Page 24 of 83 Pages
EXHIBIT E
________________________________________________________________________________
SERIES B CONVERTIBLE PREFERRED STOCK
AND WARRANT PURCHASE AGREEMENT
among
INTEGRA LIFESCIENCES CORPORATION,
QUANTUM INDUSTRIAL PARTNERS LDC,
and
SFM DOMESTIC INVESTMENTS LLC
______________________________________________
Dated: March 29, 1999
______________________________________________
________________________________________________________________________________
Page 25 of 83 Pages
TABLE OF CONTENTS
Page
____
SECTION I. PURCHASE AND SALE OF SERIES BPREFERRED STOCK
AND WARRANTS.......................................................................6
1.1 Purchase and Sale of Series B Preferred Stock and Warrants.........................6
1.2 Certificate of Designation.........................................................7
1.3 Additional Preferred Stock.........................................................7
1.4 Closing............................................................................7
SECTION II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................................8
2.1 Corporate Existence and Power......................................................8
2.2 Corporate Authorization; No Contravention..........................................8
2.3 Governmental Authorization; Third Party Consents...................................8
2.4 Binding Effect.....................................................................9
2.5 Litigation.........................................................................9
2.6 Compliance with Laws...............................................................9
2.7 Capitalization....................................................................10
2.8 No Default or Breach..............................................................11
2.9 Taxes.............................................................................11
2.10 Financial Statements..............................................................11
2.11 No Material Adverse Change; Ordinary Course of Business...........................11
2.12 SEC Documents.....................................................................12
2.13 Investment Company................................................................12
2.14 Private Offering..................................................................12
2.15 Employee Benefit Plans............................................................12
2.16 Title to Assets...................................................................12
2.17 Intellectual Property.............................................................13
2.18 Trade Relations...................................................................13
2.19 Contracts and Other Agreements....................................................14
2.20 Liabilities.......................................................................14
2.21 Broker's, Finder's or Similar Fees................................................14
2.22 Disclosure; Agreement and Other Documents.........................................14
2.23 NeuroCare Acquisition Agreement...................................................15
Page 26 of 83 Pages
SECTION III. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS........................................................................15
3.1 Existence and Power...............................................................15
3.2 Authorization; No Contravention...................................................15
3.3 Governmental Authorization; Third Party Consents..................................15
3.4 Binding Effect....................................................................15
3.5 Purchase for Own Account..........................................................16
3.6 Accreditation; Sophistication; Other Securities Laws Matters......................16
3.7 Broker's, Finder's or Similar Fees................................................16
SECTION IV. CONDITIONS TO THE OBLIGATION OF THE PURCHASERS
TO CLOSE ......................................................................17
4.1 Representations and Warranties....................................................17
4.2 Compliance with this Agreement....................................................17
4.3 Secretary's Certificate...........................................................17
4.4 Officers' Certificate.............................................................17
4.5 Documents.........................................................................18
4.6 Filing of Certificate of Designation..............................................18
4.7 Registration Rights Agreement.....................................................18
4.8 Opinion of Counsel................................................................18
4.9 Approval of Counsel to the Purchasers.............................................18
4.10 Purchased Shares..................................................................18
4.11 Warrants..........................................................................18
4.12 Consents and Approvals............................................................18
4.13 No Litigation.....................................................................19
4.14 No Material Judgment or Order.....................................................19
4.15 No Material Adverse Change........................................................19
4.16 Neurocare Acquisition.............................................................19
SECTION V. CONDITIONS TO THE OBLIGATIONOF THE COMPANY TO
CLOSE.............................................................................19
5.1 Representations and Warranties....................................................19
5.2 Compliance with this Agreement....................................................20
5.3 Registration Rights Agreement.....................................................20
5.4 Consents and Approvals............................................................20
5.5 Payment of Purchase Price.........................................................20
5.6 No Material Judgment or Order.....................................................20
5.7 Opinion of Counsel................................................................20
SECTION VI. INDEMNIFICATION...................................................................21
6.1 Indemnification...................................................................21
6.2 Notification......................................................................21
6.3 Registration Rights Agreement.....................................................22
Page 27 of 83 Pages
SECTION VII. AFFIRMATIVE COVENANTS.............................................................22
7.1 Preservation of Existence.........................................................22
7.2 Delivery of 1998 Audited Financial Statements.....................................23
7.3 Financial Statements and Other Information........................................23
7.4 Reservation of Shares.............................................................24
7.5 Registration and Listing..........................................................25
7.6 Board Representation..............................................................25
7.7 Director and Officer Liability Insurance..........................................25
SECTION VIII. TERMINATION OF AGREEMENT..........................................................25
8.1 Termination.......................................................................25
8.2 Survival..........................................................................26
SECTION IX. MISCELLANEOUS.....................................................................26
9.1 Survival of Representations and Warranties........................................26
9.2 Notices...........................................................................27
9.3 Successors and Assigns............................................................28
9.4 Amendment and Waiver..............................................................29
9.5 Counterparts......................................................................29
9.6 Headings..........................................................................29
9.7 GOVERNING LAW.....................................................................29
9.8 Severability......................................................................29
9.9 Rules of Construction.............................................................29
9.10 Entire Agreement..................................................................29
9.11 Fees..............................................................................30
9.12 Publicity; Confidentiality........................................................30
9.13 Further Assurances................................................................31
9.14 Schedules.........................................................................31
Page 28 of 83 Pages
EXHIBITS
--------
A Form of Warrant
B Certificate of Designation
C Amended and Restated Registration Rights Agreement
D Form of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ Opinion
E Form of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Opinion
SCHEDULES
---------
1 Purchased Shares and Warrants and Purchase Price
2.5 Litigation
2.7 Capitalization
2.8 No Default or Breach
2.11 No Material Adverse Change; Ordinary Course of Business
2.16 Title to Assets
2.17(a) Intellectual Property
2.17(b) Infringements of Integra
2.17(c) Intellectual Property Litigation
2.18 Trade Relations
2.19 Contracts and other Agreements
Page 29 of 83 Pages
SERIES B CONVERTIBLE PREFERRED STOCK
AND WARRANT PURCHASE AGREEMENT
THIS SERIES B CONVERTIBLE PREFERRED STOCK AND WARRANT PURCHASE
AGREEMENT (this "Agreement") is made as of March 29, 1999 by and among Integra
---------
LifeSciences Corporation, a Delaware corporation ("Integra"), and the several
-------
purchasers listed on Schedule 1 hereto (the "Purchasers").
---------- ----------
WHEREAS, Integra has agreed to issue and sell to each of the
Purchasers, and each of the Purchasers has agreed to purchase from Integra, for
the aggregate purchase price set forth opposite such Purchaser's name on
Schedule 1 hereto, (i) the aggregate number of shares of Series B Convertible
----------
Preferred Stock, par value $.01 per share, of Integra (the "Series B Preferred
------------------
Stock") set forth opposite such Purchaser's name on Schedule 1 hereto, and (ii)
----- ----------
the warrant (the "Warrant") to purchase, subject to the terms and conditions
-------
thereof, the aggregate number of shares of Common Stock, par value $.01 per
share, of Integra (the "Common Stock") set forth opposite such Purchaser's name
------------
on Schedule 1 hereto, at an exercise price of $3.82 per share, containing terms
----------
and conditions set forth in the form of warrant attached hereto as Exhibit A.
---------
NOW, THEREFORE, in consideration of the mutual terms and
conditions herein contained, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
DEFINITIONS
For all purposes of this Agreement, unless otherwise expressly
provided, (a) the terms defined in this Definitions section have the meanings
assigned to them herein and include the plural as well as the singular, (b) all
accounting terms not otherwise defined herein have the meanings assigned under
generally accepted accounting principles in the United States, (c) all
references in this Agreement to designated "Sections" and other subdivisions are
to the designated Sections and other subdivisions of the body of this Agreement,
(d) pronouns of either gender or neuter shall include, as appropriate, the other
pronoun forms, and (e) the words "herein", "hereof" and other words of similar
import refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision.
As used in this Agreement, the following definitions shall
apply:
"Additional Preferred Stock" shall mean the convertible
-----------------------------
preferred stock issued pursuant to Section 1.3 having substantially identical
terms as the Series B Preferred Stock.
Page 30 of 83 Pages
"Action" means any action, complaint, petition, investigation,
------
suit or other proceeding, whether civil or criminal, in law or in equity, or
before any arbitrator or Governmental Entity.
"Affiliate" shall mean any Person who is an "affiliate" (as
---------
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act) of, and any Person controlling, controlled by, or under common control
with, any Purchaser. For the purposes of this Agreement, "control" includes the
ability to have investment discretion through contractual means or by operation
of law.
