EX-4.5



 





			
	BANC OF AMERICA SECURITIES LLC
	 	J.P. MORGAN SECURITIES INC.






MORGAN STANLEY & CO.,
INCORPORATED




$165,000,000 AGGREGATE PRINCIPAL AMOUNT




INTEGRA LIFESCIENCES HOLDINGS CORPORATION




2.75% SENIOR CONVERTIBLE NOTES




DUE 2010




Registration Rights Agreement




dated June 11, 2007




 









 





     RESALE REGISTRATION RIGHTS AGREEMENT, dated as of June 11, 2007, among Integra LifeSciences
Holdings Corporation, a Delaware corporation (together with any successor entity, herein referred
to as the “Company”), Banc of America Securities LLC, J.P. Morgan Securities Inc. and Morgan
Stanley & Co., Incorporated, as representatives (the “Representatives”) of the several initial
purchasers (the “Initial Purchasers”) under the Purchase Agreement (as defined below).



     Pursuant to the Purchase Agreement, dated as of June 6, 2007, among the Company, Integra
LifeSciences Corporation (the “Subsidiary Guarantor”) and the Representatives (the “Purchase
Agreement”), relating to the initial placement (the “Initial Placement”) of the Notes (as defined
below), the Initial Purchasers have agreed to purchase from the Company $165,000,000 in aggregate
principal amount of 2.75% Senior Convertible Notes due 2010 (the “Notes”) to be jointly and
severally guaranteed on an unsecured senior basis by the Subsidiary Guarantor. The Notes will be
convertible, subject to the terms thereof, into cash and fully paid, nonassessable shares of common
stock, par value $0.01 per share, if any, of the Company (the “Common Stock”), unless the Company
elects to satisfy its entire conversion obligation in shares of Common Stock. The Notes will be
convertible on the terms, and subject to the conditions, set forth in the Indenture (as defined
herein). To induce the Initial Purchasers to purchase the Notes, the Company has agreed to provide
the registration rights set forth in this Agreement pursuant to Section 5(g) of the Purchase
Agreement.



     The parties hereby agree as follows:



     1. Definitions. Capitalized terms used in this Agreement without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized terms shall have the following meanings:



     “Additional Amounts”: As defined in Section 3(a) hereof.



     “Additional Amounts Payment Date”: Each June 1 and December 1.



     “Affiliate” of any specified person means any other person which, directly or indirectly, is
in control of, is controlled by, or is under common control with, such specified person. For
purposes of this definition, control of a person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such person whether by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the foregoing.



     “Agreement”: This Registration Rights Agreement.



     “Amendment Effectiveness Deadline Date”: has the meaning set forth in Section 2(f)(i) hereof.



     “Automatic Shelf Registration Statement”: An “automatic shelf registration” statement within
the meaning of Rule 405 under the Securities Act.



     “Business Day”: The definition of “Business Day” in the Indenture.



     “Closing Date”: The date of the first issuance of the Notes.



 









 





     “Commission”: Securities and Exchange Commission.



     “Common Stock”: As defined in the preamble hereto.



     “Company”: As defined in the preamble hereto.



     “Effectiveness Date”: As defined in Section 2(a)(ii) hereof.



     “Effectiveness Period”: As defined in Section 2(a)(iii) hereof.



     “Effectiveness Target Date”: As defined in Section 2(a)(ii) hereof.



     “Exchange Act”: Securities Exchange Act of 1934, as amended.



     “Free Writing Prospectus”: A free writing prospectus, as defined in Rule 405 under the
Securities Act.



     “Holder”: A Person who owns, beneficially or otherwise, Transfer Restricted Securities.



     “Indemnified Holder”: As defined in Section 6(a) hereof.



     “Indenture”: The Indenture, dated as of June 11, 2007 among the Company, the Subsidiary
Guarantor and Wells Fargo Bank , N.A., as trustee (the “Trustee”), pursuant to which the Notes are
to be issued, as such Indenture is amended, modified or supplemented from time to time in
accordance with the terms thereof.



     “Initial Placement”: As defined in the preamble hereto.



     “Initial Purchasers”: As defined in the preamble hereto.



     “Issuer Free Writing Prospectus”: An issuer free writing prospectus, as defined in Rule 433
under the Securities Act.



     “Losses”: As defined in Section 6(a) hereof.



     “Majority of Holders”: Holders holding over 50% of the aggregate principal amount of Notes
outstanding; provided that, for the purpose of this Agreement, a holder of shares of Common Stock
which constitute Transfer Restricted Securities shall be deemed to hold an aggregate principal
amount of the Notes (in addition to the principal amount of the Notes held by such holder) equal to
the quotient of (x) the number of such shares of Common Stock held by such holder and (y) the
conversion rate in effect at the time of their issuance upon conversion of the Notes as determined
in accordance with the Indenture.



     “Managing Underwriter”: The investment banker or investment bankers and manager or managers
that administer an underwritten offering, if any, conducted pursuant to Section 8 hereof.



     “NASD”: National Association of Securities Dealers, Inc.



     “Notes”: As defined in the preamble hereto.



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     “Notice and Questionnaire” means a written notice executed by a Holder and delivered to the
Company containing substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum of the Company relating to the
Notes.



     “Notice Holder”: On any date, any Holder of Transfer Restricted Securities that has delivered
a Notice and Questionnaire to the Company on or prior to such date.



     “Permitted Free Writing Prospectus”: As defined in Section 9(a) hereof.



     “Person”: An individual, partnership, corporation, company, unincorporated organization,
trust, joint venture or a government or agency or political subdivision thereof.



     “Purchase Agreement”: As defined in the preamble hereto.



     “Prospectus”: The prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such prospectus.



     “Record Holder”: With respect to any Additional Amounts Payment Date, each Person who is a
registered holder of the Notes on the 15th day preceding the relevant Additional Amounts
Payment Date.



     “Registration Default”: As defined in Section 3(a) hereof.



     “Representatives”: As defined in the preamble hereto.



     “Securities Act”: Securities Act of 1933, as amended.



     “Shelf Filing Deadline”: As defined in Section 2(a)(i) hereof.



     “Shelf Registration Statement”: As defined in Section 2(a)(i) hereof.



     “Subsequent Shelf Registration Statement”: As defined in Section 2(c) hereof.



     “Subsidiary Guarantor”: As defined in the preamble hereto.



     “Suspension Notice”: As defined in Section 4(c) hereof.



     “Suspension Period”: As defined in Section 4(b)(ii) hereof.



     “TIA”: Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder, in each case, as in effect on the date the Indenture is qualified under the
TIA.



     “Transfer Restricted Securities”: Each share of Common Stock issued upon conversion of Notes
until the earliest of:




     (i) the date on which such share of Common Stock issued upon conversion has
been effectively registered under the Securities Act and



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disposed of in accordance with the Shelf Registration Statement or a
Subsequent Shelf Registration Statement;




     (ii) the date on which such share of Common Stock issued upon conversion is
transferred in compliance with Rule 144 (or any other similar provision then in
force) under the Securities Act or transferable pursuant to paragraph (k) of Rule
144 under the Securities Act (or any other similar provision then in force);




     (iii) the date on which such share of Common Stock issued upon conversion
ceases to be outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise); or




     (iv) the date on which such share of Common Stock has otherwise been
transferred and a new share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company.



     “Underwriter”: Any underwriter of Transfer Restricted Securities in connection with an
offering thereof under the Shelf Registration Statement.



     “WKSI”: A “well known seasoned issuer” as defined in Rule 405 under the Securities Act.



     “Underwritten Registration”: A registration in which Transfer Restricted Securities of the
Company are sold to an underwriter for reoffering to the public.



     Unless the context otherwise requires, the singular includes the plural, and words in the
plural include the singular.



     2. Shelf Registration.




     (a) The Company shall:




     (i) no later than 150 days after the Closing Date) (the “Shelf Filing
Deadline”), cause to be filed a registration statement pursuant to Rule 415 under
the Securities Act or any similar rule that may be adopted by the Commission (the
“Shelf Registration Statement”), which Shelf Registration Statement shall be an
Automatic Shelf Registration Statement if the Company is then a WKSI and shall
provide for the registration and resales, on a continuous or delayed basis, of
all Transfer Restricted Securities subject to the terms and conditions hereof;




     (ii) if the Company is not a WKSI when the shelf registration statement is
filed and therefore did not file an Automatic Shelf Registration Statement, to
use its commercially reasonable efforts to cause the Shelf Registration Statement
to become effective under the Securities Act not later than 180 days after the
Closing Date (the “Effectiveness Target Date,” and the date of such effectiveness
or availability, the “Effectiveness Date”); and



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     (iii) use its reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the Securities
Act and by the provisions of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Holders of Transfer Restricted
Securities entitled, subject to the terms and conditions hereof, to the benefit
of this Agreement and (B) conforms with the requirements of this Agreement and
the Securities Act and the rules and regulations of the Commission promulgated
thereunder as announced from time to time, for a period (the “Effectiveness
Period”) equal to the earlier of (1) the 90th calendar day immediately following
the maturity date of the Notes, which period shall be extended by the length of
time of any applicable Suspension Period occurring after such maturity date and
(2) the date on which there are no longer any Notes or Transfer Restricted
Securities remaining outstanding or unsold.




     (b) The Company shall mail the Notice and Questionnaire to the Holders a reasonable
number of days prior to the Effectiveness Target Date so that such Holders may return the
completed Notice and Questionnaire to the Company within the time period specified in the
following sentence. Each Holder that becomes a Notice Holder (and provides such
additional information as the Company reasonably may request) on or prior to the date 10
Business Days prior to the Effectiveness Target Date shall be named as a selling
securityholder in the initial Registration Statement made available to Holders under the
Shelf Registration Statement.




     (c) If the Shelf Registration Statement or any Subsequent Shelf Registration
Statement ceases to be effective for any reason at any time during the Effectiveness
Period (other than because all Transfer Restricted Securities registered thereunder shall
have been resold pursuant thereto or shall have otherwise ceased to be Transfer Restricted
Securities), the Company shall use its reasonable efforts to obtain the prompt withdrawal
of any order suspending the effectiveness thereof or file an additional Shelf Registration
Statement (which shall be an Automatic Shelf Registration Statement if the Company is then
a WKSI) covering all of the securities that as of the date of such filing are Transfer
Restricted Securities (a “Subsequent Shelf Registration Statement”). If a Subsequent
Shelf Registration Statement is filed and is not an Automatic Shelf Registration
Statement, the Company shall use its commercially reasonable efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as is practicable
after such filing or designation and to keep such Subsequent Shelf Registration Statement
continuously effective until the end of the Effectiveness Period.




