Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as
of February 26, 1998 by and between Integra LifeSciences Corporation, a
Delaware corporation ("Integra"), and Century Medical, Inc., a Japanese
corporation (the "Purchaser").
WHEREAS, Integra desires to sell, and the Purchaser desires to
purchase, the Preferred Shares (as such term is hereinafter defined) on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual terms and conditions
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
DEFINITIONS
For all purposes of this Agreement, unless otherwise expressly
provided, (a) the terms defined in this Definitions section have the meanings
assigned to them herein and include the plural as well as the singular, (b)
all accounting terms not otherwise defined herein have the meanings assigned
under generally accepted accounting principles in the United States, (c) all
references in this Agreement to designated "Sections" and other subdivisions
are to the designated Sections and other subdivisions of the body of this
Agreement, (d) pronouns of either gender or neuter shall include, as
appropriate, the other pronoun forms, and (e) the words "herein", "hereof" and
other words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
As used in this Agreement, the following definitions shall apply:
"Action" means any action, complaint, petition, investigation, suit
or other proceeding, whether civil or criminal, in law or in equity, or before
any arbitrator or Governmental Entity.
"Business" means the business of Integra and shall be deemed to include
any of the following incidents of such business: income, operations, condition
(financial or other), assets, properties and liabilities.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Common Stock, $0.01 par value, of Integra.
"Contract" means any agreement, arrangement, bond, commitment,
franchise, indemnity, indenture, instrument, lease, license or understanding,
whether or not in writing.
"Encumbrance" means any claim, charge, easement, encumbrance, lease,
covenant, security interest, lien, option, pledge, rights of others,
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise, except
for any restrictions on transfer generally arising under any applicable United
States federal or state securities law.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time.
"Governmental Entity" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government of or within the United
States, whether federal, state or local.
"Law" means any constitutional provision, statute or other law, rule,
regulation, or interpretation of any Governmental Entity and any Order.
"Loss" means any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty or
settlement of any kind or nature, whether foreseeable or unforeseeable,
including but not limited to, interest or other carrying costs, penalties,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid
in settlement, that may be imposed on or otherwise incurred or suffered by the
specified Person.
"Order" mans any decree, injunction, judgement, order, ruling,
assessment or writ of any Governmental Entity.
"Person" means an association, a corporation, an individual, a
partnership, a trust or any other entity or organization including a
Governmental Entity.
"SEC" means the Securities and Exchange Commission or any successor
entity.
"SEC Reports" has the meaning set forth in Section 2.6.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means any Person in which Integra has a direct or
indirect equity ownership interest in excess of 50%.
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SECTION I. PURCHASE AND SALE OF THE PREFERRED SHARES; CLOSING
1.1 Purchase and Sale of Preferred Shares. Subject to
the terms and conditions of this Agreement, the Purchaser shall purchase 500,000
shares of Integra's Series A Convertible Preferred Stock, par value $.01 per
share (the "Preferred Shares") for a total purchase price of $4,000,000, in a
maximum of two (2) installments as follows:
(a) the Purchaser agrees to purchase at the First
Closing (as defined in Section 1.2(a)), and Integra agrees to sell and issue to
the Purchaser at the First Closing, at least 250,000 Preferred Shares at the
purchase price of $8.00 per share (the "Share Price");
(b) the Purchaser agrees to purchase at the Second
Closing (as defined in Section 1.2(b)), and Integra agrees to sell and issue to
the Purchaser at the Second Closing, the balance of the Preferred Shares not
purchased at the First Closing, at the Share Price; and
(c) the Preferred Shares shall have the rights,
preferences, privileges and restrictions set forth in the Certificate of
Designation, Preferences and Rights of Series A Convertible Preferred Stock to
Integra's Certificate of Incorporation attached hereto as Exhibit A (the
"Certificate of Designation"), which shall be filed by Integra with the
Secretary of State of the State of Delaware prior to the First Closing. The term
"Conversion Shares," as used herein, means the shares of Common Stock of Integra
issuable upon conversion of the Preferred Shares.
