EXHIBIT 4.4
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (the "First Amendment") to the Rights Agreement dated
as of November 27, 1995, between CryoLife, Inc., a Florida corporation (the
"Company"), and Chemical Mellon Shareholder Services, LLC, amends that certain
Rights Agreement (the "Amended and Restated Rights Agreement") dated as of
November 27, 1995.
WHEREAS, on May 15, 1997, the Board of Directors approved the appointment
of American Stock Transfer & Trust Company (the "Rights Agent") to serve as
successor rights agent to Chemical Mellon Shareholder Services, LLC, and;
WHEREAS, pursuant to Section 27, the Company has decided to amend the
provisions of the Rights Agreement regarding the qualifications of successor
rights agents;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. AMENDMENTS TO RIGHTS AGREEMENT.
The Rights Agreement is hereby amended as follows:
A. Section 21 of the Rights Agreement is hereby amended in its entirely
to read as follows:
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
of the Common Shares or Preferred Shares by registered or certified mail, and to
the holders of the rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Rights Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (or, prior to
the Distribution Date, of the Common Shares) (who shall, with such notice,
submit his Right Certificate or, prior to the Distribution Date, the certificate
representing his Common Shares, for inspection by the Company), then the
registered holder of any Right Certificate (or, prior to the Distribution Date,
of the Common Shares) may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States or of the State of New York,
Pennsylvania or Florida (or of any other State of the United States) so long as
such corporation is authorized to do business as a banking institution in the
State of New York, Pennsylvania or Florida, in good standing, having an office
in the State of New York, Pennsylvania or Florida, which is authorized under
such laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $10 million; provided, that the principal transfer agent for the Common
Shares shall in any event be qualified to be the Rights Agent. After
appointment, the successor rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares or
Preferred Shares, and mail a notice thereof in writing to the registered holders
of the Right Certificates (or, prior to the Distribution Date, of the Common
Shares). Failure to give any notice provided for in this Section 21, however, or
any defect therein, shall not affect the legality of validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
Section 2. EFFECTIVENESS.
This First Amendment will become effective as of June 1, 1997.
Section 3. MISCELLANEOUS.
A. FULL FORCE AND EFFECT.
Except as expressly provided in this First Amendment, the Rights
Agreement will remain unchanged and in full force and effect.
B. COUNTERPARTS.
This First Amendment may be executed in any number of counterparts,
all of which taken together will constitute One and the same
instrument, and any of the parties hereto may execute this First
Amendment by signing any such counterpart.
C. FLORIDA LAWS.
It is the intention of the parties that the laws of Florida will
govern the validity of this First Amendment, the construction of its
terms, and the interpretation of the rights and duties of the parties.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
ATTEST: CRYOLIFE, INC.
By: /s/ Ronald D. McCall By: /s/ Steven G. Anderson
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RONALD D. McCALL STEVEN G. ANDERSON
Title: Secretary & Director Its President, Chairman and Chief
Executive Officer
ATTEST: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Susan Silber By: /s/ Herbert J. Lemmer
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SUSAN SILBER HERBERT J. LEMMER
Its Vice President
Title: Assistant Secretary
Printed Name: Herbert J. Lemmer
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Vice President