     (d) The Company shall supplement and amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, if required by the Securities
Act.




     (e) The Company shall cause the Shelf Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, and any Issuer Free Writing
Prospectus, as of the date thereof, (i) to comply in all



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material respects with the applicable requirements of the Securities Act and (ii) not
to contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein (in the
case of the Prospectus and any Issuer Free Writing Prospectus, in light of the
circumstances under which they were made) not misleading.




     (f) Each Holder agrees that if such Holder wishes to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related Prospectus, it will do
so only in accordance with the terms and conditions of this Agreement. Each Holder
wishing to sell Transfer Restricted Securities pursuant to a Shelf Registration Statement
and related Prospectus from and after the Effectiveness Date agrees to deliver a Notice
and Questionnaire to the Company at least 10 Business Days prior to any intended
distribution of Transfer Restricted Securities under the Shelf Registration Statement.
From and after the Effectiveness Date, the Company shall upon the later of (x) 10 Business
Days after such date (but no earlier than 10 Business Days after effectiveness) or (y) 10
Business Days after the expiration of any Suspension Period in effect when the Notice and
Questionnaire is delivered or put into effect within 10 Business Days of such delivery
date:




     (i) if required by applicable law, file with the Commission a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Transfer Restricted Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement and if such Shelf Registration Statement is not an
Automatic Shelf Registration Statement, use its reasonable efforts to cause such
post-effective amendment to become effective under the Securities Act as promptly
as is practicable, but in any event by the date (the “Amendment Effectiveness
Deadline Date”) that is 45 days after the date such post-effective amendment is
required by this clause to be filed;




     (ii) upon its request provide such Holder copies of the any documents filed
pursuant to Section 2(f)(i); and




     (iii) notify such Holder as promptly as practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to
Section 2(f)(i);


provided that if such Notice and Questionnaire is delivered during a Suspension Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above upon expiration of the Suspension Period in accordance
with Section 4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall not be under any obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration


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Statement or related Prospectus, (ii) the Amendment Effectiveness Deadline Date shall be extended
by up to 10 Business Days from the Expiration of a Suspension Period (and the Company shall not
incur any obligation to pay Additional Amounts during such extension) if such Suspension Period
shall be in effect on the Amendment Effectiveness Deadline Date and (iii) the Company shall not be
under any obligation to file more than one post-effective amendment to the Shelf Registration
Statement or supplement the related Prospectus in any 90-day period.




     3. Additional Amounts.




     (a) If:




     (i) the Shelf Registration Statement (which shall be an automatic shelf
registration statement if the Company is eligible to use an automatic shelf
registration at the time of filing) is not filed, or on file, with the Commission
prior to or on the Shelf Filing Deadline;




     (ii) the Company is not eligible to use an automatic shelf registration
statement on the Shelf Filing Deadline, and the Shelf Registration Statement has
not become effective, prior to or on the Effectiveness Target Date;




     (iii) any post-effective amendment to a Shelf Registration Statement filed
pursuant to Section 2(f)(i) has not become effective under the Securities Act on
or prior to the Amendment Effectiveness Deadline Date;




     (iv) except as provided in Section 4(b)(ii) hereof, the Shelf Registration
Statement is filed and has become effective but, during the Effectiveness Period,
shall thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded within ten Business Days by a post-effective
amendment to the Shelf Registration Statement, a supplement to the Prospectus or
a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or




     (v) Suspension Periods exceed an aggregate of 45 or 60 days, as the case may
be, within any 90-day period or an aggregate of 120 days in any 360-day period;




(each such event referred to in foregoing clauses (i) through (v), a “Registration
Default”), the Company hereby agrees to pay interest (“Additional Amounts”) with respect
to the Notes that are convertible into Transfer Restricted Securities from and including
the day following the Registration Default to but excluding the earlier of (1) the day on
which the Registration Default has been cured and (2) the date the Shelf Registration
Statement is no longer required to be kept effective, accruing at a rate:




     (A) in respect of the Notes that are convertible into Transfer
Restricted Securities, to each holder of such Notes, (x)



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with respect to the first 90-day period during which a Registration
Default shall have occurred and be continuing, equal to 0.25% per annum
of the aggregate principal amount of the Notes, and (y) with respect to
the period commencing on the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per annum
of the aggregate principal amount of the Notes; provided that in no
event shall Additional Amounts accrue at a rate per year exceeding 0.50%
of the aggregate principal amount of the Notes; and




     (B) in respect of the Notes that are convertible into Transfer
Restricted Securities submitted for conversion into Common Stock during
the existence of a Registration Default with respect to the Common
Stock, the holder will not be entitled to receive any Additional Amounts
with respect to such Common Stock but will receive from the Company on
the settlement date with respect to such conversion, accrued and unpaid
Additional Amounts calculated in accordance with paragraph (A) to the
Conversion Date (as defined in the Indenture); and




     (C) in respect of Common Stock issued upon conversion of Notes,
each holder of such Common Stock will not be entitled to any Additional
Amounts if the Registration Default with respect to such Common Stock
occurs after the holder has converted the Notes into Common Stock.




     (b) All accrued Additional Amounts shall be paid in arrears to Record Holders by the
Company on each Additional Amounts Payment Date. Upon the cure of all Registration
Defaults relating to any particular Transfer Restricted Security, the accrual of
applicable Additional Amounts will cease.



