Exhibit 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of September 28, 2000, is by and
between ArthroCare Corporation, a Delaware corporation ("Purchaser"), and
Integra LifeSciences Holdings Corporation, a Delaware corporation (the "Company"
or "Integra").
RECITALS
A. The Company is authorized to issue 60,000,000 shares of Common Stock,
$.01 par value per share (the "Common Stock"), of which 16,510,024 are
outstanding.
B. Purchaser desires to purchase from the Company for a purchase price of
Five Million Dollars ($5,000,000), and the Company desires to issue and sell to
Purchaser at such price, Three Hundred Thirty-three Thousand Three Hundred
Thirty-Four (333,334) shares of such Common Stock (the "Shares"), subject to the
terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. As used herein, the terms below shall have the following
meanings:
"AFFILIATE" shall mean any Person who is an "affiliate" (as defined in Rule
12b-2 under the Exchange Act) of, and any Person controlling, controlled by, or
under common control with, Purchaser.
"AGREEMENT" means this Agreement as it may be amended, supplemented or
modified.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"BY-LAWS" means the amended and restated by-laws of Integra, as amended and
as in effect on the Closing Date.
"CERTIFICATE OF INCORPORATION" means the Amended and Restated Certificate
of Incorporation of Integra, as amended and as in effect on the Closing Date.
"CLOSING DATE" shall mean September 28, 2000, or such other date as may be
agreed in writing by the parties hereto.
"CONDITION OF INTEGRA" means the assets, business, properties, operations
or financial condition of Integra and the Subsidiaries, taken as a whole.
1
<PAGE>
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"ENVIRONMENTAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way to
any Environmental Law.
"ENVIRONMENTAL LAW" means any United States (or other applicable
jurisdiction's) Federal, state, local or municipal statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment or any chemical,
material or substance, exposure to which is prohibited, limited or regulated by
any governmental authority.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended (or
any successor statute), and the rules and regulations of the SEC promulgated
thereunder.
"GOVERNMENTAL AUTHORITY" means the government of any nation, state, city,
locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
pertaining to government, and any entity owned or controlled by any of the
foregoing.
"INCLUDING" means including, without limitation.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), preference, priority, right
or other security interest or preferential arrangement (excluding preferred
stock and equity-related preferences).
"ORDER" means any judgment, injunction, writ, award, decree or order of any
Governmental Authority.
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, Governmental Authority or other entity of any
kind, and shall include any successor (by merger or otherwise) of such entity.
"PUBLIC DOCUMENTS" means (i) all SEC Documents; and (ii) all of Integra's
press releases issued since December 31, 1999.
"REQUIREMENT OF LAW" means, as to any Person, any law, regulation, rule,
treaty, Order or other determination of a Governmental Authority or a stock
exchange, in each case binding upon such Person or its Property.
"SEC" means the Securities and Exchange Commission or any successor entity.
"SEC DOCUMENTS" means all registration statements, proxy statements,
reports and other documents required to be filed by Integra under the Securities
Act or the Exchange Act, and all amendments and supplements thereto, filed by
Integra with the SEC since December 31, 1999.
"SECURITIES ACT" means the Securities Act of 1933, as amended (or any
successor statute), and the rules and regulations of the SEC promulgated
thereunder.
"SUBSIDIARY" means a corporation or other entity of which 50% or more of
the voting power of the outstanding voting equity securities or 50% or more of
the outstanding economic equity interest is held, directly or indirectly, by
Integra.
1.2 OTHER DEFINED TERMS. The following terms shall have the meanings given
for such terms in the sections set forth below:
2
<PAGE>
TERM SECTION
Closing 3.1
Common Stock Recitals
Indemnified Party 11.1
Losses 11.1
Shares Recitals
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1 TRANSFER OF SHARES. Upon the terms and subject to the conditions
contained herein, the Company will issue, sell and deliver to Buyer, and
Purchaser will acquire on the Closing Date, the Shares.
2.2 CONSIDERATION FOR SHARES. Upon the terms and subject to the conditions
contained herein, as consideration for the purchase of the Shares, Purchaser
shall pay a purchase price of Five Million Dollars ($5,000,000), payable by wire
transfer of immediately available funds to an account specified by the Company.
ARTICLE III
CLOSING
3.1 CLOSING. The closing of the transactions contemplated herein (the
"Closing") shall be held at 11 a.m. local time on the Closing Date at the
offices of the Company unless the parties hereto otherwise agree.
