyond the Outside Date, or (vii) otherwise amends,
modifies or supplements any Offer
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Condition or any term of the Offer set forth in the Merger Agreement in a manner adverse to
the holders of Shares. Parent may amend the Offer without violation of the foregoing limitations
and without releasing the Covered Shares in connection with its match right set forth in Section
6.2(e) of the Merger Agreement in order to cause the Offer to comply with its bona fide proposal(s)
pursuant to Section 6.2(e), provided that such match right-to-adjust shall not apply to Section
5(b)(iv) above and shall apply to Section 5(b)(vii) above only to the extent that the revised
Offer, taken as a whole (as opposed to any individual term), has not been revised in a manner
adverse to the holders of Shares. Any amendment that is not permitted pursuant to the foregoing
shall entitle a Stockholder to terminate this Agreement pursuant to Section 5(a)(vi).
6. Representations and Warranties of Stockholders. Each Stockholder, as to itself
(severally and not jointly), hereby represents and warrants to Parent as follows:
(a) Such Stockholder is the record and beneficial owner of, and has good and valid title to,
the Owned Shares set forth opposite its name on Schedule A hereto, free and clear of Liens except
as created by this Agreement, the terms of the Company charter and bylaws, or applicable federal
and state securities laws. Such Stockholder has sole voting power, sole power of disposition, sole
power to demand appraisal rights and sole power to agree to all of the matters set forth in this
Agreement applicable to such Stockholder, in each case with respect to all of those Owned Shares
set forth opposite its name on Schedule A hereto, with no limitations, qualifications or
restrictions on such rights, subject to applicable federal and state securities laws and the terms
of this Agreement. As of the date hereof, other than such Stockholders Owned Shares, such
Stockholder does not own beneficially or of record any Shares or other voting securities of the
Company or any interest therein. Such Stockholders Owned Shares are not subject to any voting
trust agreement or other Contract to which such Stockholder is a party restricting or otherwise
relating to the voting or Transfer of such Owned Shares. Such Stockholder has not appointed or
granted any proxy or power of attorney that is still in effect with respect to any Owned Shares,
except as contemplated by this Agreement.
(b) Each Stockholder has full legal power and capacity to execute and deliver this Agreement
and to perform such Stockholders obligations hereunder. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming due authorization, execution and delivery
by Parent, constitutes a legal, valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors
rights generally and by general principles of equity (regardless of whether considered in a
proceeding in equity or at law). If such Stockholder is married, and any of the Covered Shares of
such Stockholder constitute community property or otherwise need spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly and validly executed and
delivered by such Stockholders spouse and, assuming due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of such Stockholders spouse, enforceable
against such Stockholders spouse in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors rights generally and by general principles of equity (regardless of whether considered
in a proceeding in equity or at law).
(c) Except for the applicable requirements of the Exchange Act, (i) no filing with, and no
permit, authorization, consent or approval of, any Governmental Entity is necessary on the part of
such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder
or the consummation by such Stockholder of the transactions contemplated hereby and (ii) neither
the execution, delivery or performance of this Agreement by such Stockholder nor the consummation
by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with
any of the provisions hereof shall (A) conflict with or violate, any provision of the
organizational documents of any such Stockholder which is an entity, (B) result in any breach or
violation of, or constitute a default (or an
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event which, with notice or lapse of time or both, would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien on such property or asset of such Stockholder pursuant to, any Contract to which
such Stockholder is a party or by which such Stockholder or any property or asset of such
Stockholder is bound or affected or (C) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to such Stockholder or any of such Stockholders properties or assets
except, in the case of clause (B) or (C), for breaches, violations or defaults that would not,
individually or in the aggregate, materially impair the ability of such Stockholder to perform its
obligations hereunder.
(d) There is no action, suit, investigation, complaint or other proceeding pending against
such Stockholder or, to the knowledge of such Stockholder, threatened against such Stockholder or
that restricts or prohibits (or, if successful, would restrict or prohibit) the exercise by Parent
of its rights under this Agreement or the performance by such Stockholder of its obligations under
this Agreement.
(e) Such Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon such Stockholders execution and delivery of this Agreement and the
representations and warranties of such Stockholder contained herein.
7. Certain Covenants of Stockholder. Each Stockholder, for itself (severally and not
jointly), hereby covenants and agrees as follows:
(a) Prior to the Termination Date, such Stockholder will not take any action or fail to take
any action, or cause the Company or any other Representative to take any action or fail to take any
action, that would constitute, or be reasonably likely to result in, a breach of the Companys
covenants and agreements under Section 6.2 of the Merger Agreement.
(b) Prior to the Termination Date, such Stockholder shall not (i) tender into any tender or
exchange offer, (ii) sell (constructively or otherwise), transfer, pledge, hypothecate, grant,
encumber, assign or otherwise dispose of (collectively Transfer), or enter into any contract,
option, agreement or other arrangement or understanding with respect to the Transfer of any of the
Covered Shares or beneficial ownership or voting power thereof or therein (including by operation
of law), (iii) grant any proxies or powers of attorney, deposit any Covered Shares into a voting
trust or enter into a voting agreement with respect to any Covered Shares or (iv) knowingly take
any action that would make any representation or warranty of such Stockholder contained herein
untrue or incorrect, in any material respect, or have the effect of preventing or disabling such
Stockholder from performing its obligations under this Agreement. Any Transfer in violation of
this provision shall be void. Such Stockholder hereby authorizes and requests the Company to
notify the Companys transfer agent that there is a stop transfer order with respect to all of such
Stockholders Covered Shares and that this Agreement places limits on the voting of the Covered
Shares. If so requested by Parent, such Stockholder agrees that the certificates representing
Covered Shares shall bear a legend stating that they are subject to this Agreement and to the
irrevocable proxy granted in Section 3(a). Notwithstanding anything to the contrary in this
Agreement, the Stockholder may Transfer any or all of the Covered Shares, in accordance with
applicable Law, to such Stockholders spouse, ancestors, descendants or any trust controlled by the
Stockholder for any of their benefit, and with respect to any Stockholder that is not a natural
Person, to such Stockholders Affiliates; provided, that prior to and as a condition to the
effectiveness of such Transfer, each Person to whom any of such Covered Shares or any interest in
any of such Covered Shares is or may be Transferred shall have executed and delivered to Parent a
counterpart of this Agreement pursuant to which such Person shall be bound by all of the terms and
provisions of this Agreement as if it had been the Stockholder originally party hereto, and shall
have agreed in writing with Parent to hold such Covered Shares or interest in such Covered Shares
subject to all of the terms and provisions of this Agreement.
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(c) Prior to the Termination Date, such Stockholder shall promptly notify Parent of the number
of any new Shares or other voting securities of the Company with respect to which beneficial
ownership is acquired by such Stockholder, including, without limitation, by purchase, as a result
of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or
change of such shares, or upon exercise or conversion of any securities of the Company, if any,
after the date hereof. Any such Shares or other voting securities of the Company shall
automatically become subject to the terms of this Agreement, and Schedule A shall be adjusted
accordingly.
8. Stockholder Capacity. This Agreement is being entered into by each Stockholder solely in
its capacity as a stockholder of the Company, and not in such Stockholders capacity as a director
or officer of the Company, as applicable, and nothing in this Agreement shall restrict or limit the
ability of any Stockholder who is a director or officer of the Company to take any action in his or
her capacity as a director or officer of the Company.
9. No Ownership Interest. Nothing in this Agreement shall be deemed to vest in Parent or
any of its Affiliates any direct or indirect ownership of or with respect to any Covered Shares.
Beyond what is expressly provided in this Agreement, all ownership and economic benefits of and
relating to the Covered Shares shall remain vested in and belong to the Stockholders, and neither
Parent nor any of its Affiliates shall have any authority to direct any of the Stockholders in the
voting or disposition of any of the Covered Shares.
10. Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that such Stockholder may have under applicable Law.
11. Disclosure. Each Stockholder hereby authorizes Parent and the Company to publish and
disclose in any announcement or disclosure required by the SEC or the New York Stock Exchange and
in the TO Statement and Proxy Statement such Stockholders identity and ownership of such
Stockholders Covered Shares and the nature of such Stockholders obligations under this Agreement;
provided that the Stockholders shall have a reasonable opportunity to review and comment on any
such announcement or disclosure prior to its publication, filing or disclosure.
12. Further Assurances. From time to time, at the request of Parent and without further
consideration, each Stockholder shall take such further action as may reasonably be necessary or
desirable to consummate and make effective the transactions contemplated by this Agreement.
13. Non-Survival of Representations and Warranties. None of the representations and
warranties of the Stockholders contained herein shall survive the Termination Date.
14. Amendment and Modification. This Agreement may not be amended, modified or supplemented
in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed
on behalf of each party and otherwise as expressly set forth herein.
15. Waiver. No failure or delay of any party in exercising any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such right or power, or any course
of conduct, preclude any other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any
rights or remedies which they would otherwise have hereunder. Any agreement on the part of a party
to any such waiver shall be valid only if set forth in a written instrument executed and delivered
by such party.
16. Notices. All notices and other communications hereunder shall be in writing and shall
be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon
written confirmation of receipt by facsimile, (b) on the first (1st) Business Day
following the date of dispatch if
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delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier
of confirmed receipt or the fifth (5th) Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage prepaid. All notices
hereunder shall be delivered to the addresses set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such notice:
(i) If to a Stockholder, to the address set forth opposite such Stockholders name on
Schedule A hereto.
(ii) If to Parent:
CryoLife, Inc.
1655 Roberts Boulevard N.W.
Kennesaw, GA 30144
Attn: Chief Financial Officer
And
Attn: General Counsel
with a copy (which shall not constitute notice) to:
1655 Roberts Boulevard N.W.
Kennesaw, GA 30144
Attn: Chief Financial Officer
And
Attn: General Counsel
with a copy (which shall not constitute notice) to:
Arnall Golden Gregory LLP
171 17th Street NW, Suite 2100
Atlanta, GA 30363
Attention: B. Joseph Alley, Jr.
171 17th Street NW, Suite 2100
Atlanta, GA 30363
Attention: B. Joseph Alley, Jr.
17. Entire Agreement. This Agreement and the Merger Agreement constitute the entire
agreement, and supersede all prior written agreements, arrangements, communications and
understandings and all prior and contemporaneous oral agreements, arrangements, communications and
understandings between the parties with respect to the subject matter hereof and thereof.
18. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person other than the parties and their respective successors
and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by
reason of this Agreement.
19. Governing Law. This Agreement and all disputes or controversies arising out of or
relating to this Agreement or the transactions contemplated hereby shall be governed by, and
construed in accordance with, the internal laws of the State of Florida, without regard to the laws
of any other jurisdiction that might be applied because of the conflicts of Laws principles of the
State of Florida .
20. Submission to Jurisdiction. Each of the parties irrevocably agrees that any legal
action or proceeding arising out of or relating to this Agreement brought by any party or its
Affiliates against any other party or its Affiliates shall be brought and determined in the Federal
or state courts with jurisdiction over all or part of Leon County, Florida, provided that if
jurisdiction is not then available in such courts, then any such legal action or proceeding may be
brought in any federal court located in the State of Florida or any other Florida state court. Each
of the parties hereby irrevocably submits to the jurisdiction of the aforesaid courts for itself
and with respect to its property, generally and unconditionally, with regard to any such action or
proceeding arising out of or relating to this Agreement and the transactions contemplated hereby.