     All obligations of the Company with respect to the payment of Additional Amounts, if any, set
forth in this Section 3 that are outstanding with respect to any Note at the time such security
ceases to be outstanding shall survive until such time as all such obligations with respect to such
Note shall have been satisfied in full.



     The Additional Amounts set forth above shall be the exclusive monetary remedy available to the
Holders of Transfer Restricted Securities for each Registration Default.



     4. Registration Procedures.




     (a) In connection with the Shelf Registration Statement, the Company shall comply
with all the provisions of Section 4(b) hereof and shall use its reasonable efforts to
effect such registration to permit the sale of the Transfer Restricted Securities, and
pursuant thereto, shall prepare and file with the Commission a Shelf Registration
Statement relating to the registration on any appropriate form under the Securities Act,
or otherwise make available for use by the Holders a previously filed Shelf Registration
Statement.



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     (b) In connection with the Shelf Registration Statement and any Prospectus required
by this Agreement to permit the sale or resale of Transfer Restricted Securities, the
Company shall:




     (i) Subject to any notice by the Company in accordance with this Section
4(b) of the existence of any fact or event of the kind described in Section
4(b)(iv)(D), use its reasonable efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; upon the occurrence of
any event that would cause the Shelf Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities during
the Effectiveness Period, the Company shall file promptly an appropriate
amendment to the Shelf Registration Statement, a supplement to the related
Prospectus or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A) or (B), if
such amendment does not become automatically effective upon filing with the
Commission, use its reasonable efforts to cause any such amendment to become
effective and the Shelf Registration Statement and the related Prospectus to
become usable for its intended purposes as soon as practicable thereafter.




     (ii) Notwithstanding Section 4(b)(i) hereof, the Company may suspend the
effectiveness of the Shelf Registration Statement (each such period, a
“Suspension Period”):




          (x) if an event occurs and is continuing as a result of which the Shelf
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein would, in the Company’s judgment,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and




          (y) if the Company determines in good faith that the disclosure of such
event at such time would be seriously detrimental to the Company and its
subsidiaries or that the disclosure of a proposed or pending acquisition,
financing or other material business transaction would be reasonably likely to
impede the Company’s ability to consummate such transaction.




Upon the occurrence of any event described in clauses (x) and (y) of this Section
4(b)(ii), the Company shall give notice to the Holders that the availability of the Shelf
Registration is suspended and, upon actual receipt of any such notice, each Holder agrees
not to sell any Transfer Restricted Securities pursuant to the Shelf Registration until
such Holder’s receipt of copies of the supplemented or amended Prospectus provided for in
Section 4(b) hereof. The period during which the availability of the Shelf Registration
and any Prospectus is suspended (the “Suspension Period”) shall not exceed 45 days in any
90-day period, provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending acquisition, financing or other material business
transaction,



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the disclosure of which the Company determines in good faith would be reasonably likely to
impede the Company’s ability to consummate such transaction, the Company may extend a
Suspension Period from 45 days to 60 days; provided, further, that Suspension Periods
shall not exceed an aggregate of 120 days in any 360-day period. The Company shall not be
required to specify in the written notice to the Holders the nature of the event giving
rise to the Suspension Period. Each Holder agrees, by acquisition of a Transfer
Restricted Security, to hold any communication by the Company in response to a notice of
proposed sale in confidence. No Additional Amounts shall be payable or accrue during any
Suspension Period permitted under this Section 4(b)(i).




     (iii) Prepare and file with the Commission such amendments, post-effective
amendments to the Shelf Registration Statement and reports as may be necessary to
keep the Shelf Registration Statement effective during the Effectiveness Period;
cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply with the applicable provisions of Rule 424 under the Securities Act
in a timely manner; and comply in all material respects with the provisions of
the Securities Act with respect to the disposition of all Transfer Restricted
Securities covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth or to be set forth in the Shelf Registration Statement
or supplement to the Prospectus.




     (iv) Advise the selling Holders and, with respect to clause (C) below, any
Initial Purchaser, that has provided in writing to the Company a telephone or
facsimile number and address for notices, promptly and, if requested by such
selling Holders, to confirm such advice in writing (which notice pursuant to
clauses (B) through (D) below shall be accompanied by an instruction to suspend
the use of the Prospectus until the Company shall have remedied the basis for
such suspension):




     (A) when the Prospectus, any Prospectus supplement, any
post-effective amendment or any Issuer Free Writing Prospectus has been
filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective,




     (B) of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the Prospectus or
any Issuer Free Writing Prospectus or for additional information
relating thereto,




     (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement under the
Securities Act or of any notice that would prevent its use, or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering



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or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes,




     (D) of the existence of any fact or the happening of any event,
during the Effectiveness Period, that makes any statement of a material
fact made in the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or the Prospectus in
order to make the statements therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not
misleading, or




     (E) when any Issuer Free Writing Prospectus includes information
that may conflict with the information contained in the Registration
Statement.




     (v) If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement or any notice that would
prevent its use, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from qualification
of the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable efforts to obtain the withdrawal or lifting
of such order at the earliest possible time, including, if necessary, by filing
an amendment to the Shelf Registration Statement or a new Shelf Registration
Statement and using its reasonable efforts to have such amendment or new Shelf
Registration Statement declared effective, and will provide to each Holder who is
named in the Shelf Registration Statement prompt notice of the withdrawal of any
such order or of the filing or effectiveness of any such amendment or new
registration statement.