1.2 Closing. As used herein, a "Closing" shall mean
the closing of the issuance and sale of the Preferred Shares to the Purchaser
hereunder, and the "Closing Date" shall mean the date on which such Closing
takes place.
(a) First Closing. The closing of the issuance
and sale of the Preferred Shares to the Purchaser pursuant to Section 1.1(a)
(the "First Closing") hereunder shall be held anytime during the period
beginning April 1, 1998 and ending on April 30, 1998 ("First Closing Period") at
the offices of Integra, 105 Morgan Lane, Plainsboro, New Jersey 08536 at
10:00 a.m., on such date during the First Closing Period as may be mutually
agreed upon by Integra and the Purchaser. At the First Closing, Integra shall
deliver to the Purchaser a certificate representing the Preferred Shares being
purchased against payment of the Purchase Price therefor by check or wire
transfer pursuant to wiring instructions given to Purchaser in writing by
Integra as soon as practicable following the date hereof.
(b) Second Closing. The closing of the issuance
and sale of the Preferred Shares to the Purchaser pursuant to Section 1.1(b)
(the "Second Closing") hereunder shall be held anytime during the period
beginning on the day after the First Closing Date and ending on June 30, 1998
(the "Second Closing Period") at the offices of
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Integra, 105 Morgan Lane, Plainsboro, New Jersey 08536 at 10:00 a.m., on such
date during the Second Closing Period as may be mutually agreed upon by
Integra and the Purchaser. At the Second Closing, Integra shall deliver to the
Purchaser a certificate representing the Preferred Shares being purchased
against payment of the Purchase Price therefor by check or wire transfer
pursuant to wiring instructions given to Purchaser in writing by Integra as
soon as practicable following the date hereof.
1.3 Share Adjustment.
(a) Subject to Section 1.3(b), if (i) Integra
sells shares of its Series A Convertible Preferred Stock to any Person other
than the Purchaser (a "Subsequent Sale") for aggregate consideration at or above
$1,000,000 and at a price per share (the "Subsequent Sale Price") of less than
$8.00, and (ii) the price per share of Series A Convertible Preferred Stock is
less than 1.6 times the average closing price of Integra's Common Stock for the
10 trading days immediately prior to the Subsequent Sale (equitably adjusted for
any subdivision or combination of Integra's Common Stock) (the "Average Closing
Price"), then Integra shall issue and deliver to Purchaser, without additional
consideration, a number of shares of Integra's Series A Convertible Preferred
Stock ("Adjustment Shares") equal to the difference between (x) $4,000,000
divided by the Adjusted Purchase Price (as defined herein), and (y) 500,000.
"Adjusted Purchase Price" means the product of $5.00 times the Subsequent Sale
Price divided by the Average Closing Price. Any such Adjustment Shares shall
be delivered by Integra to the Purchaser on the later of (i) the date of the
Second Closing and (ii) five business days after the date of the Subsequent
Sale.
(b) Purchaser's right to obtain the price
adjustment set forth in Section 1.3(a) shall expire on the earlier of (i) June
30, 1998, (ii) the date on which Integra sells shares of its Series A
Convertible Preferred Stock for aggregate consideration at or above $3,000,000
to any Person other than the Purchaser at a price per share at or above $8.00
and (iii) the date immediately following the date of issuance by Integra to
Purchaser of any Adjustment Shares pursuant to Section 1.3(a).
SECTION II. REPRESENTATIONS AND WARRANTIES OF INTEGRA
Integra represents and warrants to the Purchaser as
follows:
2.1 Corporate Organization. Integra is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Integra and each Subsidiary has all requisite corporate power
and authority to own, operate and lease its properties and to carry on its
business as it is now being conducted. Integra and each Subsidiary is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification or licensing necessary,
except where its
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failure so to qualify to be licensed would not have a material adverse effect
on Integra or such Subsidiary.
