INDEMNIFICATION AGREEMENT
EXHIBIT
99.2
THIS INDEMNIFICATION AGREEMENT
is made and entered into as of May 1, 2008, between CRYOLIFE, INC., a Florida
corporation (the “Corporation”), and
Xxxxxx Xxxxxx, a resident of the State of New York (the “Indemnitee”).
W
I T N E S S E T H:
WHEREAS, at the request of the
Corporation, Indemnitee is a member of the board of directors of the Corporation
(the “Board of
Directors”) and in such capacity is performing a valuable service for the
Corporation;
WHEREAS, in addition to the
indemnification to which Indemnitee is entitled pursuant to the Articles of
Incorporation and Bylaws of the Corporation and as additional consideration for
Indemnitee’s service, the Corporation has obtained or may in the future obtain,
at its expense, directors’ and officers’ liability insurance protecting
Indemnitee in connection with such service; and
WHEREAS, Indemnitee and the
Corporation acknowledge that the indemnities available under the Corporation’s
Bylaws and Articles of Incorporation, as amended, and such insurance may not, in
all situations, be adequate to protect Indemnitee against the risks associated
with service to the Corporation.
NOW, THEREFORE, in
consideration of the premises and the covenants in this Agreement, the parties
hereto, intending to be legally bound hereby, agree as follows:
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1.
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Indemnification.
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(a) The
Corporation shall indemnify Indemnitee to the fullest extent permitted by the
Florida Business Corporation-Act and any other applicable law. This obligation
includes the obligation to indemnify Indemnitee whenever Indemnitee is or was a
party or is threatened to be made a party to any Proceeding (capitalized terms
not otherwise defined are defined in Section 13) because (or arising in part
because) he is or was (or is alleged to be or have been) a director, officer,
employee, partner, fiduciary or agent of the Corporation or is or was (or is
alleged to be or have been) serving at the request of the Corporation as a
director, officer, employee, partner, fiduciary or agent of another corporation,
partnership, joint venture, limited liability company, limited liability
partnership, limited partnership, employee benefit plan, trust or other
enterprise, or because of anything done or not done by Indemnitee in such
capacity, against Expenses and Liabilities as defined below (including the costs
of any investigation, defense, settlement or appeal), actually and reasonably
incurred by Indemnitee or on his behalf in connection with such Proceeding, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The foregoing indemnification, including the conditions thereto,
shall also apply to any such Proceeding brought by or in the right of the
Corporation. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) To the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any Proceeding, he shall be indemnified against Expenses and Liabilities
actually and reasonably incurred by him in connection therewith. .
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(c) If the
indemnification provided for in Section 1(a) above for any reason is held by a
court of competent jurisdiction to be unavailable to Indemnitee in respect of
any losses, claims, damages, expenses or liabilities referred to therein due to
public policy related to. applicable federal or state securities laws, then the
Corporation, in lieu of indemnifying Indemnitee thereunder, shall contribute to
the amount paid or payable by Indemnitee as a result of such losses, claims,
damages, expenses or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Corporation and Indemnitee, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the. relative fault
of the Corporation and Indemnitee in connection with the action or inaction
which resulted in such losses, claims, damages, expenses or liabilities, as well
as any other relevant equitable
considerations. In connection with the registration of the Corporation’s
securities, the relative benefits received by the Corporation and Indemnitee
shall be deemed to be in the same respective proportions that the net proceeds
from the offering (before deducting expenses) received by the Corporation and
Indemnitee, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
securities so, offered. The relative fault of the Corporation and Indemnitee
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Corporation or
Indemnitee and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The
Corporation and Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 1(c) were determined by pro rata or per
capita allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. In connection with the registration of the Corporation’s securities,
in no event shall Indemnitee be required to contribute any amount under this
Section 1(c) in excess of the lesser of (i) that proportion of the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total securities sold under such registration statement which
was sold by Indemnitee or (ii) the proceeds received by Indemnitee from sale of
securities under such registration statement. No person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
2. Mandatory
Advancement of Expenses.
