Exhibit 4.1
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES B
CONVERTIBLE PREFERRED STOCK
OF
INTEGRA LIFESCIENCES CORPORATION
Integra LifeSciences Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY THAT:
A. Pursuant to authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation of the Corporation, as amended
(as amended, the "Certificate of Incorporation"), and pursuant to the provisions
of Section 151 of Title 8 of the Delaware Code of 1953, as amended, said Board
of Directors, at a meeting held on February 25, 1999, adopted resolutions
providing for the designation, preferences and relative, participating, optional
and other special rights, and the qualifications, limitations and restrictions
of the Corporation's Series B Convertible Preferred Stock, which resolutions are
as follows:
WHEREAS, the Certificate of Incorporation of this Corporation
provides for two classes of shares known as Common Stock, par value $.01 per
share, and Preferred Stock, par value $.01 per share; and
WHEREAS, the Board of Directors of this Corporation is
authorized by the Certificate of Incorporation to provide for the issuance of
the shares of Preferred Stock in series, and by filing a certificate pursuant to
the applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
preferences and rights of the shares of each such series and the qualifications,
limitations and restrictions thereof.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors
deems it advisable to, and hereby does, designate a Series B Convertible
Preferred Stock and fixes and determines the preferences, rights,
qualifications, limitations and restrictions relating to the Series B
Convertible Preferred Stock as follows:
1. Designation/Ranking. The shares of such series of Preferred Stock
shall be designated as "Series B Convertible Preferred Stock" (referred to
herein as the "Series B Convertible Preferred Stock"). The Series B Convertible
Preferred Stock shall rank senior to the Corporation's Common Stock and all
other Preferred Stock of the Company, with respect to the payment of
distributions on liquidation, dissolution or winding up of the Corporation and
with respect to the payment of dividends.
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2. Authorized Number. The number of shares constituting the Series B
Convertible Preferred Stock shall be 120,000 shares.
3. Dividends. The holders of Series B Convertible Preferred Stock
shall be entitled to receive, out of funds legally available for such purpose,
annual cumulative dividends which shall accrue at the rate of 10% per annum,
payable upon the liquidation, dissolution or winding up of the Corporation.
Dividends on each share of Series B Convertible Preferred Stock
shall be cumulative and shall accrue from the date of issuance of such share of
Series B Convertible Preferred Stock. The date on which the Corporation
initially issues any share of Series B Convertible Preferred Stock shall be
deemed to be its "date of issuance," regardless of the number of times of
transfer of such shares is made on the stock records maintained by or for the
Corporation and regardless of the number of certificates that may be issued to
evidence such share.
4. Liquidation.
(a) Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, in which all or substantially all of the
consideration, if any, received by the Corporation or its stockholders is in
cash, the holders of the shares of Series B Convertible Preferred Stock shall be
paid, before any distribution or payment is made upon any stock ranking on
liquidation junior to the Series B Convertible Preferred Stock, an amount equal
to $100 per share plus, in the case of each share, an amount equal to any
dividends declared but unpaid thereon, through the date payment thereof is made
available, and the holders of Series B Convertible Preferred Stock shall not be
entitled to any further payment (such amount payable with respect to one share
of Series B Convertible Preferred Stock being sometimes referred to as the
"Liquidation Payment" and with respect to all shares of Series B Convertible
Preferred Stock being sometimes referred to as the "Liquidation Payments").
(b) Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, in which all or substantially all of the
consideration, if any, received by the Corporation or its stockholders is in
securities, the Corporation shall have the option, at its election, of paying
such Liquidation Payments to the holders of the shares of Series B Convertible
Preferred Stock in cash or in a preferred security of the successor entity
having terms substantially similar to the Series B Convertible Preferred Stock.
(c) If upon such liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the assets to be distributed
among the holders of Series B Convertible Preferred Stock shall be insufficient
to permit payment to the holders of Series B Convertible Preferred Stock of the
Liquidation Payments, then the entire assets of the Corporation to be so
distributed shall be distributed ratably among the holders of Series B
Convertible Preferred Stock. Upon any such liquidation, dissolution or winding
up of the Corporation, after the holders of Series B Convertible Preferred Stock
shall have been paid in full
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the Liquidation Payments to which they shall be entitled, the Series B
Convertible Preferred Stock shall be automatically cancelled and the remaining
net assets of the Corporation may be distributed to the holders of stock ranking
on liquidation junior to the Series B Convertible Preferred Stock.