Each of the parties agrees not to commence any action, suit or proceeding relating thereto except
in the courts described above in Florida, other than actions in any court of competent jurisdiction
to enforce any judgment, decree or award rendered by any such court in Florida as described herein.
Each of the parties further agrees that notice as provided herein shall constitute sufficient
service of process and the parties further waive any argument that such service is insufficient.
Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way
of
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motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not
personally subject to the jurisdiction of the courts in Florida as described herein for any reason,
(b) that it or its property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c)
that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts.
21. Assignment; Successors. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of
law or otherwise, by either party without the prior written consent of the other party, and any
such assignment without such prior written consent shall be null and void; provided, however, that
Parent may assign all or any of its rights and obligations hereunder to any direct or indirect
Subsidiary of Parent; provided further, that no assignment shall limit the assignors obligations
hereunder. Subject to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective successors and assigns.
22. Enforcement. The parties agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with their specific terms
or were otherwise breached. Accordingly, each of the parties shall be entitled to specific
performance of the terms hereof, including an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement in the Federal or
state courts with jurisdiction over all or part of Leon County, Florida, provided that if
jurisdiction is not then available in such courts, then in any federal court located in the State
of Florida or any other Florida state court, this being in addition to any other remedy to which
such party is entitled at law or in equity. Each of the parties hereby further waives (a) any
defense in any action for specific performance that a remedy at law would be adequate and (b) any
requirement under any law to post security as a prerequisite to obtaining equitable relief.
23. Severability. Whenever possible, each provision or portion of any provision of this
Agreement shall be interpreted in such manner as to be effective and valid under applicable Law,
but if any provision or portion of any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
24. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
25. Counterparts. This Agreement may be executed in two or more counterparts, all of which
shall be considered one and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party; provided,
however, that if any of the Stockholders fail for any reason to execute this Agreement, then this
Agreement shall become effective as to the other Stockholders who execute this Agreement.
26. Confidentiality. Each Stockholder agrees, (i) except as required by Law or legal
process, (ii) as reasonably necessary or appropriate to defend, maintain, initiate or respond to
any Action (whether by a Governmental Entity or other Person) or (iii) as to any communications
among the
8
Stockholders, the parties to the Merger Agreement or their respective accountants, attorneys,
investment bankers and agents (to the extent they are providing services in connection with the
Offer and the Merger) (a) to hold any non-public information regarding this Agreement and the
Merger in strict confidence and (b) not to divulge any such non-public information to any third
Person.
27. No Presumption Against Drafting Party. Each of the parties to this Agreement
acknowledges that it has been represented by counsel in connection with this Agreement and the
transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision
that would require interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.
28. Several Obligations of Stockholders. The covenants, agreements, representations,
warranties and obligations of the respective Stockholders hereunder are their respective several
(and not joint) covenants, agreements, representations, warranties and obligations, and no
Stockholder shall have any responsibility or liability for any of the covenants, agreements,
representations, warranties and obligations of any other Stockholder.
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9
IN WITNESS WHEREOF, Parent and the Stockholders have caused to be executed or executed this
Agreement as of the date first written above.
PARENT: CRYOLIFE, INC. |
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By: | /s/ D. Ashley Lee | |||
Name: | D. Ashley Lee | |||
Title: | Exec. V.P., COO and CFO | |||
STOCKHOLDERS: |
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/s/ Paul McCormick | ||||
Paul McCormick | ||||
/s/ William Abbott | ||||
William Abbott | ||||
/s/ Richard Lanigan | ||||
Richard Lanigan | ||||
/s/ Raymond Cohen | ||||
Raymond Cohen | ||||
/s/ Marvin Slepian | ||||
Marvin Slepian | ||||
/s/ Gregory Waller | ||||
Gregory Waller | ||||
/s/ Ann Sabahat | ||||
Ann Sabahat |
10
List of Omitted Schedules
Schedule A Schedule of Stockholders
Registrant agrees to furnish supplementally a copy of any omitted schedule to the Commission upon
request.