Unless a determination has been made pursuant to Section 5 (and remains
in effect) that Indemnitee is not entitled to indemnification pursuant to
Section 1, all reasonable Expenses incurred by or on behalf of Indemnitee shall
be advanced from time to time by the Corporation to Indemnitee within thirty
(30) days after the Corporation’s receipt of a written request for an advance of
Expenses by Indemnitee, whether prior to or after final disposition of a
Proceeding. The written request for an advancement of any and all Expenses under
this Section shall contain reasonable detail of the Expenses incurred by
Indemnitee: Indemnitee shall agree, at the time of such advance, to repay the
amounts advanced if it is ultimately determined that Indemnitee is not entitled
to be indemnified pursuant to the terms of this Agreement. Any advances made
shall be unsecured and no interest shall be charged thereon.
3. Limitations. The foregoing indemnity and
advancement of Expenses shall .apply only to the extent that Indemnitee has not
been indemnified and reimbursed .pursuant to such insurance as the Corporation
may maintain for Indemnitee’s benefit or pursuant to -the Articles of
Incorporation or Bylaws of the Corporation or otherwise, provided, however, that
notwithstanding the availability of such other indemnification and reimbursement
pursuant to such Corporation maintained policies, Indemnitee may, with the
Corporation’s consent, claim indemnification and advancement of Expenses
pursuant to this Agreement by assigning Indemnitee’s claims under such insurance
to the Corporation to the extent Indemnitee is paid by the
Corporation.
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Furthermore,
any other provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to .the terms of this Agreement to (a) indemnify or
advance Expenses to lndemnitee with respect to any Proceeding initiated or
brought voluntarily by such Indemnitee and not by way of defense, except (i)
with respect to actions or proceedings to establish or enforce a right to
indemnity under this Agreement or any other agreement or insurance policy or
under the Articles of Incorporation. or Bylaws now or hereafter in effect
relating to a Proceeding and (ii) in specific cases in which the Board of
Directors-has approved the initiation or bringing of such Proceeding, (b)
indemnify Indemnitee for expenses and/or the payment of profits with respect to
any short swing profit liability owed to the Corporation by Indemnitee pursuant
to Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute, and the regulations promulgated thereunder, or (c)
indemnify Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous.
4. Insurance. The Corporation may, but is
not obligated to, maintain insurance to protect itself and/or Indemnitee against
Expenses and Liabilities in connection with Proceedings to the fullest extent
permitted by applicable laws, its Articles of Incorporation or the Bylaws of the
Corporation. The Corporation may, but is not obligated to, create a trust fund,
grant a -security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification or advancement of Expenses as provided in this Agreement.
If, at the time of the receipt by the Corporation of a notice of a claim by
Indemnitee pursuant to Section 5 hereof (or upon the Corporation otherwise
becoming aware of such a claim), the Corporation has liability insurance in
effect which may cover such claim, then the Corporation shall give timely notice
of the commencement of such claim to the insurers in accordance with the
procedures set forth in the respective policies. The Corporation shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of Indemnitee, all amounts payable as a result of such action, suit,
proceeding, inquiry or investigation in accordance with the terms of such
policies.
5. Procedure
for Determination of Entitlement to Indemnification.
(a) Whenever
Indemnitee believes .that Indemnitee is entitled to indemnification or
advancement of expenses pursuant to this Agreement, Indemnitee shall submit a
written request for indemnification or such advances to the.. Corporation. Any
..request shall include sufficient documentation or information reasonably
available to Indemnitee to support his claim. Indemnitee shall submit such claim
within a reasonable time not to exceed three months (or after request by the
Corporation in order to. assist the Corporation in filing a claim) after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, final termination or
other disposition or partial disposition of any Proceeding, whichever is the
latest event for which Indemnitee requests indemnification. If a determination
is required by the Corporation that Indemnitee .is entitled to Indemnification,
and the Corporation fails to respond within sixty (60) days of such request; the
Corporation shall be deemed to have approved the request. Any indemnification or
advance of expenses which is due and payable to Indemnitee shall be made
promptly arid in any event within thirty (30) days after the determination that
Indemnitee is entitled to such amounts.