(d) Written notice of such liquidation, dissolution or winding up,
stating a payment date, the amount of the Liquidation Payments and the place
where said Liquidation Payments shall be payable, shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, not less than 10 days prior to the payment date stated
therein, to the holders of record of Series B Convertible Preferred Stock, such
notice to be addressed to each such holder at its address as shown by the
records of the Corporation.
(e) For purposes of this paragraph 4, a liquidation, dissolution or
winding up of the Corporation shall be deemed to include (i) the Corporation's
sale of all or substantially all of its assets or (ii) the merger or
consolidation of the Corporation into or with any other corporation, in which
all or substantially all of the consideration received by the Corporation or its
stockholders in connection with such sale, merger or consolidation is: (x) in
cash, or (y) in securities of the acquiring company or an affiliate thereof
having a fair market value per share of Common Stock which is lower than the
Conversion Price (as defined below) as last adjusted and in effect at the date
of such liquidation, dissolution or winding up; provided that a liquidation,
dissolution or winding up of the Corporation shall not include a sale, merger or
consolidation in which all or substantially all of the consideration received by
the Corporation or its stockholders in connection therewith is in securities of
the acquiring company or an affiliate thereof having a fair market value per
share of Common Stock which is equal to or greater than the Conversion Price as
last adjusted and in effect on the date of such liquidation, dissolution or
winding up. Nothing in this paragraph 4 shall limit the rights of the holders of
the Series B Convertible Preferred Stock to convert their shares of Series B
Convertible Preferred Stock in accordance with the terms hereof prior to a
liquidation, dissolution or winding up of the Corporation.
(f) The Series B Convertible Preferred Stock shall, with respect to
distribution of assets and rights upon the liquidation, dissolution or winding
up of the Corporation, rank on a parity with any class or series of capital
stock of the Corporation hereafter created which expressly provides that it
ranks on a parity with the Series B Convertible Preferred Stock with respect to
distribution of assets and rights upon the liquidation, dissolution or winding
up of the Corporation. The Series B Convertible Preferred Stock shall, with
respect to distribution of assets and rights upon the liquidation, dissolution
or winding up of the Corporation, rank senior to (i) the Corporation's Series A
Convertible Preferred Stock, $.01 par value per share, and (ii) each class or
series of capital stock of the Corporation hereafter created which does not
expressly provide that it ranks on a parity with or senior to the Series B
Convertible Preferred Stock with respect to distribution of assets and rights
upon the liquidation, dissolution or winding up of the Corporation.
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5. Restrictions. At any time when shares of Series B Convertible
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by the Corporation's Articles of Incorporation, and in addition to any other
vote required by law or the Corporation's Articles of Incorporation, without the
approval of the holders of at least 66 2/3% of the then outstanding shares of
Series B Convertible Preferred Stock, given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a series, the
Corporation will not:
(a) Create, issue or authorize the creation or issuance of any
additional class or series of shares of stock unless the same ranks junior to
the Series B Convertible Preferred Stock as to the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or increase the
authorized amount of the Series B Convertible Preferred Stock or increase the
authorized amount of any additional class or series of shares of stock unless
the same ranks junior to the Series B Convertible Preferred Stock as to the
distribution of assets on the liquidation, dissolution or winding up of the
Corporation, or create, issue (other than to the holder of any shares of Series
B Convertible Preferred Stock) or authorize the creation or issuance of any
obligation or security convertible into shares of Series B Convertible Preferred
Stock or into shares of any other class or series of stock unless the same ranks
junior to the Series B Convertible Preferred Stock as to the distribution of
assets on the liquidation, dissolution or winding up of the Corporation, whether
any such creation, issuance, authorization or increase shall be by means of
amendment to the Corporation's Articles of Incorporation or by merger,
consolidation or otherwise; or
(b) effect any transaction or other action that would adversely affect
the rights, preferences, powers (including, without limitation, voting powers)
and privileges of the Series B Preferred Stock; provided that a merger or sale
of substantially all of the Corporation's assets in which all or substantially
all of the consideration is stock of the acquiring company or an affiliate
thereof shall not require the consent or vote of the holders of Series B
Convertible Preferred Stock separately as a series.
