EXHIBIT 10.1 NONCOMPETITION AGREEMENT This NONCOMPETITION AGREEMENT (the "Agreement") is entered into this 11th day of September, 1996, by and between United Cryopreservation Foundation, Inc., a non-profit Illinois corporation ("UCFI"), and CryoLife, Inc., a Florida corporation ("CryoLife"). W I T N E S S E T H: WHEREAS, pursuant to that certain Asset Purchase Agreement (the "Purchase Agreement") dated as of September 11, 1996, by and among CryoLife and UCFI, CryoLife has agreed to purchase and UCFI has agreed to sell, substantially all of the assets of UCFI; WHEREAS, United Transplant Foundation, Inc. ("UTF") and QV, Inc. ("QV") are the sole members of UCFI; WHEREAS, in order to induce CryoLife to enter into and consummate the Purchase Agreement, UCFI, UTF, and QV have each agreed to accept certain restrictions as set forth herein and in those certain Non-Competition Agreements of even date herewith between CryoLife and UTF and between CryoLife and QV. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. DEFINITIONS. The following definitions shall apply to this Agreement: (a) "Company Business" means the business of processing, preserving, and/or distributing cryopreserved heart valves, saphenous veins, or femoral veins for implantation in humans. Company Business shall not include any other business activities, including, without limitation, the processing, procuring and/or distributing of bone or any tissue or organ other than cryopreserved heart valves, saphenous veins, or femoral veins for implantation in humans. (b) "Competing Business" means any person, concern, or entity that is engaged in or conducts a business substantially the same as the Company Business. (c) "Territory" means Arizona, Arkansas, California, Colorado, Illinois, Indiana, Kentucky, Louisiana, Missouri, New York, North Carolina, Pennsylvania, Tennessee, Texas, and Virginia, which the parties hereby acknowledge to be the geographic area in which UCFI conducts the Company Business on the date of this Agreement. 378489.1 (d) "Trade Secrets" means information including, but not limited to, technical and nontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, pricing information, marketing information, and lists of actual or potential customers or suppliers which (1) derives economic value, actual or potential, from not being generally known to or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 2. COVENANTS OF THE SELLER. UCFI acknowledges that, by virtue of the special knowledge of the affairs, business, customers, suppliers and vendors and the operations of the Company Business that UCFI has, CryoLife would suffer substantial damage if UCFI breaches or violates any of the covenants and agreements set forth in this Section 2. Therefore, UCFI has agreed to the following covenants and agreements: (a) UCFI covenants that it shall not, for a period of five years from and after the date hereof (the "Noncompetition Period"), directly or indirectly, in the Territory, for its own account or as an owner, partner, member, stockholder, joint venturer, investor, lender, or in any other capacity, own, engage in, conduct, manage, operate or participate in any Competing Business. (b) During the Noncompetition Period, UCFI covenants and agrees that it will not, directly or indirectly, on its own behalf or in the service or on behalf of others, solicit, divert or appropriate to a Competing Business, or attempt to solicit, divert or appropriate to or for any Competing Business, any persons and/or entities who were customers of UCFI in the Territory on the date immediately preceding the date of this Agreement, or any person and/or entity in the Territory to whom UCFI has sold or provided any products or services during the 12 month period immediately preceding the date of this Agreement. (c) During the Noncompetition Period, UCFI covenants and agrees that it will not, directly or indirectly, on its own behalf or in the service or on behalf of others, hire or attempt to hire any employee of CryoLife, or to cause any such employee to leave his or her employment, in order to perform services in the Territory for a Competing Business. 3. SEVERABILITY. Each provision of this Agreement is severable, and if any one of such provisions shall be reformed or declared unenforceable, such reformation or declaration shall not affect the enforceability or validity of any other provision thereof. Each provision thereof shall be enforceable by CryoLife or any successor thereof against UCFI notwithstanding any claim or cause of action asserted by UCFI against CryoLife or any successor thereof. The existence of any claim, demand, action, or cause of action of UCFI against CryoLife shall not constitute a defense to the enforcement by CryoLife of any of the covenants contained herein. 