2.2 Capitalization. On the date hereof, the authorized
capital stock of Integra consists of 60,000,000 shares of Common Stock, and
15,000,000 shares of Preferred Stock, par value $.01 per share. Upon the filing
of the Certificate of Designation with the Secretary of State of Delaware,
2,000,000 shares of Integra's Preferred Stock shall be designated as "Series A
Convertible Preferred Stock" and 13,000,000 shares of Integra's Preferred
Stock shall be undesignated. As of the date hereof, 29,903,082 shares of
Common Stock are issued and outstanding, and no shares of Preferred Stock are
issued and outstanding. All of the issued and outstanding shares of Common
Stock have been duly authorized and validly issued and are fully paid and
non-assessable. Except as stated in the SEC Reports and except for certain
commitments to issue Preferred Stock previously disclosed to the Purchaser,
there are no existing subscriptions, options, warrants, calls, commitments,
agreements, conversion or other rights of any character (contingent or
otherwise) to purchase or otherwise acquire from Integra at any time, or upon
the happening of any stated event, any shares of the capital stock of Integra.
2.3 Authorization. Integra has all requisite corporate
power and authority to enter into this Agreement and the Registration Rights
Agreement in the form attached hereto as Exhibit B (the "Registration Rights
Agreement") and to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated hereby and thereby have
been duly authorized by the Board of Directors of Integra, which authorization
remains in full force and effect and has not been modified or amended by any
subsequent action of such Board of Directors, and no other corporate actions or
proceedings on the part of Integra are necessary to authorize this Agreement and
the Registration Rights Agreement or the transactions contemplated hereby and
thereby. The transactions contemplated hereby will not violate any of the
provisions of Integra's Amended and Restated Certificate of Incorporation or
By-Laws, as amended. This Agreement and the Registration Rights Agreement will
constitute the valid and binding obligations of Integra, each enforceable in
accordance with its respective terms, except to the extent that enforceability
may be limited by equity, bankruptcy, insolvency and other laws of general
application affecting the rights and remedies of creditors and to the extent
the indemnification provisions contained in the Registration Rights Agreement
may be limited by applicable United States federal or state securities laws.
2.4 No Violation. Except for filings under United
States federal and state securities laws, no permit, consent, approval,
authorization of or declaration to or filing with any Governmental Entity or
other Person, not made or obtained, is required in connection with the execution
and delivery of this Agreement or the Registration Rights Agreement or the
offering and issuance of the Preferred Shares and Conversion Shares. The
execution, delivery and performance of this Agreement and the Registration
Rights Agreement will not
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violate, result in a breach of or the acceleration of any obligation under, or
constitute a default under, any provision of any indenture, mortgage, lien,
lease, agreement, contract, instrument, order, judgment, decree, law,
ordinance or regulation to which any property of Integra is subject or by
which Integra is bound or result in the creation or imposition of any lien,
claim, charge, restriction, equity or encumbrance of and kind whatsoever upon,
or give to any other Person any interest or right in or with respect to, any
of the properties, assets, business, agreements or contracts of Integra.
2.5 Good Title: Valid Issuance of Securities. Upon
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof, the Purchaser will acquire good title to the Preferred
Shares. The Preferred Shares, when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable and free of restrictions on
transfer other than restrictions on transfer under this Agreement and applicable
United States federal and state securities laws. The Conversion Shares have been
duly and validly authorized and reserved for issuance (and no further corporate
or other action is required for the issuance of the Preferred Shares or
Conversion Shares contemplated by this Agreement) and, upon issuance in
accordance with the terms of the Certificate of Designation, shall be duly and
validly issued, fully paid and nonassessable.
