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________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
among
INTEGRA LIFESCIENCES CORPORATION,
QUANTUM INDUSTRIAL PARTNERS LDC,
and
SFM DOMESTIC INVESTMENTS LLC
_____________________________________________________
Dated: March 29, 1999
_____________________________________________________
________________________________________________________________________________
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TABLE OF CONTENTS
Page
----
1. Definitions.....................................................................................1
2. General; Securities Subject to this Agreement...................................................3
(a) Grant of Rights........................................................................3
(b) Registrable Securities.................................................................3
(c) Holders of Registrable Securities......................................................4
3. Demand Registration.............................................................................4
(a) Request for Demand Registration........................................................4
(b) Effective Demand Registration..........................................................4
(c) Expenses...............................................................................5
(d) Underwriting Procedures................................................................5
(e) Selection of Underwriters..............................................................5
4. Piggy-Back Registration.........................................................................6
(a) Piggy-Back Rights......................................................................6
(b) Expenses...............................................................................7
5. Holdback Agreements.............................................................................7
(a) Restrictions on Public Sale by Designated Holders......................................7
(b) Restrictions on Public Sale by the Company.............................................7
6. Registration Procedures.........................................................................8
(a) Obligations of the Company.............................................................8
(b) Obligations of Each Designated Holder of Registrable Securities.......................11
(c) Notice to Discontinue.................................................................12
(d) Registration Expenses.................................................................12
7. Indemnification; Contribution..................................................................13
(a) Indemnification by the Company........................................................13
(b) Indemnification by Designated Holders.................................................13
(c) Conduct of Indemnification Proceedings................................................14
(d) Contribution..........................................................................14
8. Rule 144.......................................................................................15
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9. Miscellaneous..................................................................................15
(a) Recapitalizations, Exchanges, etc.....................................................15
(b) No Inconsistent Agreements............................................................16
(c) Remedies..............................................................................16
(d) Amendments and Waivers................................................................16
(e) Notices...............................................................................16
(f) Successors and Assigns; Third Party Beneficiaries.....................................18
(g) Counterparts..........................................................................18
(h) Headings..............................................................................18
(i) GOVERNING LAW.........................................................................18
(j) Severability..........................................................................18
(k) Entire Agreement......................................................................18
(l) Further Assurances....................................................................19
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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.
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"Company Underwriter" has the meaning assigned such term in
--------------------
Section 4(a).
"Demand Registration" has the meaning assigned such term in
--------------------
Section 3(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.
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"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.
"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 ▇▇▇▇▇▇'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
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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.
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
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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.
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(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
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
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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
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.
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(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 ▇▇▇▇▇▇ 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.
(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:
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(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
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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) 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
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such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided, however, that the Company
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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 any such seller or any managing
underwriter (each, an "Inspector" and collectively, the "Inspectors"), all
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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;
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(xii) cause 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;
(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
▇▇▇▇▇▇ 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;
Page 76 of 83 Pages
(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 ▇▇▇▇▇▇'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
(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."
---------------------
Page 77 of 83 Pages
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
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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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
Page 78 of 83 Pages
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 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
Page 79 of 83 Pages
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.
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.
Page 80 of 83 Pages
(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:
Kaya Flamboyan 9,
Villemstad
Curacao
Netherlands-Antilles
with a copy to:
▇▇▇▇▇ Fund Management LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Page 81 of 83 Pages
and a copy to:
▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(ii) If to SFM DI:
▇▇▇▇▇ Fund Management LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
with a copy to:
▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(iii) if to the Company:
Integra LifeSciences Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President and CEO
with a copy to:
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇, Esq.
(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.
Page 82 of 83 Pages
(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.
(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.
Page 83 of 83 Pages
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________
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:
