Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated March 29, 1999 (this
"Agreement"), among INTEGRA LIFESCIENCES CORPORATION, a Delaware corporation
(the "Company"), QUANTUM INDUSTRIAL PARTNERS LDC, a Cayman Islands limited
duration company ("QIP"), and SFM DOMESTIC INVESTMENTS LLC, a Delaware limited
liability company ("SFM DI" and together with QIP, the "Stockholders").
WHEREAS, this Agreement is made in connection with the Series
B Convertible Preferred Stock and Warrant Purchase Agreement, dated March 29,
1999 (the "Series B Agreement"), among the Company and the Stockholders pursuant
to which the Company has agreed to issue and sell to the Stockholders, and the
Stockholders have agreed to purchase from the Company, (i) an aggregate of
100,000 shares of Series B Preferred Stock and (ii) warrants (the "Warrants") to
purchase, subject to the terms and conditions thereof, an aggregate of 240,000
shares of Common Stock;
WHEREAS, in order to induce the Stockholders to purchase their
shares of Series B Preferred Stock and the Warrants, the parties hereto have
agreed to enter into this Agreement pursuant to which the Company has agreed to
grant registration rights with respect to the Registrable Securities (as
hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement the following terms
have the meanings indicated:
"Act" means the Securities Act of 1933, as amended.
"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, and any Person controlling, controlled by, or under common control with
▇▇▇▇▇ Fund Management LLC. For the purposes of this Agreement, "control"
includes the ability to have investment discretion through contractual means or
by operation of law.
"Approved Underwriter" has the meaning assigned such term in
Section 3(e).
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company or any other equity securities of the Company into which
such securities are converted, reclassified, reconstituted or exchanged.
"Company Underwriter" has the meaning assigned such term in
Section 4(a).
"Demand Registration" has the meaning assigned such term in
Section3(a).
"Designated Holder" means each of the Stockholders, and any
transferee of any of them to whom Registrable Securities have been transferred
in accordance with the provisions of this Agreement, other than a transferee to
whom such securities have been transferred pursuant to a registration statement
under the Securities Act or Rule 144 or Regulation S under the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Rightholders" means the stockholders of the Company,
if any, who have obtained registration rights pursuant to agreements existing on
the date hereof.
"Initiating Holders" has the meaning assigned such term in
Section 3(a).
"Inspector" has the meaning assigned such term in Section
6(a)(viii).
"NASD" has the meaning assigned such term in Section
6(a)(xiv).
"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, government (or an agency or political
subdivision thereof) or other entity of any kind, and shall include any
successor (by merger or otherwise) of such entity.
"QIP" means Quantum Industrial Partners LDC.
"Registrable Securities" means each of the following: (a) any
shares of Common Stock owned by the Designated Holders issued or issuable upon
conversion of shares of Series B Preferred Stock or Additional Preferred Stock
(as defined in the Series B Agreement), or upon exercise of the Warrants, (b)
any shares of Common Stock issued or issuable by the Company to any or all of
the Designated Holders during the time that any of such Designated Holders are
holders of shares of Common Stock or shares of Series B Preferred Stock, (c) any
other shares of Common Stock acquired or owned by any of the Designated Holders
and (d) any shares of Common Stock issued or issuable with respect to shares of
Common Stock and shares of Series B Preferred Stock and Additional Preferred
Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise and shares of Common Stock issuable upon conversion,
exercise or exchange thereof.
"Registration Expenses" has the meaning set forth in Section
6(d).
"SEC" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Series B Agreement" has the meaning assigned such term in the
recital to this Agreement.
"Series B Preferred Stock" has the meaning assigned such term
in the recital to this Agreement.
"SFM DI" means SFM Domestic Investments LLC.
"Stockholders" means Quantum Industrial Partners LDC and SFM
Domestic Investments LLC.
"Warrants" has the meaning assigned such term in the recital
to this Agreement.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants registration
rights to the Stockholders upon the terms and conditions set forth in this
Agreement.