"Agreement" means this Agreement as the same may be amended,
---------
supplemented or modified in accordance with the terms hereof.
"Audited Financial Statements" has the meaning set forth in
------------------------------
Section 7.2 of this Agreement.
"Board of Directors" means the Board of Directors of Integra.
------------------
"Business" means the business of Integra and shall be deemed
--------
to include any of the following incidents of such business: income, operations,
condition (financial or other), assets, properties and liabilities.
"Business Day" means any day other than a Saturday, Sunday or
------------
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"By-laws" means the amended and restated by-laws of Integra,
-------
as the same may have been amended and as in effect on the Closing Date.
"CEO Certificate" has the meaning set forth in Section 1.3 of
----------------
this Agreement.
"Certificate of Designation" means the Certificate of
------------------------------
Designation with respect to the Series B Preferred Stock adopted by the Board of
Directors and filed with the Secretary of State of the State of Delaware on or
before the Closing Date substantially in the form attached hereto as Exhibit B.
"Certificate of Incorporation" means the Amended and Restated
----------------------------
Certificate of Incorporation of Integra, as the same has been amended and as in
effect on the Closing Date.
"Closing" has the meaning set forth in Section 1.4 of this
-------
Agreement.
"Closing Date" means the date specified in Section 1.4 of this
------------
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or
----
any successor statute thereto.
Page 31 of 83 Pages
"Commission" means the Securities and Exchange Commission or
----------
any similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Common Stock, par value $.01 per
-------------
share, of Integra and any other capital stock of Integra into which such stock
is reclassified or reconstituted.
"Condition of Integra" means the assets, business, properties,
--------------------
operations or financial condition of Integra and the Subsidiaries, taken as a
whole.
"Contract" means any agreement, arrangement, bond, commitment,
--------
franchise, indemnity, indenture, instrument, lease, license or understanding,
whether or not in writing.
"Contractual Obligations" means as to any Person, any
-------------------------
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument to
which such Person is a party or by which it or any of its property is bound.
"Conversion Price" has the meaning set forth in Section 1.3 of
----------------
this Agreement.
"Encumbrance" means any claim, charge, easement, encumbrance,
-----------
lease, covenant, security interest, lien, option, pledge, rights of others,
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise, except
for any restrictions on transfer generally arising under any applicable United
States federal or state securities law.
"Environmental Laws" means federal, state and local laws,
-------------------
principles of common law, regulations and codes, as well as orders, decrees,
judgments or injunctions issued, promulgated, approved or entered thereunder
relating to pollution, protection of the environment or public health and
safety.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended (or any successor statute thereto).
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended (or any successor statute thereto), and the rules and regulations of the
Commission promulgated thereunder.
"Financial Statements" has the meaning set forth in Section
---------------------
2.10 of this Agreement.
Page 32 of 83 Pages
"GAAP" means generally accepted United States accounting
----
principles in effect from time to time.
"Governmental Authority" means the government of any state,
-----------------------
city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Governmental Entity" means any government or any agency,
--------------------
bureau, board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government of or within the United
States, whether federal, state or local.
"Initial Term" has the meaning set forth in Section 1.3 of
-------------
this Agreement.
"Law" means any constitutional provision, statute or other
---
law, rule, regulation, or interpretation of any Governmental Entity and any
Order.
"Liabilities" has the meaning set forth in Section 2.20 of
-----------
this Agreement.
"Lien" means any mortgage, deed of trust, pledge,
----
hypothecation, assignment, encumbrance, lien (statutory or other) or preference,
priority, right or other security interest or preferential arrangement of any
kind or nature whatsoever (excluding preferred stock and equity related
preferences) including, without limitation, those created by, arising under or
evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a Capital Lease Obligation, or any financing lease
having substantially the same economic effect as any of the foregoing.
"Loss" means any action, cost, damage, disbursement, expense,
----
liability, loss, deficiency, diminution in value, obligation, penalty or
settlement of any kind or nature, whether foreseeable or unforeseeable,
including but not limited to, interest or other carrying costs, penalties,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by the
specified Person.
"NASDAQ" means the Nasdaq National Market of the National
------
Association of Securities Dealers, Inc. Automated Quotation System.
Page 33 of 83 Pages
"NeuroCare Acquisition Agreement" means the Asset Purchase
---------------------------------
Agreement dated the date hereof between the Company, Integra NeuroCare LLC, a
Delaware limited liability company and an indirect wholly-owned subsidiary of
the Company ("IN LLC"), ▇▇▇▇▇▇▇ NeuroCare LLC, a Delaware limited liability
company and a wholly-owned subsidiary of IN LLC, ▇▇▇▇▇-▇▇▇▇▇▇▇ NeuroCare, L.P.,
a Delaware limited partnership ("HSN, LP"), and Neuro Navigational, L.L.C., a
Delaware limited liability company and a wholly-owned subsidiary of HSN, LP.
"Order" mans any decree, injunction, judgement, order, ruling,
-----
assessment or writ of any Governmental Entity.
"Person" means any individual, firm, corporation, partnership,
------
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Purchased Shares" has the meaning set forth in Section 1.1 of
----------------
this Agreement.
"Purchasers" has the meaning ascribed to such term in the
----------
recital to this Agreement.
"Put Right" has the meaning set forth in Section 1.3 of this
----------
Agreement.
"Registration Rights Agreement" means the Registration Rights
------------------------------
Agreement substantially in the form attached hereto as Exhibit C.
---------
"Requirements of Law" means as to any Person, any law, treaty,
-------------------
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or a
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"SEC" means the Securities and Exchange Commission or any
---
successor entity.
"SEC Documents" means all registration statements, proxy
--------------
statements, reports and other documents required to be filed by Integra under
the Securities Act or the Exchange Act, and all amendments and supplements
thereto, filed by Integra with the Commission since December 31, 1997.
Page 34 of 83 Pages
"Second Term" has the meaning set forth in Section 1.3 to this
-----------
Agreement.
"Securities" means the Purchased Shares, the shares of Common
----------
Stock issuable upon conversion of the Purchased Shares, the Warrants, the
Warrant Shares and the Additional Preferred Shares.
"Securities Act" means the Securities Act of 1933, as amended
---------------
(or any successor statute thereto), and the rules and regulations of the
Commission promulgated thereunder.
"Series B Preferred Stock" has the meaning assigned to such
-------------------------
term in the recital to this Agreement.
"Subsidiary" means, as of the relevant date of determination,
----------
with respect to any Person, a corporation or other entity of which 50% or more
of the voting power of the outstanding voting equity securities or 50% or more
of the outstanding economic equity interest is held, directly or indirectly, by
such Person. Unless otherwise qualified, or the context otherwise requires, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Integra.
"Transaction Documents" means collectively, this Agreement,
----------------------
the Warrants, the Certificate of Designation and the Registration Rights
Agreement.
"Warrant Shares" has the meaning set forth in Section 1.1 of
---------------
this Agreement.
"Warrants" has the meaning ascribed to such term in the
--------
recital to this Agreement.
SECTION I. PURCHASE AND SALE OF SERIES B
PREFERRED STOCK AND WARRANTS
I.1 Purchase and Sale of Series B Preferred Stock and
---------------------------------------------------------
Warrants. Subject to the terms and conditions herein set forth, Integra agrees
--------
to issue and sell to each of the Purchasers, and each of the Purchasers agrees
that it will purchase from Integra, for the aggregate purchase price set forth
opposite such Purchaser's name on Schedule 1 hereto, on the Closing Date, (i)
----------
the aggregate number of shares of Series B Preferred Stock set forth opposite
such Purchaser's name on Schedule 1 hereto (all of the shares of Series B
-----------
Preferred Stock being purchased pursuant hereto being referred to herein as
"Purchased Shares"), and (ii) the Warrant to purchase the aggregate number of
-----------------
shares of Common Stock set forth opposite such Purchaser's name on Schedule 1
----------
hereto (all of the shares of Common Stock issuable upon exercise of the Warrants
being purchased pursuant hereto being referred to herein as the "Warrant
-------
Shares").
------
Page 35 of 83 Pages
I.2 Certificate of Designation. The Purchased Shares will have
--------------------------
the rights, preferences, privileges and restrictions set forth in the
Certificate of Designation of Series B Preferred Stock to Integra's Certificate
of Incorporation attached hereto as Exhibit A (the "Certificate of
Designation"), which shall be filed by Integra with the Secretary of State of
the State of Delaware prior to the Closing (as hereinafter defined).
