EXHIBIT 99.1
CRYOLIFE, INC.
2009 EMPLOYEE STOCK INCENTIVE
PLAN
SECTION 1
GENERAL
1.1
Purpose . The CryoLife, Inc. 2009 Employee Stock Incentive
Plan (the “Plan”) has been established by CryoLife,
Inc. (the “Company”) to (i) attract and retain persons
eligible to participate in the Plan; (ii) motivate Participants (as
defined in Section 1.2 below), by means of appropriate incentives,
to achieve long-range goals; (iii) provide incentive compensation
opportunities that are competitive with those of other similar
companies; and (iv) further identify Participants’ interests
with those of the Company’s stockholders through compensation
that is based on the Company’s common stock; and thereby
promote the long-term financial interests of the Company and its
Subsidiaries, as defined in Section 9(h), including the growth in
value of the Company’s equity and enhancement of long-term
stockholder return. Pursuant to the Plan, Participants may receive
Options, SARs, or Other Stock Awards, each as defined herein
(collectively referred to as
“Awards”). The Plan is designed so
that Awards granted hereunder intended to comply with the
requirements for “performance-based compensation” under
Section 162(m) of the Internal Revenue Code of 1986, as amended
(the “Code”), may comply with such requirements, and
the Plan and such Awards shall be interpreted in a manner
consistent with such requirements.
1.2
Participation . Subject to the terms and conditions of the
Plan, the Committee (as defined in Section 6) shall determine and
designate, from time to time, from among the Eligible Grantees, as
defined in Section 9(f), those persons who will be granted one or
more Awards under the Plan, and thereby become
“Participants” in the Plan. In the discretion of the
Committee, a Participant may be granted any Award permitted under
the provisions of the Plan, and more than one Award may be granted
to a Participant. Subject to the provisions of Section 6.2(e),
Awards may be granted as alternatives to or replacement of awards
outstanding under the Plan, or any other plan or arrangement of the
Company or a Subsidiary (including a plan or arrangement of a
business or entity, all or a portion of which is acquired by the
Company or a Subsidiary).
1.3
Operation, Administration, and Definitions . The operation
and administration of the Plan, including the Awards made under the
Plan, shall be subject to the provisions of Section 5 (relating to
operation and administration). Capitalized terms in the Plan shall
be defined as set forth in the Plan (including the definition
provisions of Section 9 of the Plan).
SECTION 2
OPTIONS AND SARS
(a)
The grant of an “Option” entitles the Participant to
purchase shares of Stock at an Exercise Price established by the
Committee. Options granted under this Section 2 may either be
Incentive Stock Options (“ISOs”) or Non-Qualified
Options (“NQOs”), as determined in the discretion of
the Committee. An “ISO” is an Option that is intended
to satisfy the requirements applicable to an “incentive stock
option” described in Section 422(b) of the Code. An
“NQO” is an Option that is not intended to be an
“incentive stock option” as that term is described in
Section 422(b) of the Code.
(b)
A stock appreciation right (a “SAR”) entitles the
Participant to receive, in cash or Stock (as determined in
accordance with Subsection 2.5), value equal to (or otherwise based
on) the excess of: (a) the Fair Market Value (as defined in Section
9) of a specified number of shares of Stock at the time of
exercise; over (b) an Exercise Price established by the
Committee.
2.2
Exercise Price . The Exercise Price of each Option and SAR
granted under this Section 2 shall be not less than 100% of the
Fair Market Value of a share of Stock on the date of grant of the
Award. Unless a higher price is established by the Committee or
determined by a method established by the Committee at the time the
Option or SAR is granted, the Exercise Price for each Option and
SAR shall be equal to 100% of the Fair Market Value on the date of
grant of the Award.
2.3
Exercise . An Option and a SAR shall be exercisable in
accordance with such terms and conditions and during such periods
as may be established by the Committee, before or after
grant.
2.4
Payment of Option Exercise Price . The payment of the
Exercise Price of an Option granted under this Section 2 shall be
subject to the following:
(a)
Subject to the following provisions of this Subsection 2.4, the
full Exercise Price for shares of Stock purchased upon the exercise
of any Option shall be paid at the time of such exercise (except
that, in the case of an exercise arrangement approved by the
Committee and described in paragraph 2.4(c), payment may be made as
soon as practicable after the exercise).