2.6 SEC Reports. The Common Stock is registered under
Section 12 of the Exchange Act. Integra has provided to Purchaser a true and
complete copy (without exhibits) of all reports filed by Integra with the
Securities and Exchange Commission pursuant to Sections 13(a) and 14(a) of the
Exchange Act since November 1, 1997 (collectively, the "SEC Reports"). None of
the SEC Reports as of their respective dates contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. All of the audited
consolidated financial statements and unaudited consolidated interim financial
statements of Integra included in the SEC Reports have been prepared in
accordance with GAAP applied on a consistent basis for the dates and during
the periods involved (except as otherwise stated in such financial statements
or, in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements), and fairly
present the consolidated financial position, results of operations and cash
flows of Integra as of the dates thereof and for the periods indicated therein
(subject, in the case of any unaudited interim financial statements, to normal
year end audit adjustments). Integra does not have any liability or
obligation, secured or unsecured (whether absolute, accrued, contingent or
otherwise, and whether due or to become due), which is of a nature required
under GAAP applied on a consistent basis to be included in a consolidated
balance sheet or disclosed in the notes thereto, except such liabilities and
obligations which (i) are recorded in the most recent balance sheet included
in the SEC Reports or (ii) were incurred after the date of such balance sheet
in the ordinary course of business. There has been no material adverse change
in the
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Business since December 31, 1997 other than Integra's plan to close its West
Chester, Pennsylvania facility during 1998.
2.7 Private Placement. Subject to the truth and
accuracy of the Purchaser's representations set forth in this Agreement, the
offer, sale and issuance of the Preferred Shares and the Conversion Shares, as
contemplated by this Agreement, are exempt from the registration requirements of
the Securities Act and from the qualification requirements of applicable United
States federal and state securities laws.
2.8 Legal Matters. Except as disclosed in the SEC
Reports, (i) there is no Order or Action pending or, to the best knowledge of
Integra, threatened against or affecting Integra or any of its properties or
assets that individually or when aggregated with one or more other Orders or
Actions has or if determined adversely to the interest of Integra might
reasonably be expected to have a material adverse effect on Integra, the
Business, on Integra's ability to perform this Agreement, or on any aspect of
the transactions contemplated by this Agreement, and (ii) Integra is not in
violation of any Laws, the effect of which violation would be materially
adverse to the Business.
2.9 Insurance. There is in full force and effect
insurance coverage on the assets, properties, premises, operations and personnel
of Integra in such amounts and against such risks and losses as in the opinion
of Integra is adequate in all material respects for the business engaged in by
Integra. All such insurance policies are in full force and effect, and Integra
has not received a notification with respect to any material policies of their
cancellation or that they will not be renewed or that the insurance carrier
insuring same has placed any condition on renewal or cancellation which would
make the renewal or cancellation onerous.
SECTION III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser understands that the Preferred Shares will
not be registered under the Securities Act on the grounds that the sale of such
securities to the Purchaser is exempt pursuant to Section 4(2) of the Securities
Act and/or Regulation D promulgated under the Securities Act, and that the
reliance of Integra on such exemptions is predicated in part on the Purchaser's
representations, warranties, covenants and acknowledgements set forth in this
Section 3.
3.1 Corporate Organization. The Purchaser is a
corporation duly organized and validly existing under the laws of Japan.
3.2 Authorization. The Purchaser has all requisite
corporate power and authority to enter into the Agreement and the Registration
Rights Agreement and to carry out its obligations hereunder and thereunder and
to purchase the Preferred Shares and Conversion
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Shares. The execution and delivery by the Purchaser of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
Purchaser, which authorization remains in full force and effect and has not
been modified or amended by any subsequent action of such Board of Directors,
and no other corporate actions or proceedings on the part of the Purchaser are
necessary to authorize this Agreement and the Registration Rights Agreements
or the transactions contemplated hereby or thereby. The transactions
contemplated hereby will not violate the provisions of Purchaser's charter
documents. This Agreement and the Registration Rights Agreement will
constitute the valid and legally binding obligations of the Purchaser, each
enforceable in accordance with its respective terms, except to the extent that
enforceability may be limited by equity, bankruptcy, insolvency and other laws
of general applications affecting the rights and remedies of creditors and to
the extent the indemnification provisions contained in the Registration Rights
Agreement may be limited by applicable federal or state securities laws.