I.3 Additional Preferred Stock
--------------------------
(a) At any time within 180 days after the Closing Date
(the "Initial Term") on 14 days written notice, Integra will have the right (the
------------
"Put Right") to require the Purchasers (or certain Affiliates thereof) to
----------
purchase up to an additional $2,000,000 of convertible preferred stock having
substantially identical terms as the Series B Preferred Stock ("Additional
----------
Preferred Stock"), with each Purchaser purchasing that proportion of the
----------------
Additional Preferred Stock equal to such Purchaser's proportionate initial
investment in the Series B Preferred Stock, provided that the conversion price
for such Additional Preferred Stock shall be equal to the lesser of (i) the
Conversion Price, which initially shall be $3.82 per share of Common Stock, as
adjusted and then in effect (the "Conversion Price") or (ii) the average closing
----------------
price of Integra's Common Stock for the ten (10) trading days ending two days
prior to the date of issuance of the Additional Preferred Stock.
(b) If the Initial Term expires without the exercise of
the Put Right by Integra, such Put Right will continue for an additional 180
days (the "Second Term"), subject to the receipt by the Purchasers of a
------------
certificate from the Chief Executive Officer of Integra (the "CEO Certificate")
----------------
certifying that the representations and warranties contained in Section III of
this Agreement are true and correct in all material respects as of the exercise
date of the Put Right as if made on and as of such date and as if all references
to Purchased Shares include the Additional Preferred Stock, and that no material
adverse change in the Condition of Integra (other than operating losses
consistent with the historic results of Integra) has occurred since the Closing
Date.
I.4 Closing. Unless this Agreement shall have terminated
-------
pursuant to Section VIII and subject to the satisfaction or waiver of the
conditions set forth in Sections IV and V (except for Sections 4.10, 4.11 and
5.5, which shall occur simultaneously with the Closing (as hereinafter
defined)), the closing of the purchase and issuance of the Purchased Shares and
the Warrants (the "Closing") shall take place at the offices of Paul, Weiss,
-------
Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, at 10:00 a.m., local time, on March 29, 1999, or at
such time and on such date that Integra and the Purchasers may agree in writing
(the "Closing Date"). On the Closing Date, Integra shall deliver to the
-------------
Purchasers (a) stock certificates representing the Purchased Shares and (b) the
Warrants, against delivery by the Purchasers to Integra of the aggregate
purchase price therefor by wire transfer of immediately available funds.
Page 36 of 83 Pages
SECTION II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
Integra represents and warrants to the Purchasers as follows:
II.1 Corporate Existence and Power. Each of Integra and
-------------------------------
its Subsidiaries (a) is a corporation or limited liability company duly
incorporated and organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation; (b) has all requisite corporate (or
limited liability company) power and authority to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently engaged as described in the SEC Documents; (c) is duly qualified
as a foreign corporation or other entity, licensed and in good standing under
the laws of each jurisdiction in which its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the failure to do so or be so would not have a material adverse
effect on the Condition of Integra; and (d) has the requisite corporate (or
limited liability company) power and authority to execute, deliver and perform
its obligations under this Agreement and each of the other Transaction
Documents.
II.2 Corporate Authorization; No Contravention. The
----------------------------------------------
execution, delivery and performance by Integra of this Agreement and each of the
other Transaction Documents and the transactions contemplated hereby and
thereby, including, without limitation, the sale, issuance and delivery of the
Securities (a) are within Integra's corporate power and have been duly
authorized by all necessary corporate action of Integra; (b) do not contravene
the terms of the Certificate of Incorporation or By-laws, or any organizational
or governing documents, or any amendment thereof, of the Subsidiaries; (c) do
not violate, conflict with or result in any breach or contravention of or the
creation of any Lien under, any material Contractual Obligation of Integra or
any of its Subsidiaries, or any Requirement of Law applicable to Integra or any
of its Subsidiaries; and (d) do not violate any judgment, injunction, writ,
award, decree or order of any nature (collectively, "Orders") of any
Governmental Authority against, or binding upon, Integra or any of the
Subsidiaries except for those Orders the violation of which would not have a
material adverse effect on the Condition of Integra. Neither Integra nor any of
its Subsidiaries previously entered into any agreement which is currently in
effect or by which Integra is currently bound, granting any rights to any Person
which are inconsistent with the rights to be granted by Integra in this
Agreement and each of the other Transaction Documents.
II.3 Governmental Authorization; Third Party Consents.
---------------------------
Other than (a) the filing and approval of an application for the listing on
NASDAQ of the shares of Common Stock issuable upon conversion of the Purchased
Shares and the exercise of the Warrants, (b) the filing of the Certificate of
Page 37 of 83 Pages
Designation, (c) those required pursuant to the applicable state securities or
"blue sky" laws, with respect to the offer and sale of the Securities and (d)
with respect to the performance by Integra of the Registration Rights Agreement,
the registration of the Registrable Securities (as defined in the Registration
Rights Agreement) covered thereby with the Commission and the registration or
qualification of such Registrable Securities and other filings pursuant to
applicable state securities or "blue sky" laws, no approval, consent,
compliance, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person, including, without
limitation, any approval or authorization of Integra's stockholders, any further
approval of the Board of Directors or any approval of NASDAQ, and no lapse of a
waiting period under a Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the sale, issuance and delivery of the Securities) by Integra of
this Agreement, each of the other Transaction Documents and the transactions
contemplated hereby or thereby.
II.4 Binding Effect. This Agreement and each of the other
--------------
Transaction Documents have been duly executed and delivered by Integra and
constitute the legal, valid and binding obligations of Integra, enforceable
against Integra in accordance with their terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity relating to
enforceability (regardless of whether considered in a proceeding at law or in
equity).
II.5 Litigation. Except as set forth in the SEC Documents,
----------
the Financial Statements (including the draft notes thereto) or Schedule 2.5,
------------
there are no actions, suits, proceedings, claims, complaints, disputes or
investigations pending or threatened, at law, in equity, in arbitration or
before any Governmental Authority against Integra or any of its Subsidiaries and
with respect to which Integra or any of its Subsidiaries is responsible by way
of indemnity or otherwise, which would, if adversely determined, (a) have a
material adverse effect on the Condition of Integra or (b) have an adverse
effect on the ability of Integra to perform its obligations under this Agreement
and each of the other Transaction Documents. No Order has been issued by any
court or other Governmental Authority against Integra or any of its Subsidiaries
purporting to enjoin or restrain the execution, delivery or performance of this
Agreement or any of the other Transaction Documents.
II.6 Compliance with Laws.
--------------------
(a) Each of Integra and its Subsidiaries is in
compliance with all Requirements of Law in all respects, except to the extent
that the failure to comply with such Requirements of Law would not have a
material adverse effect on the Condition of Integra.
Page 38 of 83 Pages
(b) (i) Each of Integra and its Subsidiaries has
all licenses, permits, orders or approvals of any Governmental Authority
(collectively, "Permits") that are material to or necessary for the conduct of
the business of Integra in the manner described in the SEC Documents, except to
the extent that the failure to have such Permits would not have a material
adverse effect on the Condition of Integra; (ii) such Permits are in full force
and effect; and (iii) no violations are or have been recorded in respect of any
Permit.
(c) The property, assets and operations at any
time owned or leased by Integra have been in compliance in all material respects
with all applicable Environmental Laws, while so owned or leased, except to the
extent that the failure to comply with such Environmental Laws would not have a
material adverse effect on the Condition of Integra.
II.7 Capitalization.
--------------
(a) The authorized capital stock of Integra at
the close of business on March 22, 1999 consisted of (x) 60,000,000 shares of
Common Stock, of which 15,730,933 shares are issued and outstanding and (y)
15,000,000 shares of preferred stock, par value $.01 per share, of which (i)
2,000,000 shares have been designated as Series A Preferred Stock and of which
500,000 shares are issued and outstanding and (ii) 120,000 shares have been
designated as Series B Preferred Stock and of which no shares are issued and
outstanding. Integra has reserved an aggregate of 2,617,801 shares of Common
Stock for issuance upon conversion of the Purchased Shares and 240,000 shares of
Common Stock for issuance upon exercise of the Warrants. Except as set forth in
Schedule 2.7, there are no options, warrants, conversion privileges or other
------------
rights presently outstanding to purchase or otherwise acquire any authorized but
unissued or unauthorized shares or treasury shares of Integra's capital stock.
(b) There has been no change in the authorized,
issued and outstanding capital stock of Integra in the interval between March
22, 1999 and the Closing Date, except for shares of Common Stock issued upon the
exercise of warrants or options, or purchased by Integra pursuant to its current
share repurchase program.