(b) Registrable Securities. For the purposes of this
Agreement, (i) Registrable Securities will cease to be Registrable Securities
when a registration statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective registration
statement and (ii) the securities of a Designated Holder shall be deemed not to
be Registrable Securities at any time when the Company is registered pursuant to
Section 12 of the Exchange Act and the entire amount of such Designated Holder's
Registrable Securities proposed to be sold in a single sale are or, in the
opinion of counsel satisfactory to the Company and the Designated Holder, each
in their reasonable judgment, may be distributed to the public pursuant to Rule
144 (or any successor provision then in effect) under the Securities Act.
(c) Holders of Registrable Securities. A Person is deemed to
be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected and
disregarding any legal restrictions upon the exercise of such rights. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
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3. Demand Registration.
(a) Request for Demand Registration. At any time on or after
the date hereof, the holders of more than 50% of the Registrable Securities
outstanding may make a written request for registration (such Designated Holders
making such request being deemed to be "Initiating Holders") of Registrable
Securities under the Securities Act, and under the securities or "blue sky" laws
of a reasonable number of jurisdictions designated by such holder or holders (a
"Demand Registration"); provided, however, that the Company shall not be
required to effect more than two Demand Registrations pursuant to this Section
3. If at the time of any request to register Registrable Securities pursuant to
this Section 3(a), the Company is engaged in, or has fixed plans to engage in
within ninety (90) days of the time of such request, a registered public
offering or is engaged in any other activity which, in the good faith
determination of the Board of Directors of the Company, would be required to be
disclosed under applicable law as a result of such request or would be adversely
affected by the requested registration, then the Company may at its option
direct that such request be delayed for a reasonable period not in excess of
three (3) months from the effective date of such offering or the date of
completion of such other activity, as the case may be, such right to delay a
request to be exercised by the Company not more than once in any one-year
period. In addition, the Company shall not be required to effect any
registration within three (3) months after the effective date of any other
Registration Statement of the Company. Each such request for a Demand
Registration by the Initiating Holders shall state the amount of the Registrable
Securities proposed to be sold, the intended method of disposition thereof and
the jurisdictions in which registration is desired. Upon a request for a Demand
Registration, the Company shall promptly take such steps as are necessary or
appropriate to prepare for the registration of the Registrable Securities to be
registered.
(b) Effective Demand Registration. The Company shall use
commercially reasonable efforts to cause any such Demand Registration to become
effective not later than forty-five (45) days after it receives a request under
Section 3(a) hereof and to remain effective for the lesser of (i) the period
during which all Registrable Securities registered in the Demand Registration
are sold and (ii) ninety (90) days; provided, however, that if the Initiating
Holders request the Company to withdraw such registration, it shall constitute a
Demand Registration unless the Initiating Holders promptly pay all of the costs
and expenses incurred by the Company in connection with such registration.
(c) Expenses. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses (other than
underwriting discounts and commissions and brokerage commissions), including the
reasonable fees and expenses of one counsel selected by the Designated Holders
holding a majority of the Registrable Securities being registered in such
registration ("Holders' Counsel") in connection therewith (not to exceed
$15,000), whether or not such Demand Registration becomes effective.
(d) Underwriting Procedures. If the Initiating Holders holding
a majority of the Registrable Securities held by all of the Initiating Holders
to which the requested Demand Registration relates so elect, the offering of
such Registrable Securities pursuant to such Demand Registration shall be in the
form of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved
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Underwriter (as hereinafter defined) selected in accordance with Section 3(e).
In such event, if the Approved Underwriter advises the Company in writing that
in its opinion the aggregate amount of such Registrable Securities requested to
be included in such offering is sufficiently large to have a material adverse
effect on the success of such offering, subject to the rights of the Existing
Rightholders, the Company shall include in such registration only the aggregate
amount of Registrable Securities that in the opinion of the Approved Underwriter
may be sold without any such material adverse effect and shall reduce, first as
to the Company and any stockholders who are not Designated Holders as a group,
if any, and then as to the Designated Holders as a group, pro rata within each
group based on the number of Registrable Securities included in the request for
Demand Registration, the amount of Registrable Securities to be included by each
Designated Holder in such registration.