3.3 No Violation. The execution, delivery and
performance by the Purchaser of this Agreement and any related agreements or
contemplated transactions will not violate or constitute a breach or default
(whether upon lapse of time and/or occurrence of any act or event or otherwise)
under the charter documents of the Purchaser, any Law to which the Purchaser is
subject, or any Contract to which the Purchaser is a party that is material to
the financial condition, results of operations or conduct of the business of the
Purchaser.
3.4 Purchase for Own Account. This Agreement and the
Registration Rights Agreement are made with Purchaser in reliance upon the
Purchaser's representation to Integra that the Preferred Shares (or the
Conversion Shares) to be acquired by the Purchaser will be acquired for
investment for the Purchaser's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same, and the Purchaser will not distribute the
Preferred Shares or Conversion Shares in violation of the Securities Act. The
Purchaser further represents that it does not presently have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or grant
participations to such Person or to any third person with respect to any of
the Preferred Shares (or the Conversion Shares). The Purchaser has not been
formed for the specific purpose of acquiring the Preferred Shares (or the
Conversion Shares).
3.5 Disclosure of Information. The Purchaser has had
an opportunity to review all the information it considers material for deciding
whether to acquire the Preferred Shares (and the Conversion Shares) and to
discuss Integra's business, management, financial affairs and the terms and
conditions of the offering of the Preferred Shares with Integra's management
and has had an opportunity to review Integra's facilities.
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3.6 Restricted Securities. The Purchaser understands
that the Preferred Shares (and the Conversion Shares) have not been registered
under the Securities Act, by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Purchaser's representations as expressed herein. The Purchaser understands that
the Preferred Shares (and the Conversion Shares) are characterized as
"restricted securities" under United States federal securities laws inasmuch as
they are being acquired from Integra in a transaction not involving a public
offering and that under such laws and applicable regulations such Preferred
Shares (and the Conversion Shares) may be resold without registration under the
Securities Act only in certain limited circumstances. The Purchaser acknowledges
that the Preferred Shares (and the Conversion Shares) must be held indefinitely
unless subsequently registered under the Securities Act or an exemption from
such registration is available. The Purchaser is aware that, except as provided
in the Registration Rights Agreement, Integra is not obligated to register under
the Securities Act any sale, transfer or other disposition of the Preferred
Shares or the Conversion Shares.
3.7 No Public Market. The Purchaser understands that
no public market now exists for the Preferred Shares, and that Integra has made
no assurances that a public market will ever exist for the Preferred Shares.
3.8 Legends. The Purchaser understands that the
Preferred Shares (and the Conversion Shares), and any securities issued in
respect thereof or exchanged therefor, may bear one or all of the following
legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFI-
CATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE
EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT."
(b) Any legend required by the laws (including,
without limitation, the Blue Sky laws), of any state to the extent such laws are
applicable to the shares represented by the certificate so legended.
3.9 Accredited Investor. The Purchaser represents that:
(a) it is an accredited investor as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act; (b) its financial situation is such that
it can afford to bear the economic risk of holding the Preferred Shares and
Conversion Shares for an indefinite period of time and suffer complete loss of
its investment in the Preferred Shares and Conversion Shares; and (c) its
knowledge and experience in financial and business matters are such that it is
capable of
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evaluating the merits and risks of its purchase of the Preferred Shares and
Conversion Shares, as contemplated by this Agreement. Purchaser represents
that it has been advised by legal counsel in connection with the negotiation
and execution of this Agreement.
3.10 No Brokers or Finders. The Purchaser has not
incurred, and neither it nor Integra will incur, directly or indirectly, as a
result of any action taken by the Purchaser, any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement.
SECTION IV. COVENANTS OF INTEGRA
4.1 Advise of Changes. Until the Second Closing Date,
Integra shall promptly advise the Purchaser in writing of (i) any event known to
Integra occurring subsequent to the date hereof which would render any
representation or warranty of Integra contained in this Agreement, if made on or
as of the date of such event or any date prior to the Second Closing Date,
untrue or inaccurate in any material respect (other than an event so affecting a
representation or warranty which is expressly limited to a state of facts
existing at a time prior to the occurrence of such event) or (ii) any material
adverse change in Integra's Business.