(c) The Purchased Shares are duly authorized
and, when issued and sold to the Purchasers after payment therefor, will be
validly issued, fully paid and nonassessable by Integra. The shares of Common
Stock issuable upon conversion of the Purchased Shares and the exercise of the
Warrants are duly authorized and, when issued in compliance with the provisions
of this Agreement, the Certificate of Incorporation, the Certificate of
Designation (in the case of the shares of Common Stock issuable upon conversion
Page 39 of 83 Pages
of the Purchased Shares) and the Warrants (in the case of the Warrant Shares)
will be validly issued, fully paid and nonassessable by Integra. The issued and
outstanding shares of Common Stock are all duly authorized, validly issued,
fully paid and nonassessable by Integra, and were issued in compliance with the
registration and qualification requirements of all applicable federal securities
laws.
II.8 No Default or Breach. Except as set forth in Schedule
-------------------- --------
2.8, neither Integra nor any of its Subsidiaries has received notice of, and is
---
not in, default under or with respect to any, Contractual Obligation in any
respect, which, individually or together with all such defaults, could have a
material adverse effect on the Condition of Integra, or which could materially
adversely affect the ability of Integra to perform its obligations under this
Agreement or any of the other Transaction Documents.
II.9 Taxes. Each of Integra and its Subsidiaries has filed
-----
or caused to be filed, or has properly filed extensions for, all tax returns
which are required to be filed for federal, state, local and foreign tax
purposes and has paid or caused to be paid all taxes required to be paid by it
and all assessments received by it to the extent that such taxes have become
due, except taxes the validity or amount of which is being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside. Each of Integra and its Subsidiaries has paid or caused to
be paid, or has established reserves that are adequate in all material respects,
for all tax liabilities applicable to Integra and its Subsidiaries for all
fiscal years which have not been examined and reported on by the taxing
authorities (or closed by applicable statutes).
II.10 Financial Statements. Integra has heretofore
----------------------
delivered to the Purchasers true and correct copies of its unaudited
consolidated financial statements (balance sheet and statements of operations,
cash flows and shareholders' equity, together with draft notes thereto) for the
fiscal year ended and as at December 31, 1998 (the "Financial Statements"). The
--------------------
Financial Statements comply in all material respects with the requirements of
the Exchange Act and have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods indicated and with each other, except as
may be indicated therein or in the draft notes thereto. The Financial Statements
fairly present the consolidated financial condition, operating results and cash
flows of Integra as of the respective dates and for the respective periods
indicated in accordance with GAAP.
II.11 No Material Adverse Change; Ordinary Course of
-----------------------------------------------------
Business. Except as set forth in Schedule 2.11 hereto or the SEC Documents or as
-------- -------------
previously disclosed to the Purchasers in writing, (i) since December 31, 1998,
there has not been any material adverse change in the Condition of Integra
(other than the incurrence of operating losses consistent with historic results
of Integra) and (ii) since December 31, 1998, neither Integra nor any of its
Subsidiaries has participated in any transaction or acted outside the ordinary
course of business.
Page 40 of 83 Pages
II.12 SEC Documents.
-------------
(a) Integra has filed all SEC Documents required
to be filed by it since December 31, 1997 under the Securities Act or the
Exchange Act, and all amendments thereto.
(b) As of its filing date, each SEC Document
(including all exhibits and schedules thereto and documents incorporated by
reference therein), in each case as amended, referred to in subsection (a) above
(i) complied in all material respects with the applicable requirements of the
Exchange Act and (ii) did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. Integra is not aware of any issues raised by, or correspondence
(other than routine filing packages and cover letters) with, the Commission with
respect to any of the SEC Documents.
II.13 Investment Company. Integra is not an "investment
-------------------
company" within the meaning of the Investment Company Act of 1940, as amended.
II.14 Private Offering. No form of general solicitation or
----------------
general advertising was used by Integra or its representatives in connection
with the offer or sale of the Purchased Shares or the Warrants. No registration
of the Purchased Shares or the Warrants, pursuant to the provisions of the
Securities Act or any state securities or "blue sky" laws, is required on the
date hereof or on the Closing Date by the offer, sale or issuance of the
Securities. Integra hereby agrees that neither it nor anyone acting on its
behalf, will offer to sell the Purchased Shares or the Warrants or any other
security so as to require the registration of the Purchased Shares or the
Warrants, pursuant to the provisions of the Securities Act or any state
securities or "blue sky" laws, unless such securities are so registered.
II.15 Employee Benefit Plans. All employee benefit plans
-----------------------
(as defined in Section 3(3) of ERISA) or arrangements of Integra or any of the
Subsidiaries are in substantial compliance with all applicable Requirements of
Law. The execution and delivery of this Agreement and each of the other
Transaction Documents, the purchase and sale of the Purchased Shares hereunder
and the consummation of the transactions contemplated hereby and thereby will
not result in any prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code, assuming that none of the consideration
received by Integra pursuant to this Agreement is derived from the assets of any
employee benefit plan.
Page 41 of 83 Pages
II.16 Title to Assets. Except as set forth in Schedule
---------------- --------
2.16, each of Integra and its Subsidiaries has good title to all of its
----
properties and assets used in the business described in the SEC Documents and
reflected as owned on the Financial Statements or so described in any Schedule
hereto, in each case free and clear of any Lien, except for (a) Liens
specifically described on the notes to the Financial Statements and (b) Liens
not material to the Condition of Integra.
II.17 Intellectual Property.
---------------------
(a) Schedule 2.17(a) sets forth all United
------------------
States and foreign patents and patent applications, trademark and service mark
registrations and applications, and copyright registrations and applications
owned or licensed by Integra and all material licenses, sublicenses, and other
agreements or permissions ("IP Licenses") under which Integra is a licensor or
licensee or otherwise is authorized to use or practice any Intellectual Property
(as defined below).
(b) Except as set forth in Schedule 2.17(b),
-----------------
Integra owns or otherwise has the right to use, and will continue to own or
otherwise have the right to use immediately following the Closing, free and
clear of any and all Encumbrances, all United States and foreign patents and
patent applications, trademark and service mark registrations and applications,
copyright registrations and applications, trade secrets, know-how, software, and
other technology and proprietary rights (collectively, "Intellectual Property")
used in the operation of its business as described in the SEC Documents.
(c) Except as set forth on Schedule 2.17(c), to
----------------
the best of Integra's knowledge, Integra's use or licensing of the Intellectual
Property used in the operation of its business as described in the SEC Documents
does not infringe or otherwise violate any Intellectual Property rights of any
third party. Except as set forth on Schedule 2.17(c), no litigation is pending
----------------
and no claim has been made in writing against Integra or, to the best of
Integra's knowledge, is threatened contesting the right of Integra to sell or
license to third parties or use the Intellectual Property presently sold or
licensed to third parties or used by Integra.
(d) Integra has taken all reasonable precautions
to protect the secrecy, confidentiality, and value of its trade secrets and the
proprietary nature and value of its know-how, patents, and other technology.
Each employee and third party who has contributed to the development of
Intellectual Property on behalf of Integra has signed an agreement with Integra
stating that such employee or third party (i) shall maintain the confidentiality
of Integra's trade secrets and other confidential information, and (ii) assigns
to Integra all rights that such employee or third party might have in such
Intellectual Property, except where the terms of particular agreements provide
otherwise. To the knowledge of Integra, no such employee or third party has
materially breached any such agreement.
II.18 Trade Relations. Except as set forth in Schedule
---------------- --------
2.18, there exists no actual or threatened termination, cancellation or
----
limitation of, or any adverse modification or change in, the business
relationship of Integra or any of its Subsidiaries with, any customer or any
group of customers whose purchases are individually or in the aggregate material
to the business of Integra or any of its Subsidiaries, or with any material
supplier, and there exists no present condition or state of fact or
circumstances that would materially adversely affect the Condition of Integra or
prevent Integra from conducting its business after the consummation of the
transactions contemplated by this Agreement and each of the other Transaction
Documents, in substantially the same manner in which such business has
heretofore been conducted and described in the SEC Documents.
