Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 30, 1998
(this "Agreement"), is by and between Integra LifeSciences Corporation, a
Delaware corporation (the "Company"), and Century Medical, Inc. ("Holder").
BACKGROUND
The parties hereto are parties to an Agreement, dated as of
February 25, 1998 (the "Purchase Agreement"), pursuant to which the Company
has agreed to issue to the Holder an aggregate of 500,000 shares of the
Company's Series A Convertible Preferred Stock, par value $.01 per share (the
"Series A Preferred"). As a Holder of Series A Preferred, the Holder will have
the right to convert shares of such Series A Preferred into shares of the
Company's common stock, par value $.01 per share ("Common Stock"). In order to
induce the Holder to enter into the Purchase Agreement, the Company has agreed
to provide registration rights with respect to such shares of Common Stock
(the "Eligible Securities") on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
SECTION 1. ACKNOWLEDGEMENTS OF HOLDER
1.1 Holder acknowledges and understands that, except as set
forth in Sections 2 and 3 hereof, the Company has no obligation or intention
to (i) register the sale of the Eligible Securities that may be issued or
issuable to Holder upon the conversion of the Series A Preferred under the
Securities Act of 1933, as amended (the "Securities Act," and all regulations
promulgated thereunder are herein collectively referred to as the "Act"), or
applicable state securities or blue sky laws (collectively, "State Securities
Laws"), or (ii) otherwise comply with any requirements necessary for transfer
or assignment of the Eligible Securities to be exempt from such registration.
The Act and State Securities Laws are hereinafter sometimes collectively
referred to as the "Securities Laws."
1.2 The Eligible Securities are subject to limitations on
transferability under the Securities Laws.
1.3 Except as set forth in Sections 2 and 3 hereof, no
transfer of the Eligible Securities shall be effected unless a written opinion
of legal counsel that is acceptable to counsel for the Company shall be
delivered to the Company to the effect that a contemplated transfer may be
effected without registration under the Securities Laws.
SECTION 2. DEMAND REGISTRATION
2.1 If the Distribution Agreement dated February 25, 1998
between Integra LifeSciences Surgical Products Corporation, a wholly-owned
subsidiary of the Company ("ILSP"), and Holder is terminated (i) by ILSP or
(ii) by Holder due to a material breach of the Distribution Agreement by ILSP,
the Holder may, on or prior to the second anniversary of the date of this
Agreement, make a written request for registration under the Act of all or
part of its Eligible Securities (a "Demand Registration"), which request shall
state the intended method of disposition thereof, and the Company will use
commercially reasonable efforts to cause the Eligible Securities as to which
registration shall have been so requested to be covered by a registration
statement. The Holder shall be entitled to request one Demand Registration,
which shall be on Form S-3 if such Form is then available for use by the
Company. The Company may exclude the Eligible Securities of Holder from
registration pursuant to this Section 2 if the Holder fails to provide
information reasonably requested by the Company with respect to the intended
method of distribution of the Eligible Securities to the public.
Notwithstanding the foregoing, the Company shall have no obligation to
register less than 250,000 of Holder's Eligible Securities in any registration
statement filed pursuant to this Section 2.1.
2.2 If the Demand Registration is in the form of an
underwritten offering, the Company shall select the investment banker or
investment bankers and manager or managers that will administer the offering.
If any of the Eligible Securities to be registered pursuant to a registration
statement filed pursuant to this Section 2 are to be sold in a firm commitment
underwritten offering, and if the managing underwriter or underwriters advise
the Company in writing that in its or their opinion the aggregate amount of
securities proposed to be sold in such firm commitment underwritten offering
by (i) the Company for its own account, (ii) the Holder and (iii) the
stockholders of the Company with respect to securities of the Company other
than the Eligible Securities, would adversely affect the success of such
offering, there shall be included in such firm commitment underwritten
offering only the amount of such securities which in the opinion of such
underwriters can be sold in the proposed underwritten offering, and the amount
of such securities shall be allocated first, to the Holder based on the number
of shares it desires to sell in the underwritten offering; second, to the
Company; and thereafter pro rata among all other selling stockholders, if any,
based on the number of shares otherwise proposed to be included therein by
such other selling stockholders.