SECTION V. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
The Purchaser's obligations to Integra under this Agreement
are subject to the fulfillment on or before each of the Closing (except as
otherwise specified) of each of the following conditions unless waived by the
Purchaser:
5.1 Representations and Warranties. On the First and
Second Closing Dates, the representations and warranties of Integra contained in
Section 2 hereof shall be true and correct in all material respects with the
same effect as though made on and as of the First and Second Closing Dates,
respectively, and Integra shall have so certified to the Purchaser in writing;
provided that the representations and warranties contained in Section 2.2 shall
be true and correct in all material respects with the same effect as though made
on and as of the Second Closing Date, subject to the issuance of Preferred
Shares on the First Closing Date consistent with this terms of this Agreement
and issuances of shares of Common Stock between the First and Second Closing
Dates.
5.2 Performance of Covenants. Integra shall have
performed all covenants required to be performed by it under this Agreement
prior to the respective Closing Date, and Integra shall have so certified to the
Purchaser in writing.
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5.3 Registration Rights Agreement. On the First
Closing Date, Integra shall have executed and delivered to the Purchaser the
Registration Rights Agreement.
5.4 No Proceeding or Litigation. No suit, action, or
other proceeding seeking to restrain, prevent or change the transactions
contemplated hereby or otherwise questioning the validity or legality of such
transactions shall have been instituted by a party other than the Purchaser and
be pending.
5.5 Qualifications. All authorizations, approvals or
permits, if any, of any Governmental Entity that are required in connection with
the lawful issuance and sale of the Preferred Shares and the Conversion Shares
pursuant to this Agreement shall be obtained and effective as of each of the
Closing Dates, and no such authorizations, approvals or permits shall have
imposed a condition which in the reasonable judgement of the Purchaser is unduly
burdensome.
5.6 Certificate of Designation. The Certificate of
Designation shall be in full force and effect as of each Closing Date and will
not have been amended or modified.
5.7 Financial Statements. The Purchaser shall have
received the most recent (as of such Closing Date) annual or quarterly
consolidated financial statements of Integra filed with the SEC.
5.8 Amended and Restated Certificate of Incorporation
and Bylaws. Integra shall have delivered to the Purchaser (i) a copy of its
Amended and Restated Certificate of Incorporation and the Certificate of
Designation, certified by the Secretary or an Assistant Secretary of Integra as
of the Closing Date, and (ii) a copy of Integra's ByLaws, as amended (certified
as of the First Closing Date by the Secretary or an Assistant Secretary of
Integra).
SECTION VI. CONDITIONS PRECEDENT TO INTEGRA'S OBLIGATIONS
The obligations of Integra to the Purchaser under this
Agreement are subject to the fulfillment on or before each of the Closing Dates
(unless otherwise specified), of each of the following conditions unless
otherwise waived by Integra.
6.1 Representations and Warranties. On the First and
Second Closing Dates, the representations and warranties of the Purchaser
contained in Section 3 hereof shall be true and correct in all material respects
with the same effect as though made on and as of such Closing Date, and the
Purchaser shall have so certified to Integra in writing.
6.2 Performance. All of the covenants, agreements and
conditions contained in this Agreement to be performed or complied with by the
Purchaser on or prior
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to the First and Second Closing Dates shall have been performed or complied
with, and the Purchaser shall have so certified to Integra in writing.
6.3 No Proceeding or Litigation. No suit, action, or
other proceeding seeking to restrain, prevent or change the transactions
contemplated hereby or otherwise questioning the validity or legality of such
transactions shall have been instituted by a party other than Integra and be
pending.
6.4 Qualifications. All authorizations, approvals or
permits, if any, of any Governmental Entity that are required in connection with
the lawful issuance and sale of the Preferred Shares and the Conversion Shares
pursuant to this Agreement shall be obtained and effective as of each of the
Closing Dates.