6. Conversions. The holders of shares of Series B Convertible Preferred
Stock shall have the following conversion rights:
(a) Right to Convert. Subject to the terms and conditions of this
paragraph 6, the holder of any share or shares of Series B Convertible Preferred
Stock shall have the right, at its option at any time, to convert any such
shares (or fractions thereof) of Series B Convertible Preferred Stock (except
that upon any liquidation, dissolution or winding up of the Corporation the
right of conversion shall terminate at the close of business on the business day
immediately preceding the date fixed for payment of the amount distributable on
the Series B Convertible Preferred Stock) into such number of fully paid and
nonassessable shares of Common Stock as is obtained by (i) multiplying the
number of shares of Series B Convertible Preferred Stock so to be converted by
$100 and (ii) dividing the result by the conversion price of $3.82 per share or,
in case an adjustment of such price has taken place pursuant to the further
provisions of this paragraph 6, then by the conversion price as last adjusted
and in effect at the date any share or shares of Series B Convertible Preferred
Stock are surrendered for conversion
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(such price, or such price as last adjusted, being referred to as the
"Conversion Price"). Such rights of conversion shall be exercised by the holder
thereof by giving written notice that the holder elects to convert a stated
number of shares of Series B Convertible Preferred Stock into Common Stock and
by surrender of a certificate or certificates for the shares so to be converted
to the Corporation at its principal office (or such other office or agency of
the Corporation as the Corporation may designate by notice in writing to the
holders of the Series B Convertible Preferred Stock) at any time during its
usual business hours on the date set forth in such notice, together with a
statement of the name or names (with address) in which the certificate or
certificates for shares of Common Stock shall be issued.
(b) Issuance of Certificates; Time Conversion Effected. Promptly after
the receipt of the written notice referred to in subparagraph 6(a) and surrender
of the certificate or certificates for the share or shares of Series B
Convertible Preferred Stock to be converted, the Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder, registered in such
name or names as such holder may direct, a certificate or certificates for the
number of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series B Convertible Preferred Stock. To the extent permitted
by law, such conversion shall be deemed to have been effected and the Conversion
Price shall be determined as of the close of business on the date on which such
written notice shall have been received by the Corporation and the certificate
or certificates for such share or shares shall have been surrendered as
aforesaid, and at such time the rights of the holder of such share or shares of
Series B Convertible Preferred Stock shall cease, and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares of Common Stock represented thereby.
(c) Fractional Shares; Partial Conversion. No fractional shares of
Common Stock shall be issued upon conversion of Series B Convertible Preferred
Stock into Common Stock and no payment or adjustment shall be made upon any
conversion on account of any cash dividends on the Common Stock issued upon such
conversion. If the number of shares of Series B Convertible Preferred Stock
represented by the certificate or certificates surrendered pursuant to
subparagraph 6(a) exceeds the number of shares converted, the Corporation shall,
upon such conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate or certificates for the number of shares (or
fractions thereof) of Series B Convertible Preferred Stock represented by the
certificate or certificates surrendered which are not to be converted. If any
fractional share of Common Stock would, except for the provisions of the first
sentence of this subparagraph 6(c), be delivered upon such conversion, the
Corporation, in lieu of delivering such fractional share, shall pay to the
holder surrendering the Series B Convertible Preferred Stock for conversion an
amount in cash equal to the current market price of such fractional share as
determined in good faith by the Board of Directors of the Corporation.
(d) Subdivision or Combination of Common Stock. In case the Corporation
shall at any time subdivide (by any stock split, stock dividend or otherwise)
its outstanding shares of Common Stock into a greater number of shares, the
Conversion Price in effect immediately prior to such subdivision shall be
proportionately reduced, and, conversely, in
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case the outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Conversion Price in effect immediately prior to such
combination shall be proportionately increased.
(e) Reorganization, Recapitalization or Reclassification. If any
capital reorganization, recapitalization or reclassification of the capital
stock of the Corporation (other than a merger or consolidation of the
Corporation in which the Corporation is the surviving corporation and which does
not result in a reclassification or change of outstanding shares of Common Stock
or a merger or consolidation which is deemed to be a liquidation, dissolution or
winding up of the Corporation pursuant to paragraph 4) shall be effected in such
a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, as a
condition of such reorganization, recapitalization or reclassification, lawful
and adequate provisions shall be made whereby each holder of a share or shares
of Series B Convertible Preferred Stock shall thereupon have the right to
receive, upon the basis and upon the terms and conditions specified herein and
in lieu of the shares of Common Stock immediately theretofore receivable upon
the conversion of such share or shares of Series B Convertible Preferred Stock,
such shares of stock, securities or assets as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such Common Stock immediately theretofore
receivable upon such conversion had such reorganization or reclassification not
taken place, and in any such case appropriate provisions shall be made with
respect to the rights and interests of such holder to the end that the
provisions hereof (including without limitation provisions for adjustments of
the Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise of such conversion rights.