Page 42 of 83 Pages
II.19 Contracts and Other Agreements. All of the
------------------------------------
Contractual Obligations of Integra and any of its Subsidiaries that are
currently in effect and are required to be described in the SEC Documents or to
be filed as exhibits thereto are (a) described in the SEC Documents or filed as
exhibits thereto and (b) valid, subsisting, in full force and effect and binding
upon Integra or its Subsidiaries, as the case may be, and, to the knowledge of
Integra, the other parties thereto, in accordance with their terms. Except as
set forth on Schedule 2.19, Integra has paid in full or accrued all material
--------------
amounts currently due thereunder and has satisfied in full or provided for all
of its currently matured liabilities and obligations thereunder, and is not in
default under any of them. Except as set forth on Schedule 2.19, to the
--------------
knowledge of Integra, no other party to any such Contractual Obligation is in
breach thereof or in default thereunder nor does any condition exist that with
notice or lapse of time or both will constitute a breach thereof or default
thereunder by such other party, except for such breaches or defaults that would
not have a material adverse effect on the Condition of Integra.
II.20 Liabilities. As at December 31, 1998, neither Integra
-----------
nor any of its Subsidiaries had any direct or indirect obligation or liability
required by GAAP to be set forth on its financial statements or the footnotes
thereto (the "Liabilities") that were not fully and adequately reflected or
reserved against in the Financial Statements.
II.21 ▇▇▇▇▇▇'s, ▇▇▇▇▇▇'s or Similar Fees. There are no
--------------------------------------
brokerage commissions, finder's fees or similar fees or commissions payable by
Integra in connection with the transactions contemplated hereby based on any
agreement, arrangement or understanding with Integra or any of its Subsidiaries
or any action taken by any such entity.
Page 43 of 83 Pages
II.22 Disclosure; Agreement and Other Documents. This
----------------------------------------------
Agreement, each of the other Transaction Documents and each of the certificates
furnished to the Purchasers by Integra in connection with the purchase and sale
of the Purchased Shares and the Warrants at or prior to the Closing, taken as a
whole, do not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made, not
misleading.
II.23 NeuroCare Acquisition Agreement. Integra has
-----------------------------------
delivered to the Purchasers a true and complete copy of the NeuroCare
Acquisition Agreement, and all of the representations and warranties of Integra
as set forth therein shall be true and complete in all material respects as of
the date hereof and as at the Closing Date.
SECTION III. REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
-----------------
Each of the Purchasers hereby represents and warrants
(severally as to itself and not jointly) to Integra as follows:
III.1 Existence and Power. Such Purchaser that is an entity
-------------------
(a) is duly organized and validly existing under the laws of the jurisdiction of
its formation and (b) has the requisite power and authority to execute, deliver
and perform its obligations under this Agreement and each of the other
Transaction Documents to which it is a party.
III.2 Authorization; No Contravention. The execution,
----------------------------------
delivery and performance by such Purchaser of this Agreement and each of the
other Transaction Documents to which it is a party and the transactions
contemplated hereby and thereby, including, without limitation, the purchase of
the Purchased Shares and the Warrants, (a) have been duly authorized by all
necessary action, (b) do not contravene the terms of such Purchaser's
organizational documents, or any amendment thereof, and (c) do not violate,
conflict with or result in any breach or contravention of or the creation of any
Lien under, any Contractual Obligation of such Purchaser, or any Requirement of
Law applicable to such Purchaser.
III.3 Governmental Authorization; Third Party Consents. No
-------------------------------------------------
approval, consent, compliance, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person, and
no lapse of a waiting period under a Requirement of Law, is necessary or
required in connection with the execution, delivery or performance (including,
without limitation, the purchase of the Purchased Shares and the Warrants) by,
or enforcement against, such Purchaser of this Agreement, each of the other
Transaction Documents to which it is a party and the transactions contemplated
hereby or thereby.
Page 44 of 83 Pages
III.4 Binding Effect. This Agreement and each of the other
--------------
Transaction Documents to which it is a party have been duly executed and
delivered by such Purchaser and constitute the legal, valid and binding
obligations of such Purchaser, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
III.5 Purchase for Own Account. The Purchased Shares and
------------------------
the Warrants to be acquired by such Purchaser pursuant to this Agreement are
being or will be acquired for its own account and with no intention of
distributing or reselling such Purchased Shares or any part thereof in any
transaction that would be in violation of the securities laws of the United
States of America, or any state, without prejudice, however, to the rights of
such Purchaser at all times to sell or otherwise dispose of all or any part of
such Purchased Shares or Warrants under an effective registration statement
under the Securities Act, or under an exemption from such registration available
under the Securities Act, and subject, nevertheless, to the disposition of such
Purchaser's property being at all times within its control. If such Purchaser
should in the future decide to dispose of any of the Securities, such Purchaser
understands and agrees that it may do so only in compliance with the Securities
Act and applicable state securities laws, as then in effect. Such Purchaser
agrees to the imprinting, so long as required by law, of a legend on
certificates representing the Securities substantially to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE ENTITLED TO THE
BENEFITS OF A REGISTRATION RIGHTS AGREEMENT AMONG INTEGRA LIFESCIENCES
CORPORATION AND THE ORIGINAL PURCHASERS OF THE PREFERRED STOCK
REPRESENTED HEREBY. TRANSFEREES OF SUCH SECURITIES SHOULD REVIEW SUCH
AGREEMENT TO DETERMINE THEIR RIGHTS."
Page 45 of 83 Pages
III.6 Accreditation; Sophistication; Other Securities Laws
-----------------------------------------------------
Matters. Each Purchaser (a) is an "accredited investor" within the meaning of
-------
Rule 501 under the Securities Act; (b) has sufficient knowledge and experience
in investing in companies similar to Integra so as to be able to evaluate the
risks and merits of its investment in Integra and is able financially to bear
the risks thereof; (c) has had an opportunity to discuss Integra's business,
management and financial affairs with Integra's management; and (d) is a
resident of the jurisdiction listed next to its name on Schedule 1 hereto for
----------
purposes of state "blue sky" securities law purposes.
III.7 Broker's, ▇▇▇▇▇▇'s or Similar Fees. There are no
--------------------------------------
brokerage commissions, finder's fees or similar fees or commissions payable by
the Purchasers or any of them, in connection with the transactions contemplated
hereby based on any agreement, arrangement or understanding with such Purchaser
or any action taken by such Purchaser.
SECTION IV. CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
--------------------------
The obligation of the Purchasers to purchase the Purchased
Shares and the Warrants, to pay the purchase price therefor at the Closing and
to perform any obligations hereunder shall be subject to the satisfaction as
determined by, or waiver by, the Purchasers of the following conditions on or
before the Closing Date.
IV.1 Representations and Warranties. The representations
-------------------------------
and warranties of Integra contained in Section II hereof shall be true and
correct in all material respects at and on the Closing Date as if made at and on
such date, except to the extent that any representation and warranty expressly
speaks as of an earlier date, in which case such representation and warranty is
true and correct as of such date and except for any activities or transactions
which may have taken place after the date hereof which are contemplated by this
Agreement.
IV.2 Compliance with this Agreement. Integra shall have
--------------------------------
performed and complied in all material respects with all of its agreements and
conditions set forth herein that are required to be performed or complied with
by Integra on or before the Closing Date.
IV.3 Secretary's Certificate. The Purchasers shall have
------------------------
received a certificate from Integra, in form and substance satisfactory to the
Purchasers, dated the Closing Date and signed by a secretary or an assistant
secretary of Integra, certifying (a) that the attached copies of the Certificate
of Incorporation, the By-laws and resolutions of the Board of Directors of
Integra approving this Agreement, each of the other Transaction Documents and
the transactions contemplated hereby and thereby, are all true, complete and
correct and remain unamended and in full force and effect, and (b) as to the
incumbency and specimen signature of each officer of Integra executing this
Agreement, each of the other Transaction Documents and any other document
delivered in connection herewith on behalf of Integra.
Page 46 of 83 Pages
IV.4 Officers' Certificate. The Purchasers shall have
----------------------
received a certificate from Integra, in form and substance satisfactory to the
Purchasers, dated the Closing Date and signed by Integra's chief executive
officer and its treasurer, certifying that (a) the representations and
warranties of Integra contained in Section II hereof are true and correct in all
material respects on the Closing Date and (b) Integra has performed and complied
with in all material respects all of the agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by
Integra on or before the Closing Date.
IV.5 Documents. The Purchasers shall have received true,
---------
complete and correct copies of such documents as they may reasonably request in
connection with or relating to the issue and sale of the Purchased Shares and
the transactions contemplated hereby, all in form and substance reasonably
satisfactory to the Purchasers.
IV.6 Filing of Certificate of Designation. The Certificate
------------------------------------
of Designation shall have been duly filed by Integra with the Secretary of State
of the State of Delaware in accordance with the General Corporation Law of the
State of Delaware.