2.3 The Company shall use commercially reasonable efforts to
cause such registration statement to remain effective until the earlier to
occur of (i) 90 days after the effective date of the registration statement or
(ii) until all Eligible Securities registered for sale are sold pursuant to
the registration statement.
2.4 The Company's obligations under this Section 2 shall
terminate when the Holder may sell or otherwise transfer the Eligible
Securities without registration under the Act by virtue of Rule 144 under the
Act (or any similar provision in force).
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SECTION 3. PIGGYBACK REGISTRATION
3.1 If the Company at any time proposes to register any of
its Common Stock under the Act for sale to the public for cash in which
proceeds to the Company from such offering (after deduction of underwriting
discounts and commissions) are reasonably expected to be not less than
$20,000,000 (except with respect to registration statements on Forms S-8, S-4
or other forms not available for registering the Eligible Securities for sale
to the public), each such time it will give written notice to Holder of its
intention so to do. Upon the written request of Holder, given within ten days
after receipt of any such notice, to register any of its Eligible Securities
(which request shall state the intended method of disposition thereof), the
Company will use commercially reasonable efforts to cause the Eligible
Securities as to which registration shall have been so requested to be
included in the Common Stock to be covered by the registration statement
proposed to be filed by the Company. The Company may exclude the Eligible
Securities of Holder from registration pursuant to this Section 3, if the
Holder fails to provide information reasonably requested by the Company with
respect to the intended method of distribution of the Eligible Securities to
the public. Notwithstanding the foregoing, the Company shall have no
obligation to register less than 250,000 of Holder's Eligible Securities in
any registration statement filed pursuant to this Section 3.1.
3.2 If any of the Eligible Securities to be registered
pursuant to a registration statement filed pursuant to this Section 3 is to be
sold in a firm commitment underwritten offering, and if the managing
underwriter or underwriters advise the Company in writing that in its or their
opinion the aggregate amount of securities proposed to be sold in such firm
commitment underwritten offering by (i) the Company for its own account, (ii)
the Holder and (iii) the stockholders of the Company with respect to
securities of the Company other than the Eligible Securities, would adversely
affect the success of the Company's sale of its securities in such offering,
there shall be included in such firm commitment underwritten offering only the
amount of such securities which in the opinion of such underwriters can be
sold in the proposed underwritten offering, and the amount of such securities
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 Holder of the Eligible Securities and all other
selling stockholders, if any, based on the number of shares otherwise proposed
to be included therein by the Holder and such other selling stockholders.
3.3 The Company shall use commercially reasonable efforts to
cause such registration statement to remain effective until the earlier to
occur of (i) 90 days after the effective date of the registration statement or
(ii) until all Eligible Securities registered for sale are sold pursuant to
the registration statement.
3.4 The Company's obligations under this Section 3 shall
terminate when the Holder may sell or otherwise transfer the Eligible
Securities without registration under the Act by virtue of Rule 144 under the
Act (or any similar provision in force).
3.5 Notwithstanding the foregoing provisions in this Section
3, the Company may delay the effectiveness or withdraw, prior to
effectiveness, any registration statement referred to in this Section 3
without thereby incurring any liability to Holder. Upon receipt of any notice
from the Company of a delay or withdrawal of a registration statement pursuant
to
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this Section 3, the Holder shall forthwith discontinue disposition of Eligible
Securities covered by such registration statement.
SECTION 4. HOLDBACK AGREEMENTS
4.1 Except to the extent of any Eligible Securities included
in a registration statement under Sections 2 or 3 hereof, Holder agrees not to
effect any public sale or distribution of securities of the same class as
those being registered or a similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including
a sale pursuant to Rule 144 under the Act, during the 14 days prior to, and
during the 180-day period beginning on, the effective date of any registration
statement filed by the Company under the Act registering its securities for
sale to the public. If requested by the Company's managing underwriter, Holder
will execute and deliver a lock-up agreement in a form acceptable to such
underwriter and the Company for purposes of its obligations under this Section
4.