     (vi) Make available at reasonable times for inspection by one or more
representatives of the selling Holders, designated in writing by a Majority of
Holders whose Transfer Restricted Securities are included in the Shelf
Registration Statement, and any attorney or accountant retained by such selling
Holders and any Initial Purchaser, for so long as they shall hold any Notes in
connection with the Initial Placement, or underwriter participating in any
disposition pursuant to the Shelf Registration Statement, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries as shall be reasonably necessary to enable them to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act,
and cause the Company and its subsidiaries’ officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, attorney or accountant
in connection therewith, in each case as customary for comparable due diligence
examinations; provided, however, that Company shall not have any obligation to
deliver information to any



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selling Holder or representative pursuant to this Section 4(b)(iv) unless
such selling Holder or representative shall have executed and delivered a
confidentiality agreement in a form reasonably acceptable to the Company relating
to such information.




     (vii) If requested by any selling Holders, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders may reasonably
request to have included therein relating to the “Plan of Distribution” of the
Transfer Restricted Securities.




     (viii) Deliver to each selling Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto, and any Issuer Free Writing Prospectus, as such Persons
reasonably may request; subject to Section 4(b)(ii) and subject to any notice by
the Company in accordance with this Section 4(b) of the existence of any fact or
event of the kind described in Section 4(b)(iv)(B) through (E), the Company
hereby consents to the use of the Prospectus and any amendment or supplement
thereto, and any Issuer Free Writing Prospectus, by each of the selling Holders
in connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement thereto.




     (ix) Before any public offering of Transfer Restricted Securities, cooperate
with the selling Holders and their counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions in the United States as the selling Holders
may reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required (A) to register or qualify as a
foreign corporation or a dealer of securities where it is not now so qualified or
to take any action that would subject it to the service of process in any
jurisdiction where it is not now so subject or (B) to subject itself to general
or unlimited service of process or to taxation in any such jurisdiction if they
are not now so subject.




     (x) Unless any Transfer Restricted Securities shall be in book-entry form
only, cooperate with the selling Holders to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends (unless required by applicable securities
laws); and enable such Transfer Restricted Securities to be in such denominations
and registered in such names as the Holders may request at least two Business
Days before any sale of Transfer Restricted Securities.




     (xi) Subject to Section 4(b)(ii) hereof, if any fact or event contemplated
by Section 4(b)(iv)(B) through (D) hereof shall exist or



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have occurred, use its reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement, related Prospectus
(including by means of an Issuer Free Writing Prospectus), relevant Issuer Free
Writing Prospectus or any document incorporated therein by reference or to file
any other required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, none of the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus will contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus and any such Issuer Free Writing Prospectus, in the light of the
circumstances in which they are made) not misleading.




     (xii) Provide CUSIP numbers for all Transfer Restricted Securities not later
than the effective date of the Shelf Registration Statement and provide the
Trustee under the Indenture with certificates for the Notes that are in a form
eligible for deposit with The Depository Trust Company.




     (xiii) Cooperate and assist in any filings required to be made with the NASD
and in the performance of any due diligence investigation by any underwriter that
is required to be undertaken in accordance with the rules and regulations of the
NASD.




     (xiv) Otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission and all reporting requirements under the
rules and regulations of the Exchange Act.




     (xv) Make generally available to its securityholders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act after the
effective date of the Shelf Registration Statement and in any event no later than
45 days after the end of the 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 the Shelf Registration Statement, which
statements shall be so made generally available to such securityholders as
follows: with respect to an earnings statement which will be contained in one
report on Form 10-K (or any other form as may then be available for such
purpose), such earnings statement shall be made so generally available no later
than the due date by which the Company is required, pursuant to the Exchange Act
(subject to any applicable extensions under Rule 12b-25 thereunder), to file such
report with the Commission; and (ii) with respect to an earnings statement which
will be contained in any combination of reports on Form 10-K or Form 10-Q (or any
other form(s) as may then be available for such purpose), such earnings statement
shall be made so generally available no later than the due date by which the
Company is required, pursuant to the Exchange Act (subject to any applicable
extensions under Rule 12b-25 thereunder), to file the last of such reports which
together constitute such earnings statement.



13









 






     (xvi) Cause all Common Stock covered by the Shelf Registration Statement to
be listed or quoted, as the case may be, on each securities exchange or automated
quotation system on which Common Stock is then listed or quoted.




     (xvii) Provide to each Holder upon written request each report filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act after the effective
date of the Shelf Registration Statement, unless such document is available through the
Commission’s EDGAR system.




     (xviii) Subject to Section 8, in connection with any underwritten offering
conducted pursuant to Section 8 hereof:




               (A) make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement;




               (B) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each selling Holder and
the underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;




               (C) obtain “comfort” letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of Securities registered thereunder
and the underwriters (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified Public Accountants), in
customary form and covering matters of the type customarily covered in “comfort”
letters in connection with primary underwritten offerings; and




               (D) deliver such documents and certificates as may be reasonably requested
by the Majority Holders and the Managing Underwriters, including those to
evidence compliance with Section 4(b)(iii) hereof and with any customary
conditions contained in the Purchase Agreement or other agreement entered into
by the Company.




