Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of September 28, 1998
(this "Agreement"), is by and between Integra LifeSciences Corporation, a
Delaware corporation (the "Company"), and GWC Health, Inc., a New Jersey
corporation ("Holder").
BACKGROUND
The parties hereto are parties to an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which the
Company has agreed to issue to Holder 800,000 shares (the "Shares") of the
Company's common stock, par value $.01 per share (the "Common Stock"), and two
warrants, each to purchase 150,000 shares of Common Stock (the "Warrants"). In
order to induce Holder to enter into the Merger Agreement, the Company has
agreed to provide certain registration rights with respect to the Shares and
the shares of Common Stock issued upon exercise of the Warrants (the "Warrant
Shares" and, together with the Shares, 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:
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 Warrants or any Eligible Securities 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 Warrants or any 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 and the Warrants are subject to
limitations on transferability under the Securities Laws.
1.3 Except as set forth in Sections 2 and 3 hereof, no transfer
(other than to an affiliate of Holder) of the Warrants or any 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.
2. DEMAND REGISTRATION
2.1 Following the exercise in full of either or both of the Warrants,
Holder may make a written request for registration under the Act of all or
part of the Warrant Shares (a "Demand Registration"), which request shall
state the intended method of disposition thereof, and the Company will use
commercially reasonable efforts to cause the Warrant Shares as to which
registration shall have been so requested to be covered by a registration
statement. Holder shall be entitled to request two Demand Registrations. Each
Demand Registration shall be on Form S-3 if such Form is then available for
use by the Company. The Company may exclude the Warrant Shares 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 Warrant Shares to the public.
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, which investment
bankers or managers shall be reasonably acceptable to Holder. If any of the
Warrant Shares 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) Holder and (iii) the stockholders of the
Company with respect to securities of the Company other than the Warrant
Shares, 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 Holder based on the number of Warrant Shares it desires to
sell in the underwritten offering; second, to the Company; and thereafter pro
rata among all selling stockholders, if any (which may include Holder with
respect to the Shares), based on the number of shares (including any of the
Shares) otherwise proposed to be included therein by such 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 the Warrant Shares registered for sale are sold pursuant to the
registration statement.
2.4 The Company's obligations under this Section 2 shall terminate
when Holder may sell or otherwise transfer all Warrant Shares without
registration under the Act by virtue of Rule 144(k) under the Act (or any
similar provision in force).
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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 (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, unless (i) no
stockholders of the Company propose to register or sell their securities in
connection with such offering and (ii) the proceeds to the Company from such
offering (after deduction of underwriting discounts and commissions) are
reasonably expected to be less than $10,000,000. Upon the written request of
Holder, given within 20 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
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.
3.2 (a) If any of the Eligible Securities to be registered pursuant
to a registration statement filed pursuant to this Section 3 are to be sold in
a firm commitment underwritten offering in which the Company proposes to sell
securities for its own account, 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) 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 Holder and all other selling stockholders, if any, based on the number
of shares otherwise proposed to be included therein by Holder and such other
selling stockholders.
(b) If any of the Eligible Securities to be registered pursuant to a
registration statement filed pursuant to this Section 3 are to be sold in a
firm commitment underwritten offering in which the Company does not propose to
sell securities for its own account but in which one or more past, present or
future directors, officers or employees of the Company, their immediate family
members or trusts established for the benefit of any of the foregoing
("Insiders") propose to sell securities, and if the managing underwriter or
underwriters advise the Insiders 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 Insiders, (ii) Holder and (iii) the
stockholders of the Company with respect to securities of the Company other
than the Eligible Securities (the "Other Stockholders"), would adversely
affect the success of such offering, there shall be included in such firm
commitment underwritten offering only the
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amount of 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 on a pro rata basis among all selling stockholders (including the
Insiders and Holder), based on the number of shares otherwise proposed to be
included therein by the Insiders, Holder and the Other 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 Holder may sell or otherwise transfer all Eligible Securities without
registration under the Act by virtue of Rule 144(k) 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 this Section 3,
the Holder shall forthwith discontinue disposition of Eligible Securities
covered by such registration statement.
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 90-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 customary form reasonably
acceptable to such underwriter, Holder and the Company.
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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
as Holder reasonably requests or, in the event of a firm commitment
underwritten offering, such 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;
(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 (but in any event
within 30 days) so that, as thereafter delivered to the purchasers of such
Eligible Securities, such prospectus will not contain an untrue
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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 to Holder (or otherwise provide in accordance with
Section 11(a) of the Act) an earning statement satisfying the provisions of
Section 11(a) of the Act, no later than 45 days after the end of the first
12-month period (or 90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter commencing after the
effective date of such registration statement, which earning statement shall
cover such 12-month period;
(f) 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;
(g) notwithstanding that the Company may not be or required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the Commission (unless the Commission will
not accept such a filing, in which case the Company shall provide such
documents to Holder) and make available to Holder such annual reports and such
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections;
(h) 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
(i) otherwise comply with all applicable rules and regulations of the
Commission.
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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 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.
6. REGISTRATION EXPENSES
6.1 Except as otherwise provided in this Agreement, the Company shall
pay all expenses incurred in complying with Sections 2 and 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 disbursements of one counsel of Holder (not to exceed
$20,000), 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"); 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 Holder
other than those expressly assumed by the Company in this Agreement shall be
borne by Holder, including 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.
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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");
(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 therein
or necessary to make the statements made not misleading.
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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.
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.
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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; provided, however, that any contribution obligation of Holder
under this Section 8.4 shall be limited to the net proceeds to Holder from the
offering of its Eligible Securities. 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
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.
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 to all participants 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.
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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, 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:
If to the Company:
Integra LifeSciences Corporation
105 Morgan Lane
Plainsboro, NJ 08536
Attention: President
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:
GWC Health, Inc.
c/o Elan Corporation, plc
Lincoln House
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Lincoln Place
Dublin 2, Ireland
Attention: General Counsel
Fax: 353-1-662-4949
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Fax: (212) 269-5420
Attention: William M. Hartnett, Esq.
and
Athena Neurosciences, Inc.
800 Gateway Boulevard
South San Francisco, CA 94080
Fax: (650) 875-3620
Attention: General Counsel
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 New York, New York 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 either
party from seeking, in any court of competent jurisdiction, damages, specific
performance or other equitable remedies in the case of any breach or
threatened breach by the other party of any provision 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) In any such arbitration proceeding, the prevailing party shall be
entitled to recover reasonable fees and disbursements of counsel in addition
to any other available remedy.
(d) 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
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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 Assignment. Neither party hereto may assign this Agreement to
any person without the prior written consent of the other party hereto; except
that Holder may assign, subject to the provisions of Section 1.3 hereof, this
Agreement to any person to which it sells or otherwise transfers ownership of
any Eligible Securities or Warrants without the prior written consent of the
Company, provided that such person agrees in writing to be bound by the terms
of this Agreement.
10.9 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.
10.10 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.
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10.11 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 New York 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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GWC HEALTH, INC.
By: /s/ Thomas Lynch
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