(f) Notice of Adjustment. Upon any adjustment of the Conversion Price,
then and in each such case the Corporation shall give written notice thereof, by
delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to each holder of shares of Series B Convertible
Preferred Stock at the address of such holder as shown on the books of the
Corporation, which notice shall state the Conversion Price resulting from such
adjustment, setting forth in reasonable detail the method upon which such
calculation is based.
(g) Other Notice. In case at any time:
(1) the Corporation shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the holders of
its Common Stock;
(2) the Corporation shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any class or
other rights;
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation, or a consolidation or
merger of the Corporation with or into another entity or entities, or a sale,
lease, abandonment, transfer or other disposition of all or substantially all
its assets; or
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(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by delivery
in person, certified or registered mail, return receipt requested, telecopier or
telex, addressed to each holder of any shares of Series B Convertible Preferred
Stock at the address of such holder as shown on the books of the Corporation,
(i) at least 10 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 10 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (ii) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
(h) Stock to be Reserved. The Corporation will at all times reserve and
keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon the conversion of Series B Convertible Preferred Stock
as herein provided, such number of shares of Common Stock as shall then be
issuable upon the conversion of all outstanding shares of Series B Convertible
Preferred Stock. The Corporation covenants that all shares of Common Stock which
shall be so issued shall be duly authorized, validly issued, fully paid and
nonassessable by the Corporation and free from all taxes, liens and charges with
respect to the issue thereof, and, without limiting the generality of the
foregoing, the Corporation covenants that it will from time to time take all
such action as may be requisite to assure that the par value per share of the
Common Stock is at all times equal to or less than the Conversion Price in
effect at the time. The Corporation will take all such action as may be
necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or regulation, or of any requirement of
any national securities exchange upon which the Common Stock may be listed. The
Corporation will not take any action which results in any adjustment of the
Conversion Price if the total number of shares of Common Stock issued and
issuable after such action upon conversion of the Series B Convertible Preferred
Stock would exceed the total number of shares of Common Stock then authorized by
the Corporation's Articles of Incorporation.
(i) No Reissuance of Series B Convertible Preferred Stock. Shares of
Series B Convertible Preferred Stock which are converted into shares of Common
Stock as provided herein shall not be reissued as shares of Series B Convertible
Preferred Stock.
(j) Issue Tax. The issuance of certificates for shares of Common Stock
upon conversion of Series B Convertible Preferred Stock shall be made without
charge to
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the holders thereof for any issuance tax in respect thereof, provided that the
Corporation shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in a
name other than that of the holder of the Series B Convertible Preferred Stock
which is being converted.
(k) Closing of Books. The Corporation will at no time close its
transfer books against the transfer of any Series B Convertible Preferred Stock
or of any shares of Common Stock issued or issuable upon the conversion of any
shares of Series B Convertible Preferred Stock in any manner which interferes
with the timely conversion of such Series B Convertible Preferred Stock, except
as may otherwise be required to comply with applicable securities laws.
(l) Definition of "Common Stock." As used in this paragraph 6, the term
"Common Stock" shall be deemed to mean (i) the Common Stock, par value $.01, and
(ii) the stock of the Corporation of any class, or series within a class,
whether now or hereafter authorized, which has the right to participate in the
distribution of either earnings or assets of the Corporation without limit as to
the amount or percentage.
(m) Minimum Adjustment. No reduction of the Conversion Price shall be
made if the amount of any such reduction would be an amount less than $.01, but
any such amount shall be carried forward and reduction with respect thereof
shall be made at the time of and together with any subsequent reduction which,
together with such amount and any other amount or amounts so carried forward,
shall aggregate $.01 or more.