(e) Selection of Underwriters. If any Demand Registration of
Registrable Securities is in the form of an underwritten offering, the
Initiating Holders holding a majority of the Registrable Securities held by all
such Initiating Holders shall select and obtain an investment banking firm of
national reputation to act as the managing underwriter of the offering (the
"Approved Underwriter");
provided, however, that the Approved Underwriter shall, in any case, be
acceptable to the Company in its reasonable judgment.
4. Piggy-Back Registration.
(a) Piggy-Back Rights. If the Company proposes to file a
registration statement under the Securities Act with respect to an offering by
the Company for its own account or for the account of an Initiating Holder
pursuant to Section 3 of any class of security (other than a registration
statement on Form S-4 or S-8 or any successor forms thereto), then the Company
shall give written notice of such proposed filing to each of the Designated
Holders of Registrable Securities (other than any Initiating Holders), and such
notice shall describe in detail the proposed registration and distribution and
shall offer such Designated Holders (other than any Initiating Holders) the
opportunity to register the number of Registrable Securities as each such holder
may request. The Company shall, and shall use commercially reasonable efforts
(within ten (10) days of the notice provided for in the preceding sentence) to
cause the managing underwriter or underwriters of a proposed underwritten
offering (the "Company Underwriter") to, permit the Designated Holders of
Registrable Securities who have requested in writing (within ten (10) days of
the giving of the notice of the proposed filing by the Company) to participate
in the registration for such offering to include such Registrable Securities in
such offering on the same terms and conditions as the securities of the Company
included therein. In connection with any offering under this Section 4(a)
involving an underwriting, the Company shall not be required to include any
Registrable Securities in such underwriting unless (i) the holders thereof
accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, (ii) if such underwriting has been initiated by the
Company or requested by another party that has contractual registration rights,
all of the shares of Common Stock held by the parties making such request or
entitled to include shares of Common Stock pursuant to the same rights as the
requesting parties have been included in such registration and (iii) all of the
shares of Common Stock held by Existing Rightholders for which such registration
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has been requested by such Existing Rightholders have been included in such
registration, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If in the
opinion of the Company Underwriter the registration of all, or part, of the
Registrable Securities which the Designated Holders have requested to be
included would materially and adversely affect such public offering, then the
Company shall be required to include in the underwriting only that number of
Registrable Securities, if any, which the Company Underwriter believes may be
sold without causing such adverse effect, and the amount of securities to be
offered in the underwriting shall be allocated first, to the Company based on
the number of shares it desires to sell in the underwritten offering for its own
account; and thereafter pro rata among the Initiating Holders and all other
selling stockholders, if any, based on the number of shares otherwise proposed
to be included therein by the Initiating Holders and such other selling
stockholders. If the number of Registrable Securities to be included in the
underwriting in accordance with the foregoing is less than the total number of
shares which the Designated Holders of Registrable Securities have requested to
be included, then the Designated Holders of Registrable Securities who have
requested registration shall participate in the underwriting pro rata based upon
their total ownership of the Registrable Securities. If any Designated Holder
would thus be entitled to include more shares than such holder requested to be
registered, the excess shall be allocated among other requesting Designated
Holders pro rata based upon their total ownership of Registrable Securities.
(b) Expenses. The Company shall bear all Registration Expenses
(other than underwriting discounts and commissions and brokerage commissions),
including the reasonable fees and expenses of the Holders' Counsel (not to
exceed $15,000), in connection with any registration pursuant to this Section 4.
5. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. Each
Designated Holder of Registrable Securities agrees not to effect any public sale
or distribution of any Registrable Securities being registered or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act,
during the ninety (90) day period beginning on the effective date of such
registration statement (except as part of such registration), if and to the
extent requested by the Company in the case of a non-underwritten public
offering or if and to the extent requested by the Company Underwriter or the
Approved Underwriter in the case of an underwritten public offering, except to
the extent that such Designated Holder is prohibited by applicable law or
exercise of fiduciary duties from agreeing to withhold Registrable Securities
from sale or is acting in its capacity as a fiduciary or investment adviser. If
requested by the Company Underwriter, each Designated Holder will execute and
deliver a lock-up agreement in a form acceptable to such Underwriter and the
Company for purposes of its obligations under this Section 5. Without limiting
the scope of the term "fiduciary," a Designated Holder shall be deemed to be
acting as a fiduciary or an investment adviser if its actions or the Registrable
Securities proposed to be sold are subject to the Employee Retirement Income
Security Act of 1974, as amended, or the Investment Company Act of 1940, as
amended, or if such Registrable Securities are held in a separate account under
applicable insurance law or regulation.