(b)
The Exercise Price shall be payable in cash or by tendering (by
actual delivery of shares) unrestricted shares of Stock that are
acceptable to the Committee, valued at Fair Market Value as of the
day the shares are tendered, or in any combination of cash or
shares, as determined by the Committee.
(c)
To the extent permitted by applicable law, a Participant may elect
to pay the Exercise Price upon the exercise of an Option by
irrevocably authorizing a third party to sell shares of Stock (or a
sufficient portion of the shares) acquired upon exercise of the
Option and remit to the Company a sufficient portion of the sale
proceeds to pay the entire Exercise Price and any tax withholding
resulting from such exercise.
2.5
Settlement of Award . Shares of Stock delivered pursuant to
the exercise of an Option or a SAR shall be subject to such
conditions, restrictions and contingencies as the Committee may
establish in the applicable Award Agreement. Settlement of SARs may
be made in shares of Stock (valued at their Fair Market Value at
the time of exercise), in cash, or in a combination thereof, as
determined in the discretion of the Committee. The Committee, in
its discretion, may impose such conditions, restrictions and
contingencies with respect to shares of Stock acquired pursuant to
the exercise of an Option or a SAR as the Committee determines to
be desirable.
2.6
Restrictions on Options and SAR Awards . Each Option and SAR
shall be subject to the following:
(a) The
term of any Option or SAR granted under the Plan shall not exceed
seven years from the date of grant.
(b) Any
such Award shall be subject to such conditions, restrictions and
contingencies as the Committee shall determine.
(c) The
Committee may designate whether any such Awards being granted to
any Participant are intended to be “performance-based
compensation” as that term is used in Section 162(m) of the
Code. Any such Awards designated as intended to be
“performance-based compensation” shall be conditioned
on the achievement of one or more “Performance
Measures.” The Performance Measures that may be used by the
Committee for such Awards shall be based on any one or more of the
following, which shall not be required to be calculated in
accordance with GAAP, as selected by the Committee: return on
capital or increase in pretax earnings of the Company and/or one or
more divisions and/or subsidiaries, return on stockholders’
equity of the Company, increase in earnings per share of the
Company, sales of the Company and/or one or more products or
service offerings, divisions and/or subsidiaries, pretax earnings
of the Company and/or one or more divisions and/or subsidiaries,
net earnings of the Company and/or one or more divisions and/or
subsidiaries, control of operating and/or non-operating expenses of
the Company and/or one or more divisions and/or subsidiaries,
margins of the Company and/or one or more divisions and/or
subsidiaries, market price of the Company’s securities, and,
solely for an Award not intended to constitute
“performance-based compensation” under Section 162(m)
of the Code, other factors directly tied to the performance of the
Company and/or one or more divisions and/or subsidiaries or other
performance criteria. For Awards intended to be
“performance-based compensation,” the grant of the
Awards and the establishment of the Performance Measures shall be
made during the period required under Code Section
162(m).
SECTION 3
OTHER STOCK AWARDS
3.1
Definitions . The term "Other Stock Awards" means any of the
following:
(a)
A “Stock Unit” Award is the grant of a right to receive
shares of Stock in the future.
(b)
A “Performance Share” Award is a grant of a right to
receive shares of Stock or Stock Units, which is contingent on the
achievement of performance or other objectives during a specified
period.
(c)
A “Restricted Stock” Award is a grant of shares of
Stock, and a “Restricted Stock Unit” Award is the grant
of a right to receive shares of Stock in the future, with such
shares of Stock or right to future delivery of such shares of Stock
subject to a risk of forfeiture or other restrictions that will
lapse upon the achievement of one or more goals relating to
completion of service by the Participant, or achievement of
performance or other objectives, as determined by the
Committee.
3.2
Restrictions on Other Stock Awards . Each Stock Unit Award,
Restricted Stock Award, Restricted Stock Unit Award and Performance
Share Award shall be subject to the following:
(a)
Any such Award shall be subject to such conditions, restrictions
and contingencies as the Committee shall determine.