3.2 CLOSING PAYMENT AND DOCUMENTS. To effect the issuance and sale referred
to in SECTION 2.1 and the delivery of the consideration described in SECTION
2.2, the Company and Purchaser shall, on the Closing Date, deliver the
following:
(a) The Company shall deliver to Purchaser certificate(s) evidencing the
Shares;
(b) Purchaser shall wire immediately available funds as provided in SECTION
2.2;
(c) Purchaser shall deliver to the Company the documents shown in the
Closing Agenda attached to this Agreement as EXHIBIT 3.2 (the "Closing Agenda")
as being delivered by it, and such other instruments and documents as may be
reasonably requested by the Company, all in form reasonably satisfactory to the
Company's counsel; and
(d) The Company shall deliver to Purchaser the documents shown in the
Closing Agenda as being delivered by it, and such other instruments and
documents as may be reasonably requested by Purchaser, all in form reasonably
satisfactory to Purchaser's counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser as follows:
4.1 CORPORATE EXISTENCE AND POWER. Integra (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has all requisite corporate power and
3
<PAGE>
authority to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged as described
in the SEC Documents; (c) is duly qualified as a foreign corporation, licensed
and in good standing under the laws of each jurisdiction in which its ownership,
lease or operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to do so or be so would not
have a material adverse effect on the Condition of Integra.
4.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by Integra of this Agreement, including the sale, issuance and
delivery of the Shares (a) are within Integra's corporate power and have been
duly authorized by all necessary corporate action of Integra; (b) do not
contravene the terms of the Certificate of Incorporation or By-laws; (c) do not
violate, conflict with or result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation of Integra, material
Requirement of Law applicable to Integra or Order applicable to Integra, except
for those Contractual Obligations, Requirements of Law or Orders the violation
of which would not have a material adverse effect on the Condition of Integra.
4.3 GOVERNMENTAL AND OTHER THIRD PARTY CONSENTS. No approval, consent,
authorization, or other action by, notice to, or filing with, any Governmental
Authority or any other Person, including any approval or authorization of
Integra's stockholders, is required for the execution, delivery or performance
(including the sale, issuance and delivery of the Shares) by, or enforcement
against, Integra of this Agreement; except for filings pursuant to Section
25102(f) of the California Corporate Securities Law of 1968, as amended, and the
rules thereunder.
4.4 BINDING EFFECT. This Agreement has been duly executed and delivered by
Integra and constitutes a legal, valid and binding obligation of Integra,
enforceable against Integra in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 CAPITALIZATION.
(a) The authorized capital stock of Integra at the close of business on
September 18, 2000 consisted of (x) 60,000,000 shares of Common Stock, of which
16,510,024 shares are issued and outstanding and (y) 15,000,000 shares of
preferred stock, par value $.01 per share, of which (i) 2,000,000 shares have
been designated as Series A Preferred Stock (of which 500,000 shares are issued
and outstanding), (ii) 120,000 shares have been designated as Series B preferred
Stock (of which 100,000 shares are issued and outstanding), and (iii) 54,000
shares have been designated as Series C Preferred Stock (of which 54,000 shares
are issued and outstanding). Except as set forth in EXHIBIT 4.5 there are no
options, warrants, conversion privileges or other rights presently outstanding
to purchase or otherwise acquire any authorized but unissued or unauthorized
shares or treasury shares of Integra's capital stock.
(b) There has been no change in the authorized, issued and outstanding
capital stock of Integra in the interval between September 18, 2000 and the
Closing Date, except for shares of Common Stock issued upon the exercise of
warrants or options.
(c) The Shares are duly authorized and, when issued and sold to Purchaser
after payment therefor, will be validly issued, fully paid and nonassessable and
free of restrictions on transfer other than restrictions on transfer under
applicable state and federal securities laws.
(d) Based in part on the representations of Purchaser in this Agreement,
the Shares will be issued in compliance with, or pursuant to an exemption from,
the registration requirements of all applicable federal and state securities
laws.
4.6 SEC DOCUMENTS.
(a) Integra has filed all SEC Documents required to be filed by it since
December 31, 1999 under the Securities Act or the Exchange Act.
4
<PAGE>
(b) As of its filing date, each SEC Document referred to in subsection (a)
above (i) complied in all material respects with the applicable requirements of
the Exchange Act and (ii) did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
4.7 ABSENCE OF CERTAIN CHANGES. Except as set forth in the Public Documents
and except for the transaction expressly contemplated hereby, since December 31,
1999:
(a) there has been no material adverse change in the Condition of Integra,
whether or not arising in the ordinary course of business (other than operating
losses consistent with the historical results of Integra);
(b) there have been no transactions entered into by the Company other than
those in the ordinary course of business, which are material with respect to the
Condition of Integra; and
(c) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
4.8 NO GENERAL SOLICITATION. No form of general solicitation or general
advertising was used by Integra or its representatives in connection with the
offer or sale of the Shares.