(b) If a
determination regarding indemnification is required, the Indemnitee shall be
entitled to select the forum in which Indemnitee’s request for indemnification
will be heard, which selection shall be included in the written request for
indemnification required in, Section 5(a). The forum shall be any one of the
following:
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(i) A
majority vote of the Board of Directors consisting of Disinterested Directors
(even though less than a quorum); or
(ii) A
majority vote of a Committee of Disinterested Directors designated by a majority
vote of Disinterested Directors (even though less than a quorum);
or
(iii) If there
are no Disinterested Directors, or if the Disinterested Directors so direct, by
independent legal counsel in a written opinion.
If
Indemnitee fails to make such designation, his claim shall be determined a
majority vote of the Board of Directors consisting of Disinterested Directors
(even though less than a quorum. In all instances, the reviewing party shall be
bound by a rebuttable presumption created by the filing of the written request
by Indemnitee that (i) Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, and that Indemnitee had no reason to believe his conduct was
unlawful, and (ii) Indemnitee is entitled to indemnification.
6. Fees and
Expenses of Counsel. The Corporation agrees to pay the reasonable fees
and expenses of independent legal counsel (including appropriate retainers) for
Indemnitee should such counsel be retained to make a determination of
Indemnitee’s entitlement to indemnification pursuant to Section 5 of this
Agreement.
7. Remedies
of Indemnitee.
(a) In the
event that (i) a determination pursuant to Section 5 hereof is made that
Indemnitee is not entitled to indemnification, (ii) advances of Expenses are not
made pursuant to: this Agreement for any reason, (iii) payment has not been
timely made following a determination of entitlement to indemnification pursuant
to this Agreement, or (iv) Indemnitee otherwise seeks enforcement of this
Agreement, Indemnitee shall be entitled to a final adjudication of his rights in
an appropriate court. The Corporation shall not oppose Indemnitee’s right to
seek any such adjudication.
(b) In the
event that a determination that Indemnitee is not entitled to indemnification,
in whole or in part, has been made pursuant to Section 5 hereof, the decision in
the judicial proceeding provided in paragraph (a) of this Section 7 shall be
made de novo and Indemnitee shall not be prejudiced by reason of a determination
that he is not entitled to indemnification.
(c) If a
determination that Indemnitee is entitled to indemnification has been made
pursuant to Section 5 hereof or otherwise pursuant to the terms of this
Agreement, the Corporation shall be bound by such determination in the absence
of (i) misrepresentation of a material fact by Indemnitee or (ii) a specific
finding (which has become final) by an appropriate court all or any part of such
indemnification is expressly prohibited by law.
(d) In any
court proceeding pursuant to this Section 7, the Corporation shall be precluded
from asserting that the procedures and presumptions of this Agreement are not
valid, binding and enforceable. The Corporation shall stipulate in any such
court that the Corporation is bound by all the provisions of this Agreement
(including the rebuttable presumptions specified in Section 5(b)) and is
precluded from making any assertion to the contrary.
8. Modification.
Waiver, Termination and Cancellation. No supplement, modification,
termination, cancellation or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall any such waiver
constitute a continuing waiver.
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9. Notice by
Indemnitee and Defense of Claim. Indemnitee shall promptly notify the
Corporation in writing upon being served with any summons, citation, subpoena,
..complaint, indictment, information or other document relating to any matter,
whether civil, criminal, administrative or investigative, but the omission to so
notify the Corporation will not relieve it from any liability which it may. have
to Indemnitee if such omission does not prejudice the Corporation’s rights. If
such omission does prejudice the Corporation’s rights, the Corporation will be
relieved from liability only to the extent of such prejudice. With respect to
any Proceeding as to which Indemnitee notifies the Corporation of the
commencement thereof:
(a) The
Corporation will be entitled to participate therein at its own expense;
and
(b) The
Corporation jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee; provided, however, that the Corporation shall not be entitled to
assume the defense of any Proceeding if Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee with respect to such Proceeding. After notice from the Corporation to
Indemnitee of its election to assume the defense thereof, the Corporation will
not be liable to Indemnitee under this Agreement for any Expenses subsequently
incurred by Indemnitee in connection with the defense thereof, other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ his own counsel in such Proceeding but the fees
and expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Indemnitee
unless:
(i) The
employment of counsel by Indemnitee has been authorized in writing by the
Corporation;
(ii) Indemnitee
shall have reasonably concluded that counsel engaged by the Corporation may
not adequately represent Indemnitee; or
(iii) The
Corporation shall not in fact have employed counsel to assume the; defense in
such Proceeding or shall not in fact-have assumed such defense and be acting in
connection therewith with reasonable diligence;
in each
of which cases the fees and expenses of such counsel shall be at the expense of
the Corporation.