(b)
The Committee may designate whether any such Awards being granted
to any Participant are intended to be “performance-based
compensation” as that term is used in Section 162(m) of the
Code. Any such Awards designated as intended to be
“performance-based compensation” shall be conditioned
on the achievement of one or more Performance Measures.
SECTION 4
STOCK SUBJECT TO THE PLAN
4.1
Awards Subject to Plan . Awards granted under the Plan shall
be subject to the following:
(a)
Subject to the following provisions of this Subsection 4.1, the
maximum number of shares of Stock that may be delivered to
Participants and their beneficiaries under the Plan shall be 2
million shares of Stock. Shares of Stock issuable
hereunder may, in whole or in part, be authorized but unissued
shares or shares of Stock that shall have been or may be reacquired
by the Company in the open market, in private transactions or
otherwise. Notwithstanding the foregoing, with
respect to SARs that are settled in Stock, the aggregate number of
shares of Stock subject to the SAR grant shall be counted against
the shares available for issuance under the Plan as one share for
every share subject thereto, regardless of the number of shares
used to settle the SAR upon exercise.
(b)
Subject to adjustment in accordance with Subsections 4.2 and 4.3,
the following additional maximums are imposed under the
Plan:
(i)
Subject to the proviso contained in this paragraph, the maximum
number of shares of Stock that may be issued in conjunction with
Other Stock Awards granted pursuant to Section 3 shall be up to
500,000 shares; provided, however, that for every share of Stock in
excess of 500,000 awarded hereunder in respect of
Other Stock Awards, the maximum number of shares reserved for grant
hereunder shall be reduced by 1.5 shares. By way of
example, if only grants of Other Stock Awards are made under the
Plan, the maximum number of shares that may be issued is
1,500,000.
(ii)
The maximum number of shares of Stock that may be covered by Awards
granted to any one individual pursuant to Section 2 (relating to
Options and SARs) shall be 400,000 during any fiscal year and the
maximum number of shares of Stock that may be covered by Other
Stock Awards pursuant to Section 3 shall be 250,000 during any
fiscal year; and
(c)
To the extent any shares of Stock covered by an Award are not
delivered to a Participant or beneficiary because the Award is
forfeited or canceled, or the shares of Stock are not delivered
because the Award is settled in cash, such shares shall not be
deemed to have been delivered for purposes of determining the
maximum number of shares of Stock available for delivery under the
Plan. To the extent that shares of Stock subject to
Other Stock Awards, and the issuance of which reduced the maximum
number of shares authorized for issuance under the Plan by 1.5
shares, are forfeited or cancelled, or if such an Award terminates
or expires without a distribution of shares to the Participant, the
number of shares of Stock remaining for Award grants hereunder
shall be increased by 1.5 for each share forfeited, cancelled or
otherwise not delivered. Shares of Stock shall not again
be available if such shares are surrendered or withheld as payment
of either the exercise price of an Award and/ or withholding taxes
in respect of an Award. Awards that are settled solely in cash
shall not reduce the number of shares of Stock available for
Awards. Upon the exercise of any Award granted in tandem with any
other Award, such related Awards shall be cancelled to the extent
of the number of shares of Stock as to which the Award is exercised
and, notwithstanding the foregoing, such number of shares shall no
longer be available for Awards under the Plan. The maximum
number of shares of Stock available for delivery under the Plan
shall not be reduced for shares subject to plans assumed by the
Company in an acquisition of an interest in another
company.
4.2 Adjustments for Changes in Capitalization
. If the outstanding shares of Stock are changed into or
exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization,
reclassification, stock split, stock dividend, combination,
subdivision or similar transaction, or if the Company makes an
extraordinary dividend or distribution to its stockholders
(including without limitation to implement a spinoff) (each, a
“Corporate Transaction”) then, subject to any required
action by the stockholders of the Company, the number and kind of
shares of Company stock available under the Plan or subject to any
limit or maximum hereunder shall automatically be proportionately
adjusted, with no action required on the part of the Committee or
otherwise. Subject to any required action by the stockholders, the
number and kind of shares covered by each outstanding Award, and
the price per share in each such Award, shall also be automatically
proportionately adjusted for any increase or decrease in the number
of issued shares of the Company resulting from a Corporate
Transaction or any other increase or decrease in the number of such
shares, or any decrease in the value of such shares, effected
without receipt of consideration by the Company. Notwithstanding
the foregoing, no fractional shares shall be issued or made subject
to an Option, SAR or Stock Award in making the foregoing
adjustments. All adjustments made pursuant to this Section shall be
final, conclusive and binding upon the holders of Options, SARS and
Stock Awards.