4.9 BROKER'S, FINDER'S OR SIMILAR FEES. There are no brokerage commissions,
finder's fees or similar fees or commissions payable by Integra in connection
with the transactions contemplated hereby or based on any agreement, arrangement
or understanding with Integra or any action taken by Integra.
4.10 NO ACTIONS. There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the Company
which, singly or in the aggregate, (a) except as set forth in the Public
Documents, would result in any material adverse change in the Condition of
Integra, or which (b) seeks to challenge the consummation of this Agreement,
nor, to the best knowledge of the Company, is there any reasonable basis
therefor. The Company is not in default with respect to any judgment, order or
decree of any court or governmental agency or instrumentality, which, singly or
in the aggregate, would have a material adverse effect on the Condition of
Integra.
4.11 ENVIRONMENTAL. Except as set forth in the Public Documents, and except
to the extent that, individually or in the aggregate, failure to satisfy the
following representations has not had, and would not reasonably be expected to
have, a material adverse effect on the Condition of Integra, (i) the Company is
in compliance with all applicable Environmental Laws; (ii) the Company has all
permits, authorizations and approvals required under any applicable
Environmental Laws and is in compliance with the requirements of such permits,
authorizations and approvals; and (iii) there are no pending or, to the
knowledge of the Company, threatened Environmental Claims against the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Integra as follows:
5.1 CORPORATE EXISTENCE AND POWER. Purchaser (a) is a corporation duly
incorporated and validly existing under the laws of the jurisdiction of its
incorporation, and (b) has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
5.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by Purchaser of this Agreement, including the purchase of the
Shares: (a) have been duly authorized by all necessary corporate action; (b) do
not contravene the terms of Purchaser's organizational documents; and (c) do not
5
<PAGE>
violate, conflict with or result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation of Purchaser, Requirement
of Law applicable to Purchaser, or Order applicable to Purchaser, except for
those Contractual Obligations, Requirements of Law or Orders the violation of
which would not have a material adverse effect on Purchaser's ability to perform
its obligations under this Agreement.
5.3 GOVERNMENTAL AND OTHER THIRD PARTY CONSENTS. No approval, consent,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is required for the execution,
delivery or performance (including the purchase of the Shares) by, or
enforcement against, Purchaser of this Agreement; except for filings pursuant to
Section 25102(f) of the California Corporate Securities Law of 1968, as amended,
and the rules thereunder.
5.4 BINDING EFFECT. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (regardless of whether considered in a
proceeding at law or in equity).
5.5 PURCHASE FOR OWN ACCOUNT, ETC. The Shares to be acquired by Purchaser
pursuant to this Agreement are being acquired for its own account and with no
intention of distributing or reselling such Shares or any part thereof in any
transaction that would be in violation of federal or state securities laws.
Purchaser agrees to the imprinting, so long as required by law, of a legend on
certificates representing the Shares substantially to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT."
5.6 ACCREDITATION; SOPHISTICATION; OTHER SECURITIES LAWS MATTERS. Purchaser
(a) is an "accredited investor" within the meaning of Rule 501 under the
Securities Act; (b) has sufficient knowledge and experience in investing in
companies similar to Integra so as to be able to evaluate the risks and merits
of its investment in Integra and is able financially to bear the risks thereof;
(c) has had an opportunity to discuss Integra's business, management and
financial affairs with Integra's management; and (d) is a resident of the State
of California for purposes of state "blue sky" securities laws.
5.7 BROKER'S, FINDER'S OR SIMILAR FEES. There are no brokerage commissions,
finder's fees or similar fees or commissions payable by Purchaser in connection
with the transactions contemplated hereby or based on any agreement, arrangement
or understanding with Purchaser or any action taken by Purchaser.
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of Purchaser to purchase the Shares and to pay the purchase
price therefor at the Closing shall be subject to the satisfaction as determined
by, or waiver by, Purchaser of the following conditions on or before the Closing
Date:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Integra contained in ARTICLE IV hereof shall be (a) true and correct as of the
date of signing of this Agreement and (b) true and correct in all material
respects (without duplication of any materiality qualifier contained therein) at
the Closing Date as if made on such date.