7. Future Issuance of Shares; Preemptive Rights.
(a) Offering Notice. Except for (i) capital stock of the Corporation
which may be issued to employees, consultants or directors of the Corporation
pursuant to a stock incentive plan or other employee benefit arrangement
approved by the Board of Directors, (ii) a subdivision of the outstanding shares
of Common Stock into a larger number of shares of Common Stock, (iii) capital
stock issued as full or partial consideration for a merger, acquisition, joint
venture, strategic alliance, license agreement or other similar non-financing
transaction, (iv) capital stock issued in connection with a publicly registered
offering, or (v) capital stock issued upon exercise, conversion or exchange of
any Preferred Stock, options or warrants, if the Corporation wishes to issue any
shares of capital stock or any other securities convertible into or exchangeable
for capital stock of the Corporation (collectively, "New Securities") to any
Person (the "Subject Purchaser"), then the Corporation shall send written notice
(the "New Issuance Notice") to the holders of the Series B Preferred Stock,
which New Issuance Notice shall state (x) the number of New Securities proposed
to be issued and (y) the proposed purchase price per share of the New Securities
that the Corporation is willing to accept (the "Proposed Price").
(b) Preemptive Rights; Exercise.
(i) For a period of fifteen (15) days after the giving of the
New Issuance Notice as provided in Section 7(a), each holder of the Series B
Preferred Stock (each, a "Preemptive Rightholder") shall have the right to
purchase up to its Proportionate Percentage (as
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hereinafter defined) of the New Securities at a purchase price equal to the
Proposed Price and upon the terms and conditions set forth in the New Issuance
Notice. Each Preemptive Rightholder shall have the right to purchase up to that
percentage of the New Securities determined by dividing (a) a number equal to
the number of shares of Common Stock into which the shares of Series B
Convertible Preferred Stock then owned by such Preemptive Rightholder are
convertible by (b) the total of (i) the number of shares of Common Stock then
outstanding and (ii) the number of shares of Common Stock into which all
outstanding shares of Preferred Stock are convertible (the "Proportionate
Percentage").
(ii) The right of each Preemptive Rightholder to purchase the
New Securities under subsection (i) above shall be exercisable by delivering
written notice of its exercise, prior to the expiration of the 15-day period
referred to in subsection (i) above, to the Corporation, which notice shall
state the amount of New Securities that the Preemptive Rightholder elects to
purchase as provided in Section 7(b)(i). The failure of a Preemptive Rightholder
to respond within the 15-day period shall be deemed to be a waiver of the
Preemptive Rightholder's rights under Section 7(b)(i); provided that each
Preemptive Rightholder may waive its, his or her rights under Section 7(b)(i)
prior to the expiration of the 15-day period by giving written notice to the
Corporation.
(iii) If, following the expiration of the 15-day period
referred to above, not all of the New Securities have been subscribed for by the
Subject Purchasers, each Preemptive Rightholder shall have the option to reduce
that number of New Securities it has elected to purchase pursuant to Section
7(b)(i) by a proportionate amount.
(c) Closing. The closing of the purchase of New Securities subscribed
for by the Preemptive Rightholders under Section 7(b) shall be held at the same
time and place as the closing of the New Securities subscribed for by the
Subject Purchasers (the "Closing"). At the Closing, the Corporation shall
deliver certificates representing the New Securities, and the New Securities
shall be issued free and clear of all Liens and the Corporation shall so
represent and warrant, and further represent and warrant that the New Securities
shall be, upon issuance of the New Securities to the Preemptive Rightholders and
after payment for the New Securities, duly authorized, validly issued, fully
paid and nonassessable by the Corporation. At the Closing, the Preemptive
Rightholders purchasing the New Securities shall deliver payment in full in
immediately available funds for the New Securities purchased by it, him or her.
At the Closing, all of the parties to the transaction shall execute any
additional documents that are otherwise necessary or appropriate.
(d) Sale to Subject Purchaser. The Corporation may sell to the Subject
Purchaser all of the New Securities not purchased by the Preemptive Rightholders
as provided in Section 7(b) on terms and conditions that are no more favorable
to the Subject Purchaser than those set forth in the New Issuance Notice;
provided, however, that the sale is bona fide and made pursuant to a contract
entered into within four (4) months of the earlier to occur of (i) the waiver by
the Preemptive Rightholders of their option to purchase the New Securities as
provided in Section 7(b) and (ii) the expiration of the 15-day period referred
to in Section 7(b). If such sale is not consummated within such four (4) month
period for any reason, then the
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restrictions provided for in this Section 7 shall again become effective, and no
issuance and sale of New Securities may be made thereafter by the Corporation
without again offering the New Securities in accordance with this Section 7. The
closing of any issue and purchase contemplated by this Section 7(d) shall be
held at the time and place as the parties to the transaction may agree.