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(b) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its securities
for its own account, or any securities convertible into or exchangeable or
exercisable for such securities (except pursuant to registrations on Form S-4 or
S-8 or any successor forms thereto), during the period beginning on the
effective date of any Demand Registration in which the Designated Holders of
Registrable Securities are participating and ending on the earlier of (i) the
date on which all shares of Common Stock registered on such registration
statement are sold and (ii) the date thirty (30) days after the effective date
of such registration statement.
6. Registration Procedures.
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 or 4 of this
Agreement, the Company shall use commercially reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as promptly as reasonably practicable,
and in connection with any such request, the Company shall, as promptly as
reasonably possible:
(i) use commercially reasonable efforts to prepare and file
with the SEC a registration statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of such Registrable
Securities in accordance with the intended method of distribution
thereof, and use commercially reasonable efforts to cause such
registration statement to become effective; provided, however, that (x)
before filing a registration statement or prospectus or any amendments
or supplements thereto, the Company shall provide Holders' Counsel and
any other Inspector (as hereinafter defined) with an adequate and
appropriate opportunity to participate in the preparation of such
registration statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the SEC, which
documents shall be subject to the review of Holders' Counsel, and (y)
the Company shall notify the Holders' Counsel and each seller of
Registrable Securities of any stop order issued or threatened by the
SEC and take all reasonable action required to prevent the entry of
such stop order or to remove it if entered;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the lesser of (x) ninety (90) days and (y) such
shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold, and comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(iii) as soon as reasonably possible, furnish to each seller
of Registrable Securities, prior to filing a registration statement,
copies of such registration statement as is proposed to be filed, and
thereafter such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits
thereto), the prospectus included in such registration statement
(including each preliminary prospectus)
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and such other documents as each such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned
by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller of Registrable Securities may reasonably request,
and to continue such qualification in effect in such jurisdiction for as long as
permissible pursuant to the laws of such jurisdiction, or for as long as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that the Company shall not be required to (x) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 6(a)(iv), (y) subject itself to
taxation in any such jurisdiction or (z) consent to general service of process
in any such jurisdiction;
(v) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers of
Registrable Securities to consummate the disposition of such Registrable
Securities;
(vi) notify each seller of Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and the
Company shall promptly prepare a supplement or amendment to such prospectus
(except that the Company may avoid supplementing or amending such prospectus for
up to 90 days when, in the good faith determination of the Board of Directors of
the Company, supplementing or amending such prospectus would require disclosure
under applicable law of any material activity in which the Company is then
engaged, the disclosure of which would adversely affect the Company) and furnish
to each seller a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, after delivery to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made;
(vii) enter into and perform customary agreements (including
an underwriting agreement in customary form with the Approved Underwriter or
Company Underwriter, if any, selected as provided in Sections 3 or 4) and take
such other actions as are prudent and reasonably required in order to expedite
or facilitate the disposition of such Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursuant to such registration statement, Holders' Counsel and any
attorney, accountant or other agent retained by
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any such seller or any managing underwriter (each, an "Inspector" and
collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and its
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such registration statement. Records that
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(x) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is requested by any regulatory body (including the
National Association of Insurance Commissioners) or (z) the information in such
Records was known to the Inspectors on a non-confidential basis prior to its
disclosure by the Company or has been made generally available to the public.