SECTION 5. REGISTRATION PROCEDURES
5.1 If and whenever the Company is required by the
provisions of this Agreement to effect or cause the registration of any
Eligible Securities under the Act pursuant to Sections 2 or 3 hereof, the
Company will use commercially reasonable efforts to effect the registration
and the sale of such Eligible Securities in accordance with the intended
method of disposition thereof as promptly as reasonably practicable, and in
connection with any such request, the Company shall:
(a) furnish to Holder, and if requested, to
Holder's investment adviser, prior to filing a registration statement, copies of
such registration statement as 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 Holder may reasonably request in order to facilitate the disposition
of such Eligible Securities owned by Holder, which are included in such
registration statement;
(b) use commercially reasonable efforts to
register or qualify (or obtain an exemption from such registration or
qualification) such Eligible Securities under the state securities or blue sky
laws of such jurisdictions, not to exceed five in number, as Holder reasonably
requests, or, in the event of a firm commitment underwritten offering, such
larger number of jurisdictions as the managing underwriter or underwriters shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable Holder to consummate the disposition
in such jurisdictions of the Eligible Securities; provided that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 5.1(b),
(ii) subject itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction;
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(c) use commercially reasonable efforts to cause
the Eligible 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
Holder to consummate the disposition of such Eligible Securities;
(d) notify Holder, at any time when a prospectus
relating thereto is required to be delivered under the Act, of 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
made therein, in the light of the circumstances under which they were made, not
misleading, and the Company will prepare a supplement or amendment to such
prospectus as soon as reasonably practicable thereafter (except that the
Company may avoid supplementing or amending such prospectus for up to 90 days
when such non-disclosure is in the interests of the Company) so that, as
thereafter delivered to the purchasers of such Eligible Securities, such
prospectus will 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;
(e) make available for inspection by Holder, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by Holder or any
such underwriter (collectively, the "Inspectors"), all pertinent financial and
other records, pertinent corporate documents and properties and other
pertinent information of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all pertinent information reasonably requested by any such Inspector in
connection with such registration statement. Records which 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
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) the information in such Records has been made
generally available to the public. Holder 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;
(f) use commercially reasonable efforts to cause
all such Eligible Securities to be listed on the principal securities exchange
on which shares of the Company's Common Stock are then traded, or such if any,
provided that the applicable listing requirements are satisfied; and
(g) otherwise use commercially reasonable best
efforts to comply with all applicable rules and regulations of the Commission.
5.2 Holder shall, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 5.1(d)
hereof, discontinue disposition of the Eligible Securities pursuant to the
registration statement covering such Eligible Securities
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until Holder receives copies of the supplemented or amended prospectus
contemplated by Section 5.1(d) hereof, and, if so directed by the Company,
Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in Holder's possession, of the
prospectus covering such Eligible Securities current at the time of receipt of
such notice. 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 by the number of days during the period
from and excluding the date of the giving of such notice pursuant to Section
5.1(d) hereof to and including the date when Holder shall have received the
copies of the supplemented or amended prospectus contemplated by Section
5.1(d) hereof.
SECTION 6. REGISTRATION EXPENSES
6.1 Except as otherwise provided in this Agreement, the
Company shall pay all expenses incurred in complying with Sections 2 or 3
hereof, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Eligible Securities), rating agency fees, printing
expenses, messenger and delivery expenses, mailing expenses, internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the fees and expenses
incurred in connection with the listing of the securities to be registered on
each securities exchange on which such securities are required to be listed,
fees and disbursements of counsel for the Company and its independent
certified public accountants, the reasonable fees and expenses of any special
experts retained by the Company in connection with such registration, and fees
and expenses of other persons retained by the Company (all such expenses being
herein called "Registration Expenses") will be borne by the Company; 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; and provided
further, that all expenses of the Holder other than those expressly assumed by
the Company in this Agreement shall be borne by Holder, including the fees and
expenses of Holder's counsel, underwriting discounts and commissions,
brokerage commissions, and non-accountable expense allowances attributable to
the sale of Holder's Eligible Securities, and Holder's other out-of-pocket
expenses.