(c) The
Corporation shall not settle any Proceeding in any manner which would impose any
penalty or limitation on Indemnitee, other than monetary penalties paid by the
Corporation, without Indemnitee’s written consent; provided, however, that
Indemnitee will not unreasonably withhold his consent to any proposed
settlement.
10. Deposit
of Funds in Trust. If the Corporation voluntarily decides to
dissolve or to file a petition for relief under any applicable bankruptcy,
moratorium or similar laws, then not later than 10 days prior to such
dissolution or filing, the Corporation shall deposit in trust for the sole and
exclusive benefit of Indemnitee a cash amount equal to all amounts previously
authorized to be paid to Indemnitee hereunder, such amounts to be used to
discharge the Corporation’s obligations to Indemnitee hereunder. Any amounts in
such trust not required for such purpose shall be returned to the Corporation.
This Section 10 shall not apply to the dissolution of the Corporation in
connection with a transaction as to which Section 13(b)(iii)
applies.
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11. Notices. All
notices, requests, consents and other communications hereunder. shall be in
writing and shall be sent by Federal Express or other nationally recognized
overnight or same day courier service providing a return receipt (and shall be
effective when received, when refused or when the same cannot be delivered, as
evidenced on the return receipt) to the following addresses:
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To
Corporation:
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CryoLife,
Inc
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0000
Xxxxxxx Xxxx., XX
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Xxxxxxxx,
XX 00000
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Attn:
General Counsel
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To
Indemnitee:
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Xxxxxx
Xxxxxx
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000
Xxxxxxxxx Xxxxxx
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Xxxxx
Xxxxx, XX 00000
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12. Nonexclusivity. The rights of Indemnitee
hereunder shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under the Florida Business Corporation Act,
the Corporation’s Articles of Incorporation or Bylaws, or any agreements,
insurance policies, vote of shareholders, resolution of the Board of Directors
or Disinterested Directors, or otherwise. The provisions of this Agreement are
hereby deemed to be a contract right between the Corporation and the Indemnitee
and any repeal of the relevant provisions of the Florida Business Corporation
Act, or other applicable law, shall not affect-this Agreement or its
enforceability.
13. Certain
Definitions.
(a) References
to the “Corporation” shall include, in addition to the resulting corporation,
any constituent corporation or other enterprise (including any constituent of a
constituent or other enterprise) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees, partners, fiduciaries or
agents, so that any person who is or was a director, officer, employee, partner,
fiduciary or agent of such constituent corporation or other enterprise, or is or
was serving at the request of such constituent corporation or other enterprise
as a. director, officer, employee,. partner, fiduciary or agent of another
corporation, partnership, joint venture, limited liability company, limited
liability partnership, limited partnership, employee benefit plan, trust or
other enterprise, shall stand in the same position under this Agreement with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation or other enterprise if its separate existence
had continued.