4.3 Certain Mergers and Other Extraordinary
Events . If the Company merges or consolidates with
another corporation, or if the Company is liquidated or sells or
otherwise disposes of substantially all of its assets while
unexercised Options or other Awards remain outstanding under this
Plan, (A) subject to the provisions of clause (C) below, after the
effective date of the merger, consolidation, liquidation, sale or
other disposition, as the case may be, whether or not the Company
is the surviving corporation, each holder of an outstanding Option
or other Award shall be entitled, upon exercise of that Option or
Award or in place of it, as the case may be, to receive, at the
option of the Committee and in lieu of shares of Stock, (i) the
number and class or classes of shares of Stock or other securities
or property to which the holder would have been entitled if,
immediately prior to the merger, consolidation, liquidation, sale
or other disposition, the holder had been the holder of record of a
number of shares of Stock equal to the number of shares of Stock as
to which that Option may be exercised or are subject to the Award
or (ii) shares of stock of the company that is the surviving
corporation in such merger, consolidation, liquidation, sale or
other disposition having a value, as of the date of payment under
Subsection 4.3(i) as determined by the Committee in its sole
discretion, equal to the value of the shares of Stock or other
securities or property otherwise payable under Subsection 4.3(i);
(B) whether or not the Company is the surviving corporation, if
Options or other Awards have not already become exercisable, the
Board of Directors may waive any limitations set forth in or
imposed pursuant to this Plan so that all Options or other Awards,
from and after a date prior to the effective date of that merger,
consolidation, liquidation, sale or other disposition, as the case
may be, specified by the Board of Directors, shall be exercisable
in full; and (C) all outstanding Options or SARs may be cancelled
by the Board of Directors as of the effective date of any merger,
consolidation, liquidation, sale or other disposition, provided
that with respect to a merger or consolidation the Company is not
the surviving company, and provided further that any
optionee or SAR holder shall have the right immediately prior to
such event to exercise his or her Option or SAR to the extent such
optionee or holder is otherwise able to do so in accordance with
this Plan or his individual Option or SAR agreement; provided,
further, that any such cancellation pursuant to this Section 4.3
shall be contingent upon the payment to the affected Participants
of an amount equal to (i) in the case of any out-of-the-money
Option or SAR, cash, property or a combination thereof having an
aggregate value equal to the value of such Option or SAR, as
determined by the Committee or the Board of Directors, as
applicable, in its sole discretion, and (ii) in the case of an
in-the-money Option or SAR, cash, property or a combination thereof
having an aggregate value equal to the excess of the value of the
per-share amount of consideration paid pursuant to the merger,
consolidation, liquidation, sale or other disposition, as the case
may be, giving rise to such cancellation, over the exercise price
of such Option or SAR multiplied by the number of shares of Stock
subject to the Option or SAR.
Any adjustments
pursuant to this Subsection 4.3 shall be made by the Board or
Committee, as the case may be, whose determination in that respect
shall be final, binding and conclusive, regardless of whether or
not any such adjustment shall have the result of causing an ISO to
cease to qualify as an ISO.
4.4 Changes in Par Value . In the
event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized
shares with par value into the same number of shares with a
different par value or without par value, the shares resulting from
any such change shall be deemed to be the shares within the meaning
of this Plan.
4.5 Limitation on Grantees’ Rights
. Except as hereinbefore expressly provided in this
Section 4, a Participant shall have no rights by reason of any
subdivision or consolidation of shares of stock of any class or the
payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger, or consolidation or spin-off of
assets or stock of another