               (E) if the Company is not then a WKSI, the Company shall, if requested,
include or incorporate in a Prospectus supplement or post-effective amendment to
the Shelf Registration Statement such information as the Managing Underwriters
reasonably request should be included therein in order to comply with the
Securities Act and the rules



14









 







and regulations thereunder and to ensure that such Prospectus supplement or
post-effective amendment to the Shelf Registration Statement does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading and to which
the Company does not reasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as reasonably
practicable after they are notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment.




The actions set forth in clauses (A), (B), (C) and (D) of this Section 4(b)(xvii) shall be
performed at each closing under any underwriting or similar agreement as and to the extent required
thereunder.




     (xix) Use its reasonable efforts to take all other steps necessary to effect
the registration of the Transfer Restricted Securities covered by the Shelf
Registration Statement.




     (xx) Enter into customary agreements (including, if requested, an
underwriting agreement in customary form) and take all other appropriate actions
in order to expedite or facilitate the registration or the disposition of the
Transfer Restricted Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 6 hereof.




     (xxi) To the extent requested by selling Holders, cooperate with the selling Holders to
facilitate the timely delivery of Transfer Restricted Securities in book-entry only form able to be
transferred freely, subject to the delivery of the Prospectus;




     (c) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice (a “Suspension Notice”) from the Company of the existence of any
fact of the kind described in Section 4(b)(iv)(B) through (D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement and use of the Prospectus and any related Free Writing Prospectuses
until:




     (i) such Holder has received copies of the supplemented or amended
Prospectus or applicable Issuer Free Writing Prospectus contemplated by Section
4(b)(xii) hereof; or




     (ii) such Holder is advised in writing by the Company that the use of the
Prospectus and any applicable Issuer Free Writing Prospectus may be resumed, and
has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus, unless such filings are made
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act and
such filings are available through the Commission’s EDGAR system.



15









 




If so directed by the Company, each Holder will deliver to the Company (at the Company’s expense)
all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Transfer Restricted Securities and any Issuer Free Writing Prospectus that was
current at the time of receipt of such Suspension Notice.





     (d) Each Holder agrees by acquisition of a Transfer Restricted Security, that no
Holder shall be entitled to sell any of such Transfer Restricted Securities pursuant to a
Shelf Registration Statement, or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(b) or Section 2(f) hereof (including the information required to be included in
such Notice and Questionnaire) and the information set forth in the next sentence. The
Company may require each Notice Holder of Common Stock to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the Holder and
the distribution of such Common Stock as the Company may from time to time reasonably
require for inclusion in such Registration Statement. Each Notice Holder agrees promptly
to furnish to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Notice Holder not misleading and
any other information regarding such Notice Holder and the distribution of such Transfer
Restricted Securities as the Company may from time to time reasonably request in writing.
The Company may exclude from such Shelf Registration Statement the Notes of any Holder
that unreasonably fails to furnish such information within a reasonable time after
receiving such request. Any sale of any Transfer Restricted Securities by any Holder
shall constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the Prospectus
delivered by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact relating
to or provided by such Holder to its plan of distribution and that such Prospectus does
not as of the time of such sale omit to state any material fact relating to or provided by
such Holder or its plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were made not misleading.



     5. Registration Expenses.




     All expenses incident to the Company’s performance of or compliance with this
Agreement shall be borne by the Company regardless of whether a Shelf Registration
Statement becomes effective, including, without limitation:




     (a) all registration and filing fees and expenses (including filings made with the
NASD);




     (b) all fees and expenses of compliance with federal securities and state Blue Sky or
securities laws;




     (c) all expenses of printing (including printing of Prospectuses, Issuer Free Writing
Prospectuses and certificates for the Common Stock to be issued



16









 







upon conversion of the Notes) and the Company’s expenses for messenger and delivery
services and telephone;




     (d) all fees and disbursements of counsel to the Company;




     (e) all application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and




     (f) all fees and disbursements of independent certified public accountants of the
Company.



     The Company shall bear its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal, accounting or other duties), the expenses
of any annual audit and the fees and expenses of any Person, including special experts, retained by
the Company. The Company shall pay all expenses customarily borne by issuers in an underwritten
offering as set forth in Section 8(c) hereof; provided, however, that the Company shall not be
responsible for the payment of any underwriting discounts or commissions with respect to any
Transfer Restricted Securities sold by or on behalf of any Holder or any fees or expenses of
counsel to any such Holders.



     6. Indemnification And Contribution.




     (a) The Company agrees to indemnify and hold harmless each Holder of Transfer
Restricted Securities covered by the Shelf Registration Statement (including each Initial
Purchaser), its directors, officers, employees and agents, and each person, if any, who
controls any Holder within the meaning of the Securities Act or the Exchange Act (each, an
“Indemnified Holder”), against any loss, claim, damage, liability or expense, as incurred,
or any action in respect thereof (including, but not limited to, any loss, claim, damage,
liability or expense relating to resales of the Transfer Restricted Securities)
(collectively, “Losses”), to which such Indemnified Holder may become subject, insofar as
any such Loss arises out of or is based upon:




     (i) any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements therein
not misleading; or




     (ii) any untrue statement or alleged untrue statement of a material fact
contained in any Issuer Free Writing Prospectus, any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact, in each case, necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading,




and to reimburse each Indemnified Holder for any and all expenses, including the fees and
disbursements of counsel, as such expenses are reasonably incurred by



17









 







such Indemnified Holder in connection with investigating, defending, settling,
compromising or paying any such Loss; provided, however, that the foregoing indemnity
agreement shall not apply to any Loss to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder (or its related Indemnified Holder) expressly for
use therein. The indemnity agreement set forth in this Section 6(a) shall be in addition
to any liabilities that the Company may otherwise have.