378489.1 -2- 4. REFORMATION BY COURT. In the event any court of competent jurisdiction should determine that any of the terms of this Agreement are unreasonable or unenforceable in scope, UCFI and CryoLife consent to the exercise by such court of its equitable jurisdiction to reform such terms in accordance with applicable law. 5. REMEDIES. UCFI agrees that if it breaches any provision of this Agreement, the damage to CryoLife would be difficult to ascertain, and money damages would not afford CryoLife an adequate remedy. Therefore, if UCFI is in breach of this Agreement, the parties hereto agree that CryoLife is entitled, in addition to any and all rights and remedies as would be provided by law, to specific performance, injunctive, and other equitable relief to prevent or restrain a breach of this Agreement. In addition, the parties agree that this Agreement constitutes an Asset Purchase Transaction Document as such term is defined in the Purchase Agreement. The rights of CryoLife under this Agreement shall survive the expiration of the Noncompetition Period and are in addition to, and not in lieu of, any and all rights CryoLife may have at law or in equity to protect its business interests. UCFI agrees to be liable for any and all costs and expenses, including attorneys fees, resulting from the breach by UCFI of any provision of this Agreement. 6. CONFIDENTIAL INFORMATION. UCFI covenants and agrees that all confidential and proprietary information developed, utilized, or received by UCFI relating to the operation of the Company Business by UCFI prior to the Closing of the Purchase Agreement, including, without limitation, all Trade Secrets and all information which has been disclosed to UCFI by a third party and which UCFI has treated as confidential (collectively, "Confidential Information"), and all physical embodiments thereof, has been transferred to CryoLife pursuant to the Purchase Agreement. UCFI will hold such Confidential Information in trust and strictest confidence, and will not use, reproduce, distribute, disclose or otherwise disseminate the Confidential Information. The confidentiality requirements and use restrictions contained in this Section 6 shall survive any termination of this Agreement but shall not apply (i) to any Confidential Information that falls into the public domain through no fault of UCFI or (ii) to any Confidential Information which is not a Trade Secret when a period of five years has expired following the execution of this Agreement. All records, notes, files, memoranda, reports, marketing information, price lists, supplier lists and information, documents, and all copies and like items relating to the Trade Secrets which shall be disclosed to or which shall come into the possession of UCFI during or prior to the Noncompetition Period shall be the sole and exclusive property of CryoLife. UCFI agrees that, at any time upon request, it will promptly deliver to CryoLife the originals and all copies of any of the foregoing that are in its possession, custody or control. 7. AMENDMENTS. No amendment or modification of this Agreement shall be valid or binding upon CryoLife unless made in writing and signed by a duly authorized officer of CryoLife, or upon UCFI, unless made in writing and signed by UCFI. 378489.1 -3- 8. ASSIGNMENT. This Agreement may not be assigned by any party without the prior written consent of the other party hereto, provided that CryoLife may assign this Agreement in whole or in part to one or more affiliates thereof without the consent of UCFI. 9. NOTICES. (a) Any and all notices or other communications required or permitted to be given under any of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given when (i) personally delivered or sent by a recognized overnight delivery service which guarantees next day delivery ("Overnight Delivery"), (ii) transmitted by facsimile transmission (with a copy sent first class registered or certified mail, return receipt requested and postage prepaid or by Overnight Delivery), or (iii) mailed by first class registered or certified mail, return receipt requested, postage prepaid, transmitted or addressed to the parties at the addresses set forth below: If to UCFI: QV, Inc. 322 South Green Street Suite 500 Chicago, Illinois 60607 Attention: President Telefax: (312) 697-8477 with a copy to: Katten Muchin & Zavis 525 West Monroe Street Suite 1600 Chicago, Illinois 60661 Attention: Mr. Steven R. Olsen Telefax: (312) 902-1061 If to CryoLife: Mr. Steven G. Anderson Chairman of the Board, Chief Executive Officer and President CryoLife, Inc. 2211 New Market Parkway, Suite 142 Marietta, Georgia 30067 Telefax: (770) 850-0762 with a copy to: Arnall Golden & Gregory 2800 One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3400 Attention: Ms. M. Nan King Telefax: (404) 873-8775 378489.1 -4- (b) All notices shall be deemed received (i) if personally delivered or transmitted by facsimile, on the business day when so delivered or transmitted or if not transmitted at a time which concludes during the business day of the recipient, on the next succeeding business day, (ii) if sent by Overnight Delivery, one business day after it is sent and (iii) if mailed, 48 hours after deposit in the United States mail, as first class registered or certified mail, return receipt requested, postage pre-paid. Either party may change its address for the purposes of this Section by giving not less than ten days prior written notice of such change to the other party in the manner provided in this Section. 10. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed and delivered this Agreement as of the date set forth above. UCFI: UNITED CRYOPRESERVATION FOUNDATION, INC. By:/s/ Daniel Woods ------------------- Daniel Woods Title: Vice President/General Manager CRYOLIFE, INC. By:/s/ Steven G. Anderson ------------------------- Steven G. Anderson Chairman of the Board Chief Executive Officer and President 378489.1 -5-