6.2 COMPLIANCE WITH THIS AGREEMENT. Integra shall have performed and
complied in all material respects with all of its agreements and covenants set
forth herein that are required to be performed or complied with by Integra on or
before the Closing Date.
6
<PAGE>
6.3 NO MATERIAL LITIGATION. No action, suit, proceeding, claim or dispute
shall have been brought or otherwise arisen at law, in equity, in arbitration or
before any Governmental Authority against Integra or any of its Subsidiaries
which could reasonably be expected to have a material adverse effect on the
ability of Integra to perform its obligations under this Agreement.
6.4 NO MATERIAL ORDER. There shall not be on the Closing Date any Order
which would, in the judgment of Purchaser, (a) prohibit or restrict the purchase
of the Shares, or (b) subject Purchaser to any material penalty or other
materially onerous condition if the Shares were to be purchased hereunder.
6.5 NO MATERIAL ADVERSE CHANGE. Since the date hereof, there shall have
been no material adverse change in the Condition of Integra (other than
operating losses consistent with the historic results of Integra).
6.6 COMPLIANCE CERTIFICATE. The Company shall have delivered to Purchaser a
certificate executed by the President, and the chief financial or accounting
officer of the Company, dated as of the Closing Date, in a form reasonably
satisfactory to Purchaser, to the effect that the conditions specified in
SECTIONS 6.1, 6.2, 6.3, 6.4 and 6.5 have been fulfilled.
6.7 SECRETARY'S CERTIFICATE. The Company shall have delivered to Purchaser
a certificate executed by the Secretary of the Company, dated as of the Closing
Date, in a form reasonably satisfactory to Purchaser and having attached thereto
(i) the Certificate of Incorporation, (ii) the Bylaws, (iii) resolutions
approved by the Board of Directors of the Company authorizing the transactions
contemplated hereby, and (iv) good standing certificates (including tax good
standing) with respect to the Company from the applicable authorities in
Delaware, dated a recent date before the Closing Date.
6.8 LEGAL OPINION. Purchaser shall have received from John B. Henneman,
III, Chief Administrative Officer of the Company (responsible for the legal
affairs of the Company), an opinion dated as of the Closing, in form and
substance reasonably satisfactory to Purchaser, regarding the issues set forth
in Exhibit 6.8 (subject to customary exceptions and qualifications).
ARTICLE VII
CONDITIONS TO INTEGRA'S OBLIGATION TO CLOSE
The obligation of Integra to issue and sell the Shares at the Closing shall
be subject to the satisfaction as determined by, or waiver by, Integra of the
following conditions on or before the Closing Date:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Purchaser contained in ARTICLE V hereof shall be (a) true and correct as of the
date of signing of this Agreement and (b) true and correct in all material
respects (without duplication of any materiality qualifier contained therein) at
the Closing Date as if made on such date.
7.2 COMPLIANCE WITH THIS AGREEMENT. Purchaser shall have performed and
complied in all material respects with all of its agreements and covenants set
forth herein that are required to be performed or complied with by Purchaser on
or before the Closing Date.
7.3 NO MATERIAL ORDER. There shall not be on the Closing Date any Order
which would, in the judgment of Integra, (a) prohibit or restrict the sale of
the Shares, or (b) subject Integra to any penalty or other materially onerous
condition if the Shares were to be sold hereunder.
7.4 COMPLIANCE CERTIFICATE. Purchaser shall have delivered to the Company a
certificate executed by the President of Purchaser, dated as of the Closing
Date, in a form reasonably satisfactory to the Company, to the effect that the
conditions specified in SECTIONS 7.1, 7.2, and 7.3 have been fulfilled.
7
<PAGE>
ARTICLE VIII
PRE-CLOSING COVENANTS OF INTEGRA
8.1 PRESERVATION OF EXISTENCE. From the date hereof until the Closing Date,
Integra shall, and shall use all commercially reasonable efforts to cause each
of its Subsidiaries to:
(a) preserve and maintain its existence and good standing under the laws of
its jurisdiction of formation or organization;
(b) take all commercially reasonable action to preserve and maintain all
material rights, privileges, qualifications, applications, estimates, licenses
and franchises necessary in the normal conduct of its business; and
(c) conduct its business in accordance with sound business practices and
keep its useful and necessary properties in good working order and condition
(normal wear and tear excepted).