The Company also agrees to indemnify as provided in this Section 6(a) or contribute as
provided in Section 6(e) hereof to Losses of each underwriter, if any, of Transfer
Restricted Securities registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial Purchasers and
the selling Holders provided in this Section 6(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in Section
4(b)(xx) hereof.




     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, each of its directors, each of its officers and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act (i) to the same
extent as the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity and (ii) against any Loss, joint or several, including, but not
limited to, any Loss relating to resales of the Transfer Restricted Securities, to which
such person may become subject, insofar as any such Loss arises out of, or is based upon
any Free Writing Prospectus used by such Holder without the prior consent of the Issuer,
and in connection with any underwritten offering, the underwriters, provided that the
indemnification obligation in this clause (ii) shall be several, not joint and several,
among the Holders who used such Free Writing Prospectus. This indemnity agreement set
forth in this Section shall be in addition to any liabilities which any such Holder may
otherwise have.




     (c) Promptly after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof, but the failure to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. In case
any such action is brought against any indemnified party and such indemnified party seeks
or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with any other
indemnifying parties similarly notified, by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice



18









 







from such indemnified party, to assume the defense thereof with counsel satisfactory
to such indemnified party; provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict is reasonably likely to arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such
action or that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any legal or
other expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the reasonable expenses of more than one
separate counsel (other than local counsel), reasonably approved by the indemnifying
party, representing the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice
of commencement of the action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party.




     (d) The indemnifying party under this Section 6 shall not be liable for any
settlement of any proceeding effected without its written consent, which shall not be
withheld unreasonably, but if settled with such consent or if there is a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any Loss by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as contemplated by
Section 6(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement
is entered into more than (x) 90 days after receipt by such indemnifying party of the
aforesaid request and (y) 30 days after receipt by such indemnifying party of the material
terms of such settlement and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (x) includes an
unconditional release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding and (y) does not include a statement as
to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.



19









 






     (e) If the indemnification provided for in Section 6 is for any reason unavailable to
or otherwise insufficient to hold harmless an indemnified party in respect of any Loss
referred to therein, then each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result of any Loss referred
to therein:




     (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Holders, on the other hand,
from the offering and sale of the Transfer Restricted Securities, on the one
hand, and a Holder with respect to the sale by such Holder of the Transfer
Restricted Securities, on the other hand, or




     (ii) if the allocation provided by Section (6)(e)(i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in Section 6(e)(i) above but also the relative
fault of the Company, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions or alleged statements or omissions
that resulted in such Loss, as well as any other relevant equitable
considerations.




The relative benefits received by the Company, on the one hand, and the Holders, on the
other hand, in connection with such offering and such sale of the Transfer Restricted
Securities pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes purchased under the
Purchase Agreement (before deducting expenses) received by the Company and the total
proceeds received by the Holders with respect to their sale of Transfer Restricted
Securities. The relative fault of the Company, on the one hand, and the Holders, on the
other hand, shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, on the one hand, or
the Holders, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company
and the Holders agree that it would not be just and equitable if contribution pursuant to
this Section 6(e) were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 6(e).




     The amount paid or payable by a party as a result of the Loss referred to above shall
be deemed to include, subject to the limitations set forth in Section 6(c), any legal or
other fees or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.




     Notwithstanding the provisions of this Section 6, in no event will (i) any Holder be
required to undertake liability to any person under this Section 6 for any amounts in
excess of the dollar amount of the proceeds to be received by such Holder from the sale of
such Holder’s Transfer Restricted Securities (after deducting any fees, discounts and
commissions applicable thereto) pursuant to any Shelf Registration Statement under which
such Transfer Restricted Securities are to be registered under the Securities Act and (ii)
any underwriter be required



20









 








to undertake liability to any person hereunder for any amounts in excess of the
discount or commission payable to such underwriter with respect to the Transfer Restricted
Securities underwritten by it and distributed to the public. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute as provided in this Section
6(e) are several and not joint.




       (f) The provisions of this Section 6 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder, the Company or any of
the officers, directors or employees, agents or controlling persons referred to in Section
6 hereof, and will survive the sale by a Holder of Transfer Restricted Securities.



7. Rule 144A and Rule 144. The Company agrees with each Holder, if at any time before the end
of the Effectiveness Period the Company is not subject to the reporting requirements of the
Exchange Act , it will cooperate with any Holder of Transfer Restricted Securities and take such
further action as any Holder of Transfer Restricted Securities may reasonably request in writing
(including, without limitation, making such representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the limitations of the
exemptions provided by Rule 144, Rule 144A and Regulation S under the Securities Act and
customarily taken in connection with sales pursuant to such exemptions. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its
securities (other than the Common Stock) under any section of the Exchange Act.



