EXHIBIT 5.1
ARNALL
GOLDEN GREGORY LLP
171
17TH
STREET, NW
SUITE
2100
ATLANTA,
GEORGIA 30363-1031
TELEPHONE
(404) 873-8500 – FACSIMILE (404) 873-8501
November
21, 2008
CryoLife,
Inc.
1655
Roberts Boulevard, N.W.
Kennesaw,
Georgia 30144
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Re:
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REGISTRATION
STATEMENT ON FORM S-3
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Dear
Ladies and Gentlemen:
We have acted as counsel to CryoLife,
Inc., a Florida corporation (the "Company"), in connection with the preparation
of the Registration Statement on Form S-3 filed on the date hereof (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") by the Company on November 21, 2008. The Registration Statement
relates to the issuance and sale from time to time, pursuant to Rule 415 of
the General Rules and Regulations promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), of an indeterminate amount, with an aggregate
offering price not to exceed $50,000,000, of the following securities:
(i) common stock, par value $0.01 per share, of the Company ("Common
Stock") and (ii) one or more classes or series of preferred stock, par
value $0.01 per share, of the Company ("Preferred Stock"), interests in which
may be represented by depositary shares of the Company ("Depositary Shares,” and
together with the Common Stock and Preferred Stock, “Securities”).
The Depositary Shares will be issued
under a depositary agreement in a form that will be filed as an exhibit to a
post-effective amendment to the Registration Statement or a report on Form 8-K
incorporated by reference therein (a "Depositary Agreement").
This opinion is delivered in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act.
We have examined (i) the
Registration Statement; (ii) the Amended and Restated Articles of
Incorporation of the Company as currently in effect (the "Articles of
Incorporation"); (iii) the Amended and Restated Bylaws of the Company as
currently in effect (the "Bylaws") and (iv) the resolutions adopted by the
Board of Directors of the Company (the "Board") relating to the Registration
Statement and the issuance of the Securities (the "Board Resolutions"). We have
also examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements, certificates
of public officials, certificates of officers or other representatives of the
Company and others, and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
November
21, 2008
Page 2
In our examination, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, conformed or
photostatic copies, or as retrieved from the Commission's EDGAR database, and
the authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all their obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof. As to any facts material to the opinions expressed herein which were
not independently established or verified, we have, with your consent, relied
upon oral or written statements and representations of officers and other
representatives of the Company and others.
In our capacity as your counsel in
connection with the Registration Statement, we are familiar with the proceedings
taken and proposed to be taken by the Company in connection with the
Registration Statement and the authorization and issuance of the Securities. For
purposes of this opinion, we have assumed that such proceedings will be timely
and properly completed, in accordance with all requirements of applicable laws,
in the manner presently proposed.
Based upon the foregoing and in
reliance thereon, and subject to the qualifications and limitations set forth
herein, we are of the opinion that:
1. With
respect to any offering of Common Stock (the "Offered Common Stock"), the shares
of the Offered Common Stock will be duly and validly authorized, legally issued,
fully paid and nonassessable, provided that the consideration therefor is not
less than the par value thereof.
2. With
respect to any offering of any series of Preferred Stock (the "Offered Preferred
Stock"), when the Certificate of Designations (as hereinafter defined) has been
duly filed with the Secretary of State of the State of Florida, the shares of
the Offered Preferred Stock will be duly and validly authorized, legally issued,
fully paid and nonassessable, provided that the consideration therefor is not
less than the par value thereof.
3. With
respect to any offering of any series of Depositary Shares (the "Offered
Depositary Shares"), when (i) the Deposit Agreement relating to the Offered
Depositary Shares has been duly executed and delivered as contemplated by the
Board Resolutions or other action by the Board or a duly appointed committee
thereof; and (ii) the Preferred Stock that is represented by the Offered
Depositary Shares is duly authorized, validly issued and delivered to the
Depositary in accordance with the laws of the State of Florida, (1) the
Offered Depositary Shares will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and (2) when
the receipts evidencing the Offered Depositary Shares ("Receipts") are duly
issued against the deposit of the Preferred Stock in accordance with the Deposit
Agreement, such Receipts will be validly issued and will entitle the holders
thereof to the rights specified therein and in the Deposit
Agreement.