ARTICLE IX
POST-CLOSING COVENANTS OF INTEGRA
9.1 REPORTS UNDER EXCHANGE ACT. With a view to making available to
Purchaser the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the SEC that may at any time permit Purchaser to
sell securities of the Company to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(c) furnish to Purchaser, so long as Purchaser owns any Shares, forthwith
upon request (i) a written statement by the Company that it has complied with
the reporting requirements of SEC Rule 144, the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing Purchaser of any
rule or regulation of the SEC which permits the selling of the Shares without
registration.
ARTICLE X
TERMINATION OF AGREEMENT
10.1 TERMINATION. This Agreement may be terminated prior to the Closing as
follows:
(a) at any time on or prior to the Closing Date, by mutual written consent
of Integra and Purchaser;
(b) at the election of Integra or Purchaser by notice to the other party
hereto after 5:00 p.m., New York City time on October 31, 2000, if the
transactions contemplated by this Agreement shall not have been consummated,
unless such date is extended by the mutual written consent of Integra and
Purchaser;
(c) at the election of the Integra, by notice to Purchaser, if any one or
more of the conditions to its obligation to close set forth in ARTICLE VII has
not been satisfied or waived and the Closing shall not have occurred on the
scheduled Closing Date;
8
<PAGE>
(d) at the election of Purchaser, by notice to Integra, if any one or more
of the conditions to its obligation to close set forth in ARTICLE VI has not
been satisfied or waived and the Closing shall not have occurred on the
scheduled Closing Date;
(e) at the election of Integra, by notice to Purchaser, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of Purchaser contained in this Agreement, which breach has not been cured
within ten (10) Business Days after notice to Purchaser of such breach; or
(f) at the election of Purchaser, by notice to Integra, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of Integra contained in this Agreement, which breach has not been cured
within ten (10) Business Days after notice to Integra of such breach.
If this Agreement so terminates, it shall become null and void and have no
further force or effect, except as provided in SECTION 10.2.
10.2 SURVIVAL. If this Agreement is terminated and the transactions
contemplated hereby are not consummated as described above, this Agreement shall
become void and of no further force and effect; PROVIDED, HOWEVER, that (i) no
party hereto shall have any liability in respect of a termination of this
Agreement pursuant to SECTION 10.1(A) or SECTION 10.1(B) and (ii) nothing shall
relieve any party from any liability for actual damages resulting from a
termination of this Agreement pursuant to SECTION 10.1(E) or 10.1(F); AND
PROVIDED FURTHER, that none of the parties hereto shall have any liability for
speculative, indirect, unforeseeable or consequential damages resulting from a
terminate of this Agreement pursuant to this ARTICLE X.
ARTICLE XI
INDEMNIFICATION
11.1 INDEMNIFICATION. Except as otherwise provided in this ARTICLE XI,
Integra agrees to indemnify, defend and hold harmless Purchaser and its
Affiliates and their respective officers, directors, agents, employees,
subsidiaries, members, partners and controlling persons (each, an "Indemnified
Party") from and against any and all Losses (as hereinafter defined) resulting
from, arising out of or relating to any breach of any representation, warranty,
covenant or agreement by Integra in this Agreement, including Losses arising out
of any legal, administrative or other actions (including actions brought by
Purchaser or Integra or any equityholders of Integra or derivative actions
brought by any Person claiming through or in Integra's name), proceedings or
investigations (whether formal or informal), or written threats thereof, arising
out of this Agreement or the transactions contemplated hereby; PROVIDED,
HOWEVER, that Integra shall not be liable under this SECTION 11.1 to an
Indemnified Party to the extent that such Losses resulted from the breach by
Purchaser of any representation, warranty, covenant or other agreement of
Purchaser contained in this Agreement; and PROVIDED, FURTHER that if and to the
extent that such indemnification is unenforceable for any reason, then Integra
shall make the maximum contribution to the payment and satisfaction of such
Losses which shall be permissible under applicable laws. "Losses" means only (a)
direct out-of-pocket payments of judgments and settlements, costs and expenses
of the Indemnified Parties and (b) diminution in value of the Shares directly
attributable to a breach of any representation, warranty, covenant or agreement
by Integra in this Agreement.