8. Underwritten Registrations.





     (a) Any Holder of Transfer Restricted Securities who desires to do so may sell
Transfer Restricted Securities (in whole or in part) in an underwritten offering; provided
that (i) the Holders of at least a majority in aggregate principal amount of the Transfer
Restricted Securities then covered by the Shelf Registration Statement shall request such
an offering and (ii) such Transfer Restricted Securities with an aggregate market value of
at least $100,000,000 shall be included in such offering; and provided further that the
Company shall not be obligated to participate in more than one underwritten offering
during the Effectiveness Period. Upon receipt of such a request, the Company shall
provide all Holders of Transfer Restricted Securities written notice of the request, which
notice shall inform such Holders that they have the opportunity to participate in the
offering. If any of the Transfer Restricted Securities covered by the Shelf Registration
Statement are to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Company, subject to the prior written consent of the Majority Holders,
which consent shall not be unreasonably withheld.




     (b) No person may participate in any underwritten offering pursuant to the Shelf
Registration Statement unless such person (i) agrees to sell such person’s Transfer
Restricted Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to



21









 







approve such arrangements; (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements; and (iii) if such Holder is not then a
Notice Holder, such Holder returns a completed and signed Notice and Questionnaire to the
Company in accordance with Section 2(b) or Section 2(f) hereof within a reasonable amount
of time before such underwritten offering.




     (c) The Holders participating in any underwritten offering shall be responsible for
any underwriting discounts and commissions and fees and, subject to Section 5 hereof,
expenses of their own counsel. The Company shall pay all expenses customarily borne by
issuers in an underwritten offering, including but not limited to filing fees, the fees
and disbursements of its counsel and independent public accountants and any printing
expenses incurred in connection with such underwritten offering. Notwithstanding anything
to the contrary contained herein, upon receipt of a request from the Managing Underwriter
or a representative of holders of a majority of the Transfer Restricted Securities to be
included in an underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten offering,
the Company may delay the filing of any such amendment or supplement for up to 120 days if
the Board of Directors of the Company shall have determined in good faith that the Company
has a bona fide business reason for such delay.



     9. Miscellaneous.




     (a) Free Writing Prospectuses. Each Holder represents that it has not prepared or
had prepared on its behalf or used or referred to, and agrees that it will not prepare or
have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not
distributed and will not distribute any written materials in connection with the offer or
sale of the Transfer Restricted Securities without the prior express written consent of
the Company and, in connection with any underwritten offering, the underwriters. Any such
Free Writing Prospectus consented to by the Company and, if applicable, the underwriters,
as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents and agrees that it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and recordkeeping.




     (b) Remedies. The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely, and
that, in the event of any such failure, subject to the provisions in Section 3 hereof,
nothing precludes the Initial Purchasers or the Holders from being entitled to exercise
all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, the Initial Purchasers or any
Holder may obtain such relief as may be required to specifically enforce the Company’s
obligations under Section 2 hereof. The Company further agrees to



22









 







waive the defense in any action for specific performance that a remedy at law would
be adequate.




     (c) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of a Majority of Holders;
provided, however, that with respect to any matter that directly or indirectly adversely
affects the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Shelf Registration Statement and
does not directly or indirectly adversely affect the rights of other Holders, may be given
by the Majority Holders, determined on the basis of Transfer Restricted Securities being
sold rather than registered under such Shelf Registration Statement.




     (d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, first class mail (registered or
certified, return receipt requested), facsimile transmission, or air courier guaranteeing
overnight delivery:




     (i) if to a Holder, at the address set forth on the records of the registrar
under the Indenture or the transfer agent of the Common Stock, as the case may
be; and




     (ii) if to the Company, initially at its address set forth in the Purchase
Agreement,


With a copy to:



Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

Facsimile: 212-728-8111

Attention: David K. Boston





     All such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being deposited
in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.



     Any party hereto may change the address for receipt of communications by giving written notice
to the others.




     (e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without
limitation and without the need for an express assignment,



23









 







subsequent Holders of Transfer Restricted Securities. The Company hereby agrees to
extend the benefit of this Agreement to any Holder and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.




     (f) 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 an original and all of which taken together shall constitute one and the same
agreement.




     (g) Jurisdiction. The Company agrees that any suit, action or proceeding against the
Company brought by any Holder or Initial Purchaser, the directors, officers, employees,
Affiliates and agents of any Holder or Initial Purchaser, or by any person who controls
any Holder or Initial Purchaser, arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any State or U.S. federal court in
The City of New York and County of New York, and waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably submits to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.




     (h) Notes Held by the Company or its Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Company or its Affiliates (other than
subsequent Holders if such subsequent Holders are deemed to be Affiliates solely by reason
of their holding of such Transfer Restricted Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such required
percentage.




     (i) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.




     (j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.




     (k) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired thereby, it
being intended that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.




     (l) 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 restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with respect to
such subject matter.



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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	INTEGRA LIFESCIENCES HOLDINGS CORPORATION

 	 
	 	By  	/s/
Stuart M. Essig	 
	 	 	Name:  	Stuart M. Essig	 
	 	 	Title:  	President and Chief Executive Officer	 



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	 	BANC OF AMERICA SECURITIES LLC

J.P. MORGAN SECURITIES INC.

MORGAN STANLEY & CO., INCORPORATED

Acting severally on behalf of themselves and the

several Initial Purchasers





BANC OF AMERICA SECURITIES LLC

 	 
	 	By  	/s/
Banc of America Securities LLC	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	J.P. MORGAN SECURITIES INC.

 	 
	 	By  	/s/
J.P. Morgan Securities Inc.	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MORGAN STANLEY & CO., INCORPORATED

 	 
	 	By  	/s/
Morgan Stanley & Co., Incorporated	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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