The opinions set forth herein are
subject to the following assumptions, qualifications, limitations and exceptions
being true and correct at or prior to the time of the delivery of any Securities
offered pursuant to the Registration Statement (collectively, the "Offered
Securities"): (i) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company shall have duly established the
terms of the Offered Securities and duly authorized and taken any other
necessary corporate action to approve the issuance and sale of the Offered
Securities and related matters (including without limitation with respect to
Offered Preferred Stock, the execution, acknowledgment and filing of a
Certificate of Designations (the "Certificate of Designations") in accordance
with the applicable provisions of the General Corporation Law of the State of
Florida) and such authorizations and actions have not been rescinded;
(ii) the terms of the issuance and sale of the Offered Securities have been
duly established in conformity with the Articles of Incorporation, the Bylaws,
any applicable Depositary Agreement, and any other relevant agreement so as not
to violate any applicable law, the Articles of Incorporation or the Bylaws
(subject to the further assumption that the Articles of Incorporation and the
Bylaws have not been amended from the date hereof in a manner that would affect
the validity of any of the opinions rendered herein), or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any restriction imposed by any court or governmental body
having jurisdiction over the Company; (iii) the Offered Securities, and any
certificates or receipts representing the interests in the relevant Offered
Securities, have been duly authenticated, executed, countersigned, registered
and delivered upon payment of the agreed-upon consideration therefor and have
been duly issued and sold in accordance with any relevant agreement, any
underwriting agreement with respect to the Offered Securities or any other duly
authorized, executed and delivered, applicable, valid and binding purchase
agreement, or as otherwise contemplated by the Registration Statement or any
post-effective amendment thereto, and any Prospectus Supplement relating
thereto; (iv) the Registration Statement (including all necessary
post-effective amendments) will have been declared, or otherwise have become,
effective under the Act and such effectiveness shall not have been terminated or
rescinded; (v) an appropriate Prospectus Supplement will have been
prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder describing the Offered Securities
offered thereby; (vi) the Offered Securities will be issued and sold in
compliance with applicable Federal and state securities laws and solely in the
manner stated in the Registration Statement and the applicable Prospectus
Supplement and there will not have occurred any change in law affecting the
validity of the opinions rendered herein; (vii) if the Offered Securities
will be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Securities in the form filed
as an exhibit to the Registration Statement or any post-effective amendment
thereto, or incorporated by reference therein, shall have been duly authorized,
executed and delivered by the Company and the other parties thereto; and
(viii) in the case of a Certificate of Designation, Deposit Agreement or
other agreement or instrument pursuant to which any Securities are to be issued,
there shall be no terms or provisions contained therein which would affect the
validity of any of the opinions rendered herein.
We also have assumed that any
Deposit Agreement will be duly authorized, executed and delivered by the
Depositary, and the Depositary Receipts will be duly signed by the
Depositary.
The foregoing opinions are limited to
the laws of the State of Florida and the federal laws of the United States of
America and we are expressing no opinion as to the effect of the laws of any
other jurisdiction, domestic or foreign. The Securities may be issued from time
to time on a delayed or continuous basis, but this opinion is limited to the
laws, including the rules and regulations thereunder, as in effect on the date
hereof. We disclaim any obligation to advise you of any change in any of these
sources of law or subsequent legal or factual developments which might affect
any matters or opinions set forth herein.
Any opinion set forth herein as to
enforceability of obligations of the Company is subject to: (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and the discretion of the court before which any
proceedings therefor may be brought (such principles of equity are of general
application, and in applying such principles, a court might include a covenant
of good faith and fair dealing and apply concepts of reasonableness and
materiality); (ii) provisions of law that may require that a judgment for
money damages rendered by a court in the United States be expressed only in U.S.
dollars; and (iii) governmental authority to limit, delay or prohibit the
making of payments outside the United States or in foreign currency or composite
currency. Rights to indemnification and contribution may also be limited by
Federal and state securities laws.
We express no opinion as to the
validity, legally binding effect or enforceability of any provision in any
agreement or instrument that (i) requires or relates to payment of any
interest at a rate or in an amount which a court would determine in the
circumstances under applicable law to be commercially unreasonable or a penalty
or a forfeiture or (ii) relates to governing law and submission by the
parties to the jurisdiction of one or more particular courts.
We hereby consent to the filing of this
opinion with the Commission as Exhibit 5.1 to the Registration Statement.
We also consent to the reference to our firm under the heading "Legal Matters"
in the Registration Statement. In giving this consent, we do not thereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
November
21, 2008
Page 5
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Sincerely,
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ARNALL
GOLDEN GREGORY LLP
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/s/
ARNALL GOLDEN GREGORY
LLP |