Each seller of Registrable Securities agrees that it shall, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(ix) if such sale is pursuant to an underwritten offering, use
its best efforts to obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably request; provided, however, that the Company
shall not be required to obtain such a letter from its former independent public
accountants;
(x) use its best efforts to furnish, at the request of any
seller of Registrable Securities on the date such securities are delivered to
the underwriters for sale pursuant to such registration or, if such securities
are not being sold through underwriters, on the date the registration statement
with respect to such securities becomes effective, an opinion, dated such date,
of counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such request,
covering such legal matters with respect to the registration in respect of which
such opinion is being given as such seller may reasonably request and are
customarily included in such opinions;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable but no later than fifteen (15) months
after the effective date of the registration statement, an earnings statement
covering a period of twelve (12) months beginning after the effective date of
the registration statement, in a manner which satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) because all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed, provided, that the applicable listing requirements are satisfied;
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(xiii) keep Holders' Counsel advised in writing as to the
initiation of any registration under Section 3 or 4 hereunder and provide
Holders' Counsel with copies of any SEC filings made in connection therewith;
(xiv) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD"); and
(xv) use commercially reasonable efforts to take all other
steps necessary to effect the registration of the Registrable Securities
contemplated hereby.
(b) Obligations of Each Designated Holder of Registrable
Securities. Following the filing of a registration statement registering the
Eligible Securities of any Designated Holder and during any period that the
registration statement is effective, each such Designated Holder shall:
(i) not effect any stabilization transactions or engage in any
stabilization activity in connection with any securities of the Company in
contravention of Regulation M under the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(ii) furnish each broker or dealer through whom such
Designated Holder offers Eligible Securities such number of copies of the
prospectus as the broker may require and otherwise comply with the prospectus
delivery requirements under the Securities Act;
(iii) report to the Company each month all sales and other
dispositions of Eligible Securities made by such Designated Holder during said
month;
(iv) not, and shall not permit any Affiliated Purchaser (as
that term is defined in Regulation M under the Exchange Act) to, bid for or
purchase for any account in which such Designated Holder has a beneficial
interest, or attempt to induce any other person to purchase, any securities of
the Company in contravention of Regulation M under the Exchange Act;
(v) not offer or agree to pay, directly or indirectly, to
anyone any compensation for soliciting another to purchase, or for purchasing
(other than for such Designated Holder's own account), any securities of the
Company on a national securities exchange in contravention of Regulation M under
the Exchange Act;
(vi) cooperate in all reasonable respects with the Company as
it fulfills its obligations under this Agreement;
(vii) furnish such information concerning such Designated
Holder and the distribution of the Eligible Securities as the Company may from
time to time request to the extent required by federal securities laws; and
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(viii) sell Eligible Securities only in the manner described
in the Registration Statement or as otherwise permitted by federal securities
laws.
(c) Notice to Discontinue. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 6(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(a)(vi). If the
Company shall give any such notice, the Company shall extend the period during
which such registration statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
6(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(a)(vi) to and including the date
when the Designated Holder shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of Section
6(a)(vi).
(d) Registration Expenses. The Company shall pay all expenses
(other than as set forth in Sections 3(c) and 4(b)) arising from or incident to
the performance of, or compliance with, this Agreement, including, without
limitation, (i) SEC, stock exchange and NASD registration and filing fees, (ii)
all fees and expenses incurred in complying with securities or "blue sky" laws
(including reasonable fees, charges and disbursements of Holders' Counsel in
connection with "blue sky" qualifications of the Registrable Securities), (iii)
all printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of its independent public
accountants and any other accounting and legal fees, charges and expenses
incurred by the Company (including, without limitation, any expenses arising
from any special audits incident to or required by any registration or
qualification) and (v) any liability insurance or other premiums for insurance
obtained in connection with any Demand Registration or piggy-back registration
pursuant to the terms of this Agreement, regardless of whether such registration
statement is declared effective; provided, however, that, in connection with the
registration or qualification of the Eligible Securities under state securities
laws, nothing herein shall be deemed to require the Company to make any payments
to third parties in order to obtain "lock-up," escrow or other extraordinary
agreements. All of the expenses described in this Section 7 are referred to
herein as "Registration Expenses."