IV.7 Registration Rights Agreement. Integra shall have
-------------------------------
duly executed and delivered the Registration Rights Agreement, substantially in
the form attached hereto as Exhibit C.
---------
IV.8 Opinion of Counsel. The Purchasers shall have
--------------------
received an opinion of counsel to Integra, dated the Closing Date, relating to
the transactions contemplated hereby or referred to herein, substantially in the
form attached hereto as Exhibit D.
---------
IV.9 Approval of Counsel to the Purchasers. All actions
---------------------------------------
and proceedings hereunder and all documents required to be delivered by Integra
hereunder or in connection with the consummation of the transactions
contemplated hereby, and all other related matters, shall have been acceptable
to ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Purchasers, in their
reasonable judgment as to their form and substance.
IV.10 Purchased Shares. Integra shall have delivered to
-----------------
each of the Purchasers stock certificates in definitive form representing the
number of Purchased Shares set forth opposite such Purchaser's name on Schedule
--------
1 hereto and registered in the name of such Purchaser.
-
Page 47 of 83 Pages
IV.11 Warrants. Integra shall have duly executed and
--------
delivered to the Purchasers the Warrants, each substantially in the form
attached hereto as Exhibit A.
---------
IV.12 Consents and Approvals. All consents, exemptions,
-----------------------
authorizations, or other actions by, or notices to, or filings with (other than
the filings referenced in Section 2.3(a) and (d) hereof), Governmental
Authorities and other Persons in respect of all Requirements of Law and with
respect to those Contractual Obligations of Integra which are necessary or
required in connection with the execution, delivery or performance (including,
without limitation, the issuance of the Purchased Shares, the Warrants, shares
of Common Stock issuable upon conversion of the Purchased Shares and the
exercise of the Warrants) by, or enforcement against, Integra of this Agreement
and each of the other Transaction Documents shall have been obtained and be in
full force and effect, and each of the Purchasers shall have been furnished with
appropriate evidence thereof.
IV.13 No Litigation. No action, suit, proceeding, claim or
-------------
dispute shall have been brought or otherwise arisen at law, in equity, in
arbitration or before any Governmental Authority against Integra or any of its
Subsidiaries which would, if adversely determined, (a) have a material adverse
effect on the Condition of Integra or (b) have a material adverse effect on the
ability of Integra to perform its obligations under this Agreement or any of the
other Transaction Documents.
IV.14 No Material Judgment or Order. There shall not be on
-----------------------------
the Closing Date any Order of a court of competent jurisdiction or any ruling of
any Governmental Authority or any condition imposed under any Requirement of Law
which would, in the judgment of the Purchasers, (a) prohibit or restrict (i) the
purchase of the Purchased Shares or (ii) the consummation of the transactions
contemplated by this Agreement, (b) subject the Purchasers to any penalty or
other onerous condition under or pursuant to any Requirement of Law if the
Purchased Shares were to be purchased hereunder or (c) restrict the operation of
the business of Integra or any of the Subsidiaries as conducted on the date
hereof in a manner that would have a material adverse effect on the Condition of
Integra.
IV.15 No Material Adverse Change. Since the date hereof,
----------------------------
there shall have been no material adverse change in the Condition of Integra
(other than operating losses consistent with the historic results of Integra).
IV.16 Neurocare Acquisition. All conditions precedent to
----------------------
the consummation of the Neurocare Acquisition Agreement shall have been
satisfied in all material respects (and not waived, except for any waiver which
would not be adverse to the Purchasers in any material respect).
Page 48 of 83 Pages
SECTION V. CONDITIONS TO THE OBLIGATION
OF THE COMPANY TO CLOSE
-----------------------
The obligations of Integra to issue and sell the Purchased
Shares and to perform its other obligations hereunder, shall be subject to the
satisfaction as determined by, or waiver by, Integra of the following conditions
on or before the Closing Date:
V.1 Representations and Warranties. The representations
-------------------------------
and warranties of the Purchasers contained in Section III hereof shall be true
and correct on at and on the Closing Date as if made at and on such date, except
to the extent that any representation and warranty expressly speaks as of an
earlier date, in which case such representation and warranty is true and correct
as of such date and except for any activities or transactions which may have
taken place after the date hereof which are contemplated by this Agreement.
V.2 Compliance with this Agreement. The Purchasers shall
------------------------------
have performed and complied in all material respects with all of their
agreements and conditions set forth herein that are required to be performed or
complied with by the Purchasers on or before the Closing Date.
V.3 Registration Rights Agreement. The Purchasers shall
------------------------------
have duly executed and delivered the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit C.
---------
V.4 Consents and Approvals. All consents, exemptions,
-----------------------
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements of Law
and with respect to those Contractual Obligations of the Purchasers which are
necessary or required in connection with the execution, delivery or performance
(including, without limitation, the purchase of the Purchased Shares, the
Warrants, and the shares of Common Stock issuable upon conversion of the
Purchased Shares and the exercise of the Warrants) by, or enforcement against,
the Purchasers of this Agreement shall have been obtained and be in full force
and effect, and Integra shall have been furnished with appropriate evidence
thereof.
V.5 Payment of Purchase Price. Integra shall have
-----------------------------
received the aggregate purchase price for the Purchased Shares and the Warrants.
V.6 No Material Judgment or Order. There shall not be on
-----------------------------
the Closing Date any Order of a court of competent jurisdiction or any ruling of
any Governmental Authority or any condition imposed under any Requirement of Law
which would, in the judgment of Integra, (a) prohibit or restrict (i) the sale
of the Purchased Shares or the Warrants or (ii) the consummation of the
transactions contemplated by this Agreement or (b) subject Integra to any
penalty or other onerous condition under or pursuant to any Requirement of Law
if the Purchased Shares were to be sold hereunder.
Page 49 of 83 Pages
V.6 Opinion of Counsel. Integra will have received the
------------------
opinion of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, dated the Closing Date, relating to
the transactions contemplated hereby or referred to herein, substantially in the
form attached hereto as Exhibit E.
---------
SECTION VI. INDEMNIFICATION
---------------
VI.1 Indemnification. Except as otherwise provided in this
---------------
Section VI, Integra agrees to indemnify, defend and hold harmless each of the
Purchasers and their Affiliates and their respective officers, directors,
agents, employees, subsidiaries, members, partners and controlling persons
(each, an "Indemnified Party") to the fullest extent permitted by law from and
against any and all Losses (as hereinafter defined) resulting from, arising out
of or relating to any breach of any representation, warranty, covenant or
agreement by Integra in this Agreement or the other Transaction Documents,
including, without limitation, Losses arising out of or relating to any legal,
administrative or other actions (including actions brought by the Purchasers or
Integra or any equity holders of Integra or derivative actions brought by any
Person claiming through or in Integra's name), proceedings or investigations
(whether formal or informal), or written threats thereof, based upon, relating
to or arising out of this Agreement, each of the other Transaction Documents,
the transactions contemplated hereby and thereby, or any Indemnified Party's
role therein or in transactions contemplated hereby or thereby; provided,
--------
however, that the Integra shall not be liable under this Section 6.1 to an
-------
Indemnified Party to the extent that it is finally judicially determined that
such Losses resulted primarily from the material breach by such Indemnified
Party of any representation, warranty, covenant or other agreement of such
Indemnified Party contained in this Agreement; and provided, further, that if
-------- -------
and to the extent that such indemnification is unenforceable for any reason,
then Integra shall make the maximum contribution to the payment and satisfaction
of such Losses which shall be permissible under applicable laws. Losses means
all losses, claims (including any claim by a third party), damages, expenses
(including reasonable fees, disbursements and other charges of counsel incurred
by the Indemnified Party in any action between Integra and the Indemnified Party
or between the Indemnified Party and any third party or otherwise) or other
liabilities; provided, however, that Losses shall include only (a) direct
-------- -------
out-of-pocket payments of judgments and settlements, costs and expenses of the
Indemnified Parties and (b) diminution in value of the Purchased Shares directly
attributable to a breach of any representation, warranty, covenant or agreement
by Integra in this Agreement or the other Transaction Documents.