SECTION 7. OBLIGATIONS OF THE HOLDER
7.1 Following the filing of a registration statement
registering the Eligible Securities of Holder and during any period that the
registration statement is effective, Holder shall:
(a) 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");
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(b) furnish each broker or dealer through whom
Holder offers Eligible Securities such number of copies of the prospectus as the
broker may require and otherwise comply with prospectus delivery requirements
under the Act;
(c) report to the Company each month all sales,
pledges and other dispositions of Eligible Securities made by Holder during said
month;
(d) 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 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;
(e) not offer or agree to pay, directly or
indirectly, to anyone any compensation for soliciting another to purchase, or
for purchasing (other than for Holder's own account), any securities of the
Company on a national securities exchange in contravention of Regulation M under
the Exchange Act;
(f) cooperate in all respects with the Company
as it fulfills its obligations under Sections 2 and 3 of this Agreement;
(g) furnish such information concerning Holder
and the distribution of the Eligible Securities as the Company may from time to
time request;
(h) sell Eligible Securities only in the manner
described in the Registration Statement; and
(i) not sell Eligible Securities during any
period after the Company has provided notice to Holder pursuant to Section
5.1(d) above and until the Company provides to Holder notice that the
registration statement no longer fails to state a material fact required to be
stated therein, misstates a material fact or omits to state a material fact
required to be stated therei or necessary to make the statements made not
misleading.
SECTION 8. INDEMNIFICATION; CONTRIBUTION
8.1 Indemnification by the Company. The Company shall
indemnify and hold harmless, to the fullest extent permitted by law, Holder
against all losses, claims, damages, liabilities and expenses (including
reasonable attorneys' fees) caused by any untrue statement of a material fact
contained in any registration statement, prospectus or preliminary prospectus
or any omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein (in the case of a prospectus,
in the light of the circumstances under which they were made) not misleading,
except insofar as the same are caused by or contained in any information with
respect to Holder furnished to the Company by Holder for use therein or caused
by Holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto in accordance with the
requirements of the Act after the Company has furnished Holder with a copy of
the same.
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8.2 Indemnification by Holder. In connection with any
registration statement in which Holder is participating, Holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and shall indemnify and hold harmless, to the extent permitted
by law, the Company, its directors, each of its officers and each person who
controls the Company (within the meaning of the Act) against any losses,
claims, damages, liabilities and expenses (including reasonable attorneys'
fees) resulting from any untrue statement of a material fact or any omission
of a material fact required to be stated in the registration statement or
prospectus or any amendment thereof or supplement thereto, or necessary to
make the statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, but only to the
extent that such untrue statement or omission is caused by or contained in any
information or affidavit so furnished in writing by Holder, or caused by
Holder's failure to deliver a copy of the prospectus or any amendments or
supplements thereto in accordance with the requirements of the Act after the
Company has furnished Holder with a copy of the same.
8.3 Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder shall give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which such person may claim indemnification or
contribution pursuant to this Agreement and, unless in the reasonable judgment
of such indemnified party a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claim,
permit the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to such indemnified party. If the indemnifying party
is not entitled to, or elects not to, assume the defense of a claim, it will
not be obligated to pay the fees and expenses of more than one counsel with
respect to such claim. The indemnifying party will not be subject to any
liability for any settlement made without its consent.
8.4 Contribution.
(a) If the indemnification provided for in this
Section 8 from the indemnifying party is unavailable or insufficient to hold
harmless an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to herein, 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 fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party
or indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to
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include, subject to the limitations set forth in Section 8.3 hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding.
(b) The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 8.4 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.
(c) If indemnification is available under this
Section 8, the indemnifying party shall indemnify the indemnified party to the
full extent provided in Sections 8.1 and 8.2 hereof without regard to the
relative fault of said indemnifying party or indemnified party or any other
equitable consideration provided for in this Section 8.4.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
9.1 Holder may not participate in any underwritten
registration hereunder unless Holder (a) agrees to sell its securities on the
basis provided in any underwriting arrangements approved by the Company and
(b) completes and executes all questionnaires, custody agreements, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
SECTION 10. MISCELLANEOUS
10.1 Information Blackout. Upon written notice from the
Company to Holder that the Company has determined in good faith that sale of
Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information not otherwise required to be
disclosed under applicable law, the Company may postpone the filing or
effectiveness of any registration statement hereunder and, if such
registration statement has become effective, the Company shall not be required
to maintain the effectiveness of such registration statement and a Holder
shall suspend sales of Eligible Securities pursuant to such registration
statement, in each case, until such time as the Company notifies the Holder
that such information has been disclosed to the public or that sales pursuant
to such registration statement may otherwise be resumed.