7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) caused by any untrue statement of a material fact
contained in any registration statement, prospectus or notification or offering
circular (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in light of the
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circumstances under which they were made) not misleading, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein or caused by such Designated Holder's failure to deliver a copy
of the prospectus or any amendments or supplements thereto in accordance with
the requirements of the Securities Act after the Company has furnished such
Designated Holder with a copy of the same. The Company shall also provide
customary indemnities to any underwriters of the Registrable Securities, their
officers, directors and employees and each Person who controls such underwriters
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Designated
Holders of Registrable Securities.
(b) Indemnification by Designated Holders. In connection with
any registration statement in which a Designated Holder is participating
pursuant to Section 3 or 4 hereof, each such Designated Holder shall furnish to
the Company in writing such information with respect to such Designated Holder
as the Company may reasonably request or as may be required by law for use in
connection with any such registration statement or prospectus and each
Designated Holder agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, any underwriter retained by the Company and their
respective directors, officers, employees and each Person who controls the
Company or such underwriter (within the meaning of the Securities Act and the
Exchange Act) to the same extent as the foregoing indemnity from the Company to
the Designated Holders, but only with respect to any such information with
respect to such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use therein, or with respect to such Designated
Holder's failure to deliver a copy of the prospectus or any amendments or
supplements thereto in accordance with the requirements of the Securities Act
after the Company has furnished such Designated Holder with a copy of the same;
provided, however, that the total amount to be indemnified by such Designated
Holder pursuant to this Section 7(b) shall be limited to the net proceeds
received by such Designated Holder in the offering to which the registration
statement or prospectus relates.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure so
to notify the Indemnifying Party shall not relieve the Indemnifying Party of any
liability that it may have to the Indemnified Party hereunder except to the
extent that the delay or failure to give such notice materially prejudices the
ability of the Indemnifying Party to defend such action. If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and satisfactory to such Indemnified Party. The Indemnified Party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees
to pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel satisfactory to the Indemnified Party in its
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reasonable judgment or (iii) the named parties to any such action (including any
impleaded parties) have been advised by such counsel that representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct, in which case
the Indemnifying Party shall not have the right to assume the defense of such
action on behalf of such Indemnified Party. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification provided for in this
Section 7 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative faults of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Sections 7(a), 7(b) and 7(c), any
reasonable legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding; provided that the
total amount to be indemnified by such Designated Holder shall be limited to the
net proceeds received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person.
8. Rule 144.
The Company covenants that it shall file any reports required
to be filed by it under the Exchange Act; and that it shall take such further
action as each Designated Holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rules 144
and 144A under the Securities Act), all to the extent required from time to time
to enable such Designated Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such rules may be amended
from time to time, or (b) any similar rules or regulations hereafter adopted by
the SEC. The Company shall, upon the request of any Designated Holder of
Registrable Securities, deliver to such Designated Holder a written statement as
to whether it has complied with such requirements.
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9. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein, with respect to (i)
the shares of Common Stock and (ii) to any and all equity securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the shares of Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after the
date hereof.
(b) No Inconsistent Agreements. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by all of the parties hereto.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, overnight courier service or personal delivery:
(i) if to QIP:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇▇
Curacao
Netherlands-Antilles
with a copy to:
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▇▇▇▇▇ Fund Management LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
and a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(ii) If to SFM DI:
▇▇▇▇▇ Fund Management LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(iii) if to the Company:
Integra LifeSciences Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and CEO
with a copy to:
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III, Esq.
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(iv) if to any other Designated Holder, at its
address as it appears on the transfer books
of the Company
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial courier service; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is acknowledged, if telecopied.
(f) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto. The registration rights and the other
rights of the Designated Holders contained in this Agreement shall be, with
respect to any Registrable Security, (i) automatically transferred from QIP or
SFM DI, as the case may be, to any Affiliate thereof, and (ii) in all other
cases, transferred by the Designated Holders only with the consent of the
Company. All of the obligations of the Company hereunder shall survive any such
transfer. No Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of any of the rights granted
hereunder.
(g) 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) 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 THEREOF.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, 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, it being
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is 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. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and in the Series B Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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(l) Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
INTEGRA LIFESCIENCES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and
Chief Executive Officer
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Attorney-In-Fact
SFM DOMESTIC INVESTMENTS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Attorney-In-Fact