SECTION VII. COMPLIANCE WITH SECURITIES ACT; RESTRICTIONS ON
TRANSFERABILITY OF THE PREFERRED SHARES AND
CONVERSION SHARES
7.1 Compliance with Securities Act. The Preferred
Shares and Conversion Shares shall not be transferable, except upon the
conditions specified in this Section 6, which conditions are intended to insure
compliance with the provisions of the Securities Act and applicable state
securities laws in respect of any such transfer.
7.2 Restrictive Legends. The Preferred Shares, and
each certificate representing the Preferred Shares and any Conversion Shares or
other securities issued in respect of the Preferred Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted by the provisions of Section 7.4 below) be
stamped or otherwise imprinted with one or all of the legends set forth in
Section 3.8 hereof.
7.3 Restrictions on Transferability. The Purchaser
shall not sell, assign, give, donate, pledge or otherwise encumber or dispose of
("Transfer") any Preferred Shares or Conversion Shares or any interest therein
now held or hereafter acquired by it, except by operation of law or as provided
in this Agreement. Integra shall not be required to register the Transfer of any
Preferred Shares or Conversion Shares on its books unless it shall have been
provided with an opinion of counsel satisfactory to it prior to such Transfer
to the effect that registration under the Securities Act or any applicable
state securities laws is not required in connection with the transaction
resulting in such Transfer.
7.4 Termination of Restrictions on Transferability. The
conditions precedent imposed by this Section 7 upon the transferability of the
Conversion Shares shall cease and terminate when such securities shall have been
registered under the Securities Act and sold or otherwise disposed of in
accordance with the intended method of disposition by the seller or sellers
thereof set forth in the registration statement covering such securities, or
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when such securities are transferable in accordance with the provisions of
Rule 144 promulgated under the Securities Act. Whenever the conditions imposed
by this Section 7 shall terminate as hereinabove provided with respect to any
of the Conversion Shares, the holder of any such securities bearing the
legends set forth in Section 3.8 as to which such conditions shall have
terminated shall be entitled to receive from Integra, without expense (except
for the payment of any applicable transfer tax) and as expeditiously as
possible, new stock certificates not bearing such legends.
SECTION VIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties set forth in Sections
2.1, 2.2, 2.3, 2.4 and 2.5 shall survive the Closing and continue in full force
and effect for a period of two (2) years thereafter. None of the covenants,
agreements or the representations and warranties set forth in Sections 2.6, 2.7,
2.8 or 2.9 or Section III made herein and in the certificates delivered pursuant
thereto by the parties hereto shall survive the Closing of the transactions
contemplated hereunder except the payment of expenses pursuant to Section 9.3
hereof.
SECTION IX. MISCELLANEOUS
9.1 Arbitration.
(a) All disputes arising out of or relating to
this Agreement which cannot be settled by the parties shall promptly be
submitted to and determined in arbitration in Princeton, New Jersey if initiated
and brought by the Purchaser, or Tokyo, Japan if initiated and brought by
Integra, by a panel of three arbitrators (unless otherwise agreed by the
parties), of whom the Purchaser shall select one, Integra shall select one and
the third shall be selected by the two previously selected, pursuant to the
rules and regulations then obtaining of the American Arbitration Association.
The decision of the arbitrators shall be final and binding upon the parties and
judgement upon such decision may be entered in any court of competent
jurisdiction. The party against whom an award is rendered shall pay and
discharge all reasonable costs and expenses (including reasonable attorneys'
fees) which are incurred by the other party in obtaining such award.
(b) Discovery shall be allowed pursuant to the
intendment of the United States Federal Rules of Civil Procedure and as the
arbitrators determine appropriate under the circumstances.
(c) Such arbitrators shall be required to apply
the contractual provisions hereof in deciding any matter submitted to it and
shall not have any authority, by reason of this Agreement or otherwise, to
render a decision that is contrary to the mutual intent of the parties as set
forth in this Agreement.
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9.2 Successors. Except as otherwise provided herein,
this Agreement shall be binding upon, and shall inure to the benefit of, the
respective successors and permitted assigns of each of the parties hereto.