10.2 Notices. Any notice, request, consent, demand or other
communication required or permitted under this Agreement shall be made in
writing and shall be deemed to have been duly given if (a) mailed by first
class registered or certified mail, return receipt requested, postage prepaid
(and shall be deemed delivered two days after the date received for delivery
by the U.S. Postal Service, whether or not accepted), (b) sent by nationally
recognized next-day delivery courier that guarantees delivery within 24 hours,
charges prepaid (and shall be deemed delivered one business day after delivery
to said courier), or (c) sent by telefax, telecopier or similar transmission
(and shall be deemed delivered on the date confirmation of the receipt of the
transmission is given), if the appropriate telefax, telecopier or transmission
number is included in the address, addressed to the parties hereto at their
respective addresses as follows:
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If to the Company:
Integra LifeSciences Corporation
105 Morgan Lane
Plainsboro, NJ 08536
Attention: Stuart M. Essig, Ph.D.
President and Chief Executive Officer
Fax: (609) 799-3297
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
If to Holder:
Century Medical, Inc.
1-6-4 Ohsaki
Shinagawa-ku, Tokyo 141
Japan
Attention: Mr. Shunzo Saegusa
Sr. Officer
Medical Products Division
Fax: (03) 3491-0577
with a copy to:
Dale M. Araki, Esq.
O'Melveny & Myers LLP
Sanbancho KB-6 Bldg.
Chiyoda-ku, Tokyo 102
Japan
Fax: (03) 3239-2432
10.3 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 Holder, or Tokyo, Japan if initiated and brought by the Company,
by a panel of three arbitrators (unless otherwise agreed by the parties), of
whom the Holder shall select one, the Company 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; provided
that nothing herein shall preclude the Company from seeking, in any court of
competent jurisdiction, damages, specific performance or other equitable
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remedies in the case of any breach or threatened breach by Holder of Section 4
hereof. 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.
(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 arbitrator 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.
10.4 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.5 Severability. In the event that 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 contained herein shall not be in any
way impaired thereby.
10.6 Entire Agreement; Amendments. This Agreement sets forth
all the promises, covenants, agreements, conditions and understandings among
the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, negotiations and understandings,
inducements and conditions, express or implied, oral or written, except as
contained herein. Neither this Agreement nor any provisions hereof may be
modified, amended, waived, discharged or terminated, in whole or in part,
except by a writing signed by all of the parties hereto.
10.7 Waiver. No waiver by any party hereto of any condition
or release of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed or
construed as a further or continuing waiver of any such condition or any such
breach or waiver of any other condition.
10.8 Binding Nature; Benefit. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. Except as otherwise expressly
permitted herein, this Agreement shall not be construed as giving any person,
other than the parties hereto and their respective permitted successors or
assigns any legal or equitable right, remedy or claim under or in respect of
this Agreement or any of the provisions herein contained, this Agreement and
all provisions and conditions hereof being intended to be, and being, for the
sole and exclusive benefit of such parties, and permitted successors or
assigns and for the benefit of no other person or entity.
10.9 Assignment. The Holder may not transfer or assign,
without the prior written consent of the Company, any rights which may accrue
to Holder hereunder. Notwithstanding the foregoing, the Holder may assign,
subject to the provisions of Section 1.3
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hereof, the registration rights contained herein to any transferee who
acquires more than 250,000 shares of Holder's Series A Preferred or more than
250,000 shares of Common Stock issued upon conversion of such Series A
Preferred, provided that the Company shall have no obligation to register any
shares of Series A Preferred to any transferee unless (i) the Holder gives the
Company at least 15 days written notice prior to such transfer, (ii) any
transfer of Series A Preferred or shares of Common Stock issued upon
conversion of such Series A Preferred must be completed at least ten days
prior to the filing of a registration statement pursuant to Sections 2 or 3
hereof and (iii) such transferee agrees in writing to be bound by the terms
and conditions of this Agreement.
10.10 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.
10.11 Term. This Agreement shall terminate and be of no
further force or effect on the second anniversary of the Second Closing Date
(as defined in the Purchase Agreement).
10.12 Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed and
interpreted in accordance with the internal laws of the State of Delaware
applicable to contracts made and to be performed wholly therein without regard
to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
INTEGRA LIFESCIENCES CORPORATION
By: /s/ Stuart M. Essig
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Name: Stuart M. Essig
Title: President & CEO
CENTURY MEDICAL, INC.
By: /s/ Mitsunari Suzuki
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Name: Mitsunari Suzuki
Title: President
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