(b) A “Change
in Control” shall be deemed to have occurred if
(i) any
“Person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation or a.
corporation owned directly or indirectly by the shareholders of the Corporation
in substantially the same proportions as their ownership of stock of the
Corporation,
(A) who is or
becomes the beneficial owner, directly or indirectly, of securities of the
Corporation representing 20% or more of the combined voting power of the
Corporation’s
then outstanding voting securities, increases his beneficial ownership of such
securities by 5% or more over the percentage so owned by such person,
or
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(B) becomes
the “beneficial owner” (as defined in rule 13d-3 under said Act), directly or
indirectly, of securities of the Corporation representing more than 30% of the
total voting power represented by the Corporation’s then outstanding voting
securities,
(ii) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation and any new director
whose election by the Board of. Directors or nomination for election by the
Corporation’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, or
(iii) the
shareholders of the Corporation approve a merger or consolidation of the
Corporation with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the total voting power represented by the
voting securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation or the shareholders of the
Corporation approve a plan of complete liquidation of the Corporation or an
agreement for the sale or disposition by the Corporation of (in one transaction
or a series of transactions) all or substantially all of the Corporation’s
assets.
(c) “Disinterested
Director” shall mean a director of the Corporation who is not and was not a
party to the Proceeding in respect of which indemnification is being sought by
Indemnitee. If there has been a Change in Control since the date hereof, to
qualify as a Disinterested Director, such director must also have been a
director of the Corporation prior to such Change in Control.
(d) “Expenses”
shall mean all direct and indirect costs (including, without limitation,
attorneys’ fees, retainers, court .costs, transcripts, costs of investigation,
costs of defense, costs of defending witnesses or preparing to be a witness,
costs of negotiating settlements, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, costs of attachment, appeal or similar bonds,
and all other disbursements or out-of-pocket expenses) actually and reasonably
incurred in connection with a Proceeding or establishing or enforcing a right to
indemnification or advances under this Agreement, applicable law or otherwise;
provided, however, that “Expenses” shall not include any
Liabilities.
(e) “Indemnification
Period” shall mean the period of time during which Indemnitee shall continue to
serve as a director of the Corporation, and thereafter so long as Indemnitee
shall be subject to any possible Proceeding arising out of acts or omissions of
Indemnitee as a director, officer, employee, fiduciary or agent of the
Corporation or otherwise at the request of or on behalf of the
Corporation.
(f) “Liabilities”
shall mean liabilities of any type whatsoever including, but not limited to, any
damages, judgments, fines, ERISA excise taxes and penalties, penalties and
amounts paid in settlement (including all interest assessments and other charges
paid or payable in connection with or in respect of such judgments, fines,
penalties or amounts paid in settlement) of any Proceeding, as well as any
federal, state, local or foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Agreement.
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(g) “Proceeding”
shall mean any threatened, pending or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, including any appeal therefrom.
(h) For
purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to “serving at. the request of the corporation” shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, partner, fiduciary or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred to in this
Agreement.
14. Binding
Effect, Duration and Scope of Agreement. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including the executors,
administrators and heirs of Indemnitee’s estate, and any direct or indirect
successor, including spouses, by purchase, merger, consolidation or otherwise,
to all or substantially all of the business or assets of the Corporation), heirs
and personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as a director, officer, employee, fiduciary or agent.
15. Severability.
If any provision or provisions of this Agreement (or any portion thereof) shall
be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and
(b) to the
fullest extent legally possible, the provisions of this Agreement shall be
construed so as to give effect to the intent of any provision held invalid,
illegal or unenforceable.
16. Governing
Law, Interpretation of Agreement, and Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Florida, as applied to contracts between Florida residents
entered into and to be performed’ entirely within Florida. The Corporation and
Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of
the State of Georgia for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement and agree that any
action instituted under this Agreement shall be commenced, prosecuted and
continued only in the- federal and state courts of the State of Georgia in and
for Xxxxxx County, which shall be the exclusive and only proper forum for
adjudicating such a claim.
17. Entire
Agreement. This Agreement represents the entire agreement
between the. parties hereto, and there are no other agreements, contracts or
understandings .between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 12 hereof.
18. Partial
Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some or a portion of the
Expenses, judgments, fines or penalties actually and reasonably incurred by him
in the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Corporation shall nevertheless
indemnify Indemnitee for the portion of such Expenses, judgments, fines or
penalties to which Indemnitee is entitled.
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19. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement.
[signatures
on following page(s)]
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IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date first written
above.
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CORPORATION:
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CRYOLIFE,
INC.
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxx | ||
| Title: | CEO | ||
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INDEMNITEE:
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| /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx | |||
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