Page 50 of 83 Pages
VI.2 Notification. Each Indemnified Party under this
Section VI will, promptly after the receipt of notice of the commencement of any
action, investigation, claim or other proceeding against such Indemnified Party
in respect of which indemnity may be sought from Integra under this Section VI,
notify Integra in writing of the commencement thereof. The omission of any
Indemnified Party to so notify Integra of any such action shall not relieve
Integra from any liability which Integra may have to such Indemnified Party (a)
other than pursuant to this Section VI or (b) under this Section VI unless, and
only to the extent that, such omission results in Integra's forfeiture of
substantive rights or defenses. In case any such action, claim or other
proceeding shall be brought against any Indemnified Party and it shall notify
Integra of the commencement thereof, Integra shall be entitled to assume the
defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any
-------- -------
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense at its own expense. Notwithstanding the foregoing,
in any action, claim or proceeding in which both Integra, on the one hand, and
an Indemnified Party, on the other hand, are, or are reasonably likely to
become, a party, such Indemnified Party shall have the right to employ separate
counsel at the expense of Integra and to control its own defense of such action,
claim or proceeding if, in the reasonable opinion of counsel to such Indemnified
Party, a conflict or potential conflict exists between Integra, on the one hand,
and such Indemnified Party, on the other hand, that would make such separate
representation advisable; provided, however, that Integra shall not be liable
-------- -------
for the fees and expenses of more than one counsel to all Indemnified Parties.
Integra agrees that it will not, without the prior written consent of the
Purchasers, settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated hereby (if any Indemnified Party is a party thereto or has been
actually threatened to be made a party thereto) unless such settlement,
compromise or consent includes an unconditional release of the Purchasers and
each other Indemnified Party from all liability arising or that may arise out of
such claim, action or proceeding and imposes no obligations upon such
Indemnified Party. Integra shall not be liable for any settlement of any claim,
action or proceeding effected against an Indemnified Party without its written
consent, which consent shall not be unreasonably withheld. The rights accorded
to each Indemnified Party hereunder shall be the sole rights that such
Indemnified Party may have at common law, by separate agreement or otherwise;
provided, however, that notwithstanding the foregoing or anything to the
-------- -------
contrary contained in this Agreement, nothing in this Section VI shall restrict
or limit any rights that any Indemnified Party may have to seek equitable
relief.
Page 51 of 83 Pages
VI.3 Registration Rights Agreement. Notwithstanding
---------------------------------
anything to the contrary contained in this Section VI, the indemnification and
contribution provisions of the Registration Rights Agreement shall govern any
claim made with respect to registration statements filed pursuant thereto or
sales made thereunder.
SECTION VII. AFFIRMATIVE COVENANTS
---------------------
Integra hereby covenants and agrees with the Purchasers with
respect to this Section VII so long as any shares of Preferred Stock, shares of
Common Stock issuable upon the conversion thereof, the Warrants or the Warrant
Shares are outstanding, except to the extent that a particular section of this
Section VII provides for an earlier termination as follows:
VII.1 Preservation of Existence. From the date hereof until
-------------------------
the Closing Date, Integra shall, and shall use its best efforts to cause its
Subsidiaries to:
(a) preserve and maintain in full force and
effect its existence and good standing under the laws of its jurisdiction of
formation or organization;
(b) take all reasonable action to preserve and
maintain in full force and effect all material rights, privileges,
qualifications, applications, estimates, licenses and franchises necessary in
the normal conduct of its business;
(c) use its reasonable efforts to preserve its
business organization;
(d) conduct its business in accordance with
sound business practices and keep its useful and necessary properties in good
working order and condition (normal wear and tear excepted);
(e) comply with all Requirements of Law and with
the directions of any Governmental Authority having jurisdiction over Integra or
any of the Subsidiaries or their respective business or property except to the
extent that the failure to comply with any Requirements of Law would not have a
material adverse effect on the Condition of Integra; and
(f) file or cause to be filed in a timely manner
all reports, applications, estimates and licenses that shall be required by a
Governmental Authority and that, if not timely filed, would have a material
adverse effect on the Condition of Integra.
Page 52 of 83 Pages
VII.2 Delivery of 1998 Audited Financial Statements.
---------------------------------------------
(a) Integra shall deliver to the Purchasers as
soon as available a true and correct copy of its audited consolidated financial
statements (balance sheet and statement of operations, cash flows and
shareholders equity, together with the notes thereto) for the fiscal year ended
and as at December 31, 1998 (the "Audited Financial Statements") which will be
the same in all material respect as the Financial Statements.
(b) In the event the Audited Financial
Statements differ in any material respect from the Financial Statements, Integra
shall indemnify the Purchasers for the reduction in the value of the Series B
Preferred Stock, if any, caused by such differences by paying to the Purchasers
an amount in cash or shares of Common Stock equal to such reduction in value.
VII.3 Financial Statements and Other Information. Integra
-------------------------------------------
shall deliver to the Purchasers, in form and substance satisfactory to the
Purchasers:
(a) as soon as available, but not later than
ninety (90) days after the end of each fiscal year of Integra, a copy of the
audited consolidated balance sheet of Integra and its Subsidiaries as of the end
of such year and the related statements of operations and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous year, all in reasonable detail and accompanied by a management summary
and analysis of the operations of Integra and its Subsidiaries for such fiscal
year and by the opinion of a nationally recognized independent certified public
accounting firm which report shall state without qualification that such
consolidated financial statements present fairly the financial condition as of
such date and results of operations and cash flows for the periods indicated in
conformity with GAAP applied on a consistent basis; provided, however, that the
-------- -------
delivery to each of the Purchasers of a copy of Integra's Annual Report on Form
10-K for each fiscal year shall satisfy the requirements of this Section 7.3(a);
(b) commencing with the fiscal period ending on
March 31, 1999, as soon as available, but in any event not later than forty-five
(45) days after the end of each of the first three fiscal quarters of each
fiscal year, the unaudited consolidated balance sheet of Integra and its
Subsidiaries, and the related statements of operations and cash flows for such
quarter and for the period commencing on the first day of the fiscal year and
ending on the last day of such quarter, all certified by an appropriate officer
of Integra as presenting fairly the financial condition as of such date and
results of operations and cash flows for the periods indicated in conformity
with GAAP applied on a consistent basis, subject to normal year-end audit
adjustments and the absence of footnotes required by GAAP; provided, however,
-------- -------
that the delivery to each of the Purchasers of a copy of Integra's Quarterly
Report on Form 10-Q for each fiscal quarter shall satisfy the requirements of
this Section 7.3(b);
Page 53 of 83 Pages
(c) at any time when it is not subject to
Section 13 or 15(d) of the Exchange Act, upon request, to the Purchasers,
information of the type that would satisfy the requirement of subsection
(d)(4)(i) of Rule 144A (or any similar successor provision) under the Securities
Act; and
(d) except as otherwise provided in Sections
7.3(a) and (b), promptly after the same are filed, copies of all registration
statements, proxy statements, reports and other documents required to be filed
by Integra under the Securities Act or the Exchange Act, and all amendments
thereto.
VII.4 Reservation of Shares. Integra shall at all times
-----------------------
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issue or delivery upon conversion of the Purchased Shares, as
provided in the Certificate of Designation and the Certificate of Incorporation,
and the exercise of the Warrants, the number of shares of Common Stock that may
be issuable or deliverable upon such conversion or exercise. Integra shall issue
such shares of Common Stock in accordance with the terms of this Agreement, the
Certificate of Incorporation, the Certificate of Designation (in the case of the
shares of Common Stock issuable upon conversion of the Purchased Shares) and the
Warrants (in the case of the Warrant Shares), as the case may be, and otherwise
comply with the terms hereof and thereof.
VII.5 Registration and Listing. If any shares of Common
--------------------------
Stock required to be reserved for purposes of conversion of the Purchased
Shares, as provided in the Certificate of Designation or the exercise of the
Warrants, as provided in the Warrants, require registration with or approval of
any Governmental Authority under any Federal or state or other applicable law
before such shares of Common Stock may be issued or delivered upon conversion or
exercise, Integra will in good faith and as expeditiously as possible cause such
shares of Common Stock to be duly registered or approved, as the case may be,
unless such registration or approval is required solely because of a breach of
the Purchasers' representation contained in Section 3.5. So long as the shares
of Common Stock are quoted on the NASDAQ or listed on any national securities
exchange, Integra will, if permitted by the rules of such system or exchange,
quote or list and keep quoted or listed on such system or exchange, upon
official notice of issuance, all shares of Common Stock issuable or deliverable
upon conversion of the Preferred Shares and exercise of the Warrants.
VII.6 Board Representation. For so long as the Purchasers
---------------------
or Affiliates thereof collectively own at least one half of their initial
investment in the Series B Preferred Stock or the Common Stock into which it is
converted, the Purchasers as a group shall be entitled to name one
representative to Integra's Board of Directors (the "Purchasers'
Representative"), which Purchasers' Representative shall be reasonably
satisfactory to the Chief Executive Officer of Integra and who initially shall
be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. Integra will use its best efforts to cause the Purchasers'
Representative to be nominated and to solicit proxies for his election. The
Purchasers as a group will also be entitled to representation on significant
committees of Integra Board of Directors.