8. Voting Rights. Holders of Series B Convertible Preferred Stock shall
be entitled to notice of any stockholders' meeting. Except as otherwise required
by law, at any annual or special meeting of the Corporation's stockholders, or
in connection with any written consent in lieu of any such meeting, each
outstanding share of Series B Convertible Preferred Stock shall be entitled to
the number of votes equal to the number of full shares of Common Stock into
which such share of Series B Convertible Preferred Stock is then convertible
(calculated by rounding any fractional share down to the nearest whole number)
on the date for determination of stockholders entitled to vote at the meeting.
Except as otherwise required by law, the Series B Convertible Preferred Stock
and the Common Stock shall vote together as a single class on each matter
submitted to the stockholders, and not by separate class or series.
9. Optional Redemption.
(a) For the purposes of this Section 9 the "Target Market
Price" shall mean an amount equal to: (i) in the twelve-month period commencing
on March 15, 2001, 2.5 times the Conversion Price as last adjusted and then in
effect; (ii) in the twelve-month period commencing on March 15, 2002, 3.25 times
the Conversion Price as last adjusted and then in effect; and (iii)in the
twelve-month period commencing on March 15, 2003, 4 times the Conversion Price
as last adjusted and then in effect.
(b) If, at any time after March 15, 2001, for a period of not
less than thirty (30) consecutive trading days, the average closing price of the
Corporation's Common Stock on the principal securities exchange or market on
which such shares are then traded has been equal to or greater than the Target
Market Price, then the Corporation may, at the option of the Board of Directors
of the Corporation, redeem from any source of funds legally available therefor,
in whole or in part, in the manner provided herein, any or all whole number of
shares of Series B Convertible Preferred Stock at any time outstanding for a
cash amount per share to be redeemed equal to the Liquidation Payment as defined
in Section 4 (the "Redemption Price").
(c) Notwithstanding the foregoing, at any time and from time
to time after March 15, 2004, the Corporation may, at the option of the Board of
Directors of the Corporation, redeem from any source of funds legally available
therefor, in whole or in part, in the manner provided herein, any or all whole
number of shares of Series B Convertible Preferred Stock at any time outstanding
for an amount per share to be redeemed equal to the Redemption Price.
10. Redemption Procedure. At least forty-five (45) days prior to the
date fixed for redemption of the Series B Convertible Preferred Stock pursuant
to Section 8, written notice ("Redemption Notice") shall be mailed, postage
prepaid, to each holder of record of the Series B Convertible Preferred Stock at
its address last shown on the records of the Corporation. The Redemption Notice
shall state:
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(a) whether all or less than all of the outstanding shares of Series B
Convertible Preferred Stock are to be redeemed and the total number of shares of
Series B Convertible Preferred Stock being redeemed;
(b) the number of shares of Series B Convertible Preferred Stock held
by the holder that the Corporation intends to redeem;
(c) the date of the redemption and the Redemption Price; and
(d) that the holder is to surrender to the Corporation, in the manner
and at the place designated, his or her certificate or certificates representing
shares of Series B Convertible Preferred Stock to be redeemed.
Any failure to mail the notice provided for herein or any defect
therein or in the mailing thereof shall not affect the validity of the
proceedings for the redemption of any shares so to be redeemed.
On or before the date fixed for any redemption of shares, each holder
of shares of Series B Convertible Preferred Stock to be redeemed on such date,
unless the holder has exercised his right to convert the shares as provided in
Section 6, shall surrender the certificate or certificates representing such
shares of Series B Convertible Preferred Stock to the Corporation, in the manner
and at the place designated in the Redemption Notice, and thereupon the
Redemption Price for such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof, and
each surrendered certificate shall be cancelled and retired. In the event less
than all of the shares represented by such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
If the Redemption Notice is duly given, and if on or prior to the
Redemption Date the Redemption Price is either paid or made available for
payment, then notwithstanding that the certificates evidencing any of the shares
of Series B Convertible Preferred Stock so called for redemption have not been
surrendered, all rights with respect to such shares shall forthwith after the
Redemption Date cease and terminate, except only the right of the holders to
receive the Redemption Price without interest upon surrender of their
certificates therefor.
B. The recitals and resolutions contained herein have not been
modified, altered or amended and are presently in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
12th day of March 1999.
INTEGRA LIFESCIENCES CORPORATION
By: /s/Stuart M. Essig
-----------------------------
Stuart M. Essig, President
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