9.3 Expenses. The parties hereto shall each bear their
own fees and expenses and those of their respective agents and advisors, whether
or not the transactions contemplated by this Agreement are consummated.
9.4 Notice. Any notice or other communications
required or permitted hereunder shall be deemed validly given, made or served,
when delivered personally or by telecopier (except for legal process) with a
copy by recognized overnight delivery service, or upon receipt by the party
entitled to receive the notice when sent by registered or certified mail,
postage prepaid, or by a recognized overnight delivery service, addressed as
follows or to such other address or addresses or telecopier number as may
hereafter be furnished in writing by notice similarly given by one party to the
other:
To Integra: Integra LifeSciences Corporation
105 Morgan Lane
Plainsboro, NJ 08536
Fax: (609) 799-3297
Attention: Stuart M. Essig
President and Chief Executive Officer
With a copy to: John E. Stoddard III, Esq.
Drinker Biddle & Reath LLP
105 College Road East
Princeton, NJ 08542-0627
Fax: (609) 799-7000
To the Purchaser: Century Medical, Inc.
1-6-4 Ohsaki
Shinagawa-ku, Tokyo 141
Japan
Fax: (03) 3491-0577
Attention: Mr. Shunzo Saegusa
Sr. Officer
Medical Products Division
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With a copy to: Dale M. Araki, Esq.
O'Melveny & Myers LLP
Sanbancho KB-6 Bldg.
6 Sanbancho
Chiyoda-ku, Tokyo 102
Japan
Fax: (03) 3239-2432
Notice given by telecopier shall be deemed delivered on the day the sender
receives telecopier confirmation that such notice was received at the
telecopier number of the addressee. Notice given by mail as set forth above
shall be deemed received three days after the date the same is postmarked,
except that notice given by a recognized overnight delivery service as set
forth above shall be deemed received on the business day following the date
the same is sent.
9.5 Full Agreement. This Agreement, together with the
Exhibits attached hereto or delivered herewith, including the Registration
Rights Agreement, set forth the entire understanding of the parties with respect
to the transactions contemplated hereby and thereby.
9.6 Headings. The headings of the Sections of this
Agreement are inserted for convenience of reference only and shall not be
considered a part hereof.
9.7 Amendment. This Agreement may be modified, amended
or changed only with the written consent of Integra and the Purchaser.
9.8 Public Announcements. Any announcements or similar
publicity with respect to this Agreement or the transactions contemplated herein
shall be made at such time and in such manner as Integra and the Purchaser shall
agree, provided that any party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities.
9.9 Counterparts. This Agreement may be executed in
one or more counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
9.10 Delays or Omissions. No delay or omission to
exercise any right, power or remedy accruing to any party to this Agreement,
upon any breach or default of the other party, shall impair any such right,
power or remedy or such non-breaching party nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of
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any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.
9.11 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Delaware.
9.12 Severability. If any provision of this Agreement
is determined to be invalid, illegal or unenforceable by any Governmental
Entity, the remaining provisions of this Agreement to the extent permitted by
Law shall remain in full force and effect provided that the essential terms and
conditions of this Agreement for both parties remain valid, binding and
enforceable, and that the economic and legal substance of the transactions
contemplated is not affected in any manner materially adverse to any party. In
the event of any such determination, the parties agree to negotiate in good
faith to modify this Agreement to fulfill as closely as possible the original
intent and purpose hereof. To the extent permitted by Law, the parties hereby to
the same extent waive any provision of Law that renders any provision hereof
prohibited or unenforceable in any respect.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties hereto has fully
executed this Agreement as of the date first set forth above.
INTEGRA LIFESCIENCES CORPORATION
By:/s/Andre P. Decarie
-------------------
Andre P. de carie
Senior Vice President -- Business
Development
CENTURY MEDICAL, INC.
By:/s/Mitsunari Suzuki
-------------------
Mitsunari Suzuki
President and Chief Executive Officer
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