Page 54 of 83 Pages
VII.7 Director and Officer Liability Insurance. Integra
-------------------------------------------
will maintain director and officer liability insurance reasonably satisfactory
to the Purchasers.
SECTION VIII. TERMINATION OF AGREEMENT
------------------------
VIII.1 Termination. This Agreement may be terminated prior
-----------
to the Closing as follows:
(a) at any time on or prior to the Closing Date,
by mutual written consent of Integra and the Purchasers; or
(b) at the election of Integra or the Purchasers
by written notice to the other parties hereto after 5:00 p.m., New York City
time on April 30, 1999, if the transactions contemplated by this Agreement shall
not have been consummated pursuant hereto, unless such date is extended by the
mutual written consent of Integra and the Purchasers; or
(c) at the election of Integra, if any one or
more of the conditions to its obligation to close set forth in Section V has not
been satisfied or waived and the Closing shall not have occurred on the
scheduled Closing Date; or
(d) at the election of the Purchasers, if any
one or more of the conditions to its obligation to close set forth in Section IV
has not been satisfied or waived and the Closing shall not have occurred on the
scheduled Closing Date; or
(e) at the election of Integra, if there has
been a material breach of any representation, warranty, covenant or agreement on
the part of the Purchasers contained in this Agreement, which breach has not
been cured within ten (10) Business Days of notice to the Purchasers of such
breach; or
(f) at the election of the Purchasers, if there
has been a material breach of any representation, warranty, covenant or
agreement on the part of Integra contained in this Agreement, which breach has
not been cured within ten (10) Business Days notice to Integra of such breach.
If this Agreement so terminates, it shall become null and void and have no
further force or effect, except as provided in Section 8.2.
Page 55 of 83 Pages
VIII.2 Survival. If this Agreement is terminated and the
--------
transactions contemplated hereby are not consummated as described above, this
Agreement shall become void and of no further force and effect; provided,
--------
however, that (i) none of the parties hereto shall have any liability in respect
-------
of a termination of this Agreement pursuant to Section 8.1(a) or Section 8.1(b)
and (ii) nothing shall relieve any party from any liability for actual damages
resulting from a termination of this Agreement pursuant to Section 8.1(e) or
8.1(f); and provided further, that none of the parties hereto shall have any
-------- -------
liability for speculative, indirect, unforeseeable or consequential damages
resulting from a termination of this Agreement pursuant to Section VIII.
SECTION IX. MISCELLANEOUS
-------------
IX.1 Survival of Representations and Warranties. Except
--------------------------------------------
for the representations and warranties in Section 2.7(c) (which shall survive
without limitation), all of the representations and warranties made herein shall
survive the execution and delivery of this Agreement for a period ending 60 days
after the delivery by Integra to the Purchasers of its audited consolidated
financial statements (balance sheet and statement of operations, cash flows and
shareholders' equity, together with the notes hereto) for the fiscal year ended
and as at December 31, 1999; provided, however, that if Integra exercises its
Put Right during the Second Term the representations and warranties set forth in
the CEO Certificate shall survive for a period of one year following the receipt
by the Purchasers of the Additional Preferred Stock.
IX.2 Notices. All notices, demands and other
-------
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(i) if to Quantum Industrial Partners LDC.:
Kaya Flamboyan 9,
Villemstad
Curacao
Netherlands-Antilles
with a copy to:
▇▇▇▇▇ Fund Management LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Page 56 of 83 Pages
and a copy to:
▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(ii) If to SFM Domestic Investments LLC:
▇▇▇▇▇ Fund Management LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
with a copy to:
▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(iii) if to Integra:
Integra LifeSciences Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and CEO
with a copy to:
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇, Esq.
Page 57 of 83 Pages
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied.
IX.3 Successors and Assigns. This Agreement shall inure to
----------------------
the benefit of and be binding upon the successors and permitted assigns of the
parties hereto. Subject to applicable securities laws, each of the Purchasers
may assign any of its rights under this Agreement to any of its Affiliates.
Integra may not assign any of its rights under this Agreement and each of the
other Transaction Documents, except to a successor-in-interest to Integra,
without the written consent of all of the Purchasers. Except as provided in
Section VI no Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement and each of
the other Transaction Documents.
IX.4 Amendment and Waiver.
--------------------
(a) No failure or delay on the part of Integra
or the Purchasers in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.
(b) Any amendment, supplement or modification of
or to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by Integra or the Purchasers from
the terms of any provision of this Agreement, shall be effective (i) only if it
is made or given in writing and signed by Integra and the Purchasers, and (ii)
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement, no notice
to or demand on Integra in any case shall entitle Integra to any other or
further notice or demand in similar or other circumstances.
IX.5 Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
IX.6 Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Page 58 of 83 Pages
IX.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
--------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW ▇▇▇▇▇▇▇.
IX.8 Severability. If any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
IX.9 Rules of Construction. Unless the context otherwise
---------------------
requires, "or" is not exclusive, and references to sections or subsections refer
to sections or subsections of this Agreement.
IX.10 Entire Agreement. This Agreement, together with the
----------------
exhibits and schedules hereto, and the other Transaction Documents are intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein.
IX.11 Fees. Upon the Closing, Integra shall reimburse the
----
Purchasers for their reasonable out-of-pocket expenses (including attorney's
fees, disbursements and other charges) incurred in connection with the
transactions contemplated by this Agreement; provided, however, that Integra
-------- -------
shall not be obligated to reimburse the Purchasers for any reasonable
out-of-pocket expenses in excess of $40,000 in the aggregate.
IX.12 Publicity; Confidentiality.
--------------------------
(a) Except as may be required by applicable law
or the rules of any securities exchange or market on which shares of Common
Stock are traded, none of the parties hereto shall issue a publicity release or
public announcement or otherwise make any disclosure concerning this Agreement,
the transactions contemplated hereby or the business and financial affairs of
Integra, without prior approval by the other parties hereto; provided, however,
-------- -------
that nothing in this Agreement shall restrict any Purchaser from disclosing
information (i) that is already publicly available, (ii) that was known to such
Purchaser on a non-confidential basis prior to its disclosure by Integra, (iii)
that may be required or appropriate in response to any summons or subpoena or in
connection with any litigation, provided that such Purchaser will use reasonable
--------
Page 59 of 83 Pages
efforts to notify Integra in advance of such disclosure so as to permit Integra
to seek a protective order or otherwise contest such disclosure, and such
Purchaser will use reasonable efforts to cooperate, at the expense of Integra,
with Integra in pursuing any such protective order, (iv) to the extent that such
Purchaser reasonably believes it appropriate in order to protect its investment
in the Purchased Shares in order to comply with any Requirement of Law, (v) to
such Purchaser's officers, directors, agents, employees, members, partners,
controlling persons, auditors or counsel, (vi) to Persons who are parties to
similar confidentiality agreements or (vii) to the prospective transferee in
connection with any contemplated transfer of any of the Securities. If any
announcement is required by law or the rules of any securities exchange or
market on which shares of Common Stock are traded to be made by any party
hereto, prior to making such announcement such party will deliver a draft of
such announcement to the other parties and shall give the other parties
reasonable opportunity to comment thereon.
(b) The Purchasers shall have the opportunity to
review and modify any provision of any publicly release or public announcement
or document which is to be released to the public or filed with the SEC, which
provision mentions ▇▇▇▇▇ Fund Management LLC or any of its Affiliates, prior to
the release of such document to the public or the filing of such document with
the SEC.
IX.13 Further Assurances. Each of the parties shall execute
------------------
such documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
IX.14 Schedules. Anything disclosed on any schedule
---------
attached hereto shall be deemed disclosed on all schedules attached hereto.
Page 60 of 83 Pages
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective officers hereunto
duly authorized on the date first above written.
INTEGRA LIFESCIENCES CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
QUANTUM INDUSTRIAL PARTNERS LDC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Attorney-in-Fact
SFM DOMESTIC INVESTMENTS LLC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Page 61 of 83 Pages
Schedule 1
----------
PURCHASED SHARES AND WARRANTS AND PURCHASE PRICE
------------------------------------------------
Purchaser Shares of Warrants Purchase Price
Series B Preferred Purchased
Stock Purchased From From the Company
the Company
Quantum Industrial Partners LDC 75,000 180,000 $7,500,000
(principal place of business: Curacao)
SFM Domestic Investments LLC 25,000 60,000 $2,500,000
(principal place of business: New
York)