11.2 NOTIFICATION. Each Indemnified Party under this ARTICLE XI will,
promptly after the receipt of notice of the commencement of any action,
investigation, claim or other proceeding against such Indemnified Party in
respect of which indemnity may be sought from Integra under the this ARTICLE XI,
notify Integra in writing of the commencement thereof. The omission of any
Indemnified Party to so notify Integra of any such action shall not relieve
Integra from any liability which Integra may have to such Indemnified Party (a)
other than pursuant to this ARTICLE XI or (b) under this ARTICLE XI unless, and
only to the extent that, such omission results in Integra's forfeiture of
substantive rights or defenses. In case any such action, claim or other
proceeding shall be brought against any Indemnified Party and it shall notify
Integra of the commencement thereof, Integra shall be entitled to assume the
defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; PROVIDED, HOWEVER, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense at its own expense. Notwithstanding the foregoing,
in any action, claim or proceeding in which both Integra, on the one hand, and
an Indemnified Party, on the other hand, are, or are reasonably likely to
9
<PAGE>
become, a party, such Indemnified Party shall have the right to employ separate
counsel at the expense of Integra and to control its own defense of such action,
claim or proceeding if, in the reasonable opinion of counsel to such Indemnified
Party, a conflict or potential conflict exists between Integra, on the one hand,
and such Indemnified Party, on the other hand, that would make such separate
representation advisable; PROVIDED, HOWEVER, that Integra shall not be liable
for the fees and expenses of more than one counsel to all Indemnified Parties.
Integra agrees that it will not, without the prior written consent of Purchaser,
settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated
hereby (if any Indemnified Party is a party thereto or has been actually
threatened to be made a party thereto) unless such settlement, compromise or
consent includes an unconditional release of Purchaser and each other
Indemnified Party from all liability arising or that may arise out of such
claim, action or proceeding and imposes no obligations upon such Indemnified
Party. Integra shall not be liable for any settlement of any claim, action or
proceeding effected against an Indemnified Party without its written consent,
which consent shall not be unreasonably withheld.
11.3 INDEMNIFICATION SOLE REMEDY AT LAW. The rights accorded to each
Indemnified Party hereunder shall be the sole rights that such Indemnified Party
may have at common law, by separate agreement or otherwise; PROVIDED, HOWEVER,
that notwithstanding the foregoing or anything to the contrary contained in this
Agreement, nothing in this ARTICLE XI shall restrict or limit any rights that
any Indemnified Party may have to seek equitable relief.
ARTICLE XII
MISCELLANEOUS
12.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except for the
representations and warranties in SECTION 4.5(c) (which shall survive without
limitation), all of the representations and warranties made herein shall survive
the execution and delivery of this Agreement for a period ending 30 days after
the filing with the SEC of Integra's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000.
12.2 NOTICES. All notices provided for hereunder shall be made in writing
and shall be by registered or certified first-class mail, return receipt
requested, telecopier, courier service, overnight mail or personal delivery:
(i) if to Purchaser:
ArthroCare Corporation
595 North Pastoria Avenue
Sunnyvale, California 94086
Attn: John Raffle
and a copy to:
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
Attn: Michael W. Hall
(ii) if to Integra:
Integra LifeSciences Holdings Corporation
105 Morgan Lane
Plainsboro, NJ 08536
Facsimile: (609) 275-1082
Attention: Stuart M. Essig
and General Counsel
with a copy to:
GoodSmith, Gregg & Unruh
300 S. Wacker Drive, Suite 3100
Chicago, IL 60606
Facsimile: (312) 322-0056
Attention: Marilee C. Unruh
10
<PAGE>
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier or
overnight mail, if delivered by commercial courier service or overnight mail,
five (5) Business Days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is mechanically acknowledged, if telecopied.
12.3 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of the parties hereto.
Subject to applicable securities laws, Purchaser may assign any of its rights
under this Agreement to any of its Affiliates. Integra may not assign any of its
rights under this Agreement except to a successor-in-interest to Integra. No
Person other than the parties hereto and their successors and permitted assigns
is intended to be a beneficiary of this Agreement.
12.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of Integra or Purchaser in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, not
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy.
(b) Any amendment, supplement or modification to or of any provision of
this Agreement and any waiver of any provision of this Agreement shall be
effective (i) only if it is made in writing and signed by Integra and Purchaser,
and (ii) only in the specific instance and for the specific purpose for which
made.
12.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be in original and all of which taken
together shall constitute one and the same agreement.
12.6 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
12.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
12.8 SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired.
12.9 ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no representations, promises,
warranties or undertakings, other than those set forth herein.
12.10 EXPENSES. Each of Integra and Purchaser shall bear and pay their own
fees and expenses in connection with the negotiation and execution of this
Agreement.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
By: /s/ Stuart M. Essig
------------------------------------
Stuart M. Essig
President & Chief Executive Officer
ARTHROCARE CORPORATION
By: /s/ Michael A. Baker
------------------------------------
Michael A. Baker
President & Chief Executive Officer
