UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 30, 2006
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 0-26224 51-0317849
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
311 Enterprise Drive
Plainsboro, NJ 08536
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (609) 275-0500
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITVE AGREEMENT.
On October 30, 2006, Integra LifeSciences Holdings Corporation (the "Company")
entered into amendments to the agreements governing the restricted unit grants
made in 2000 and 2004 to Stuart Essig, the Company's President and Chief
Executive Officer. These amendments were entered into as a result of the
enactment of Section 409A to the Internal Revenue Code of 1986, as amended, and
the proposed regulations thereunder.
2000 Grant Amendment
The following is a summary of the material changes to the Amendment 2006-1,
dated as of October 30, 2006 (the "2000 Grant Amendment"), to the Stuart M.
Essig Restricted Units Agreement dated as of December 22, 2000:
Ability to Defer Delivery: Previously, Mr. Essig had the right to defer the
delivery of the 500,000 shares of common stock deliverable on March 4, 2008
until June 30, 2025 on as many occasions as he desired by giving written notice
no less than six months prior to the next scheduled delivery date for the
shares. Under the 2000 Grant Amendment, Mr. Essig may defer the receipt of the
shares to a later date if the election to defer is made at least 12 months prior
to the date the shares are scheduled to be delivered, the new delivery date is
no sooner than five years from the date the shares were scheduled to be
delivered and the new election is irrevocable, but shall not become effective
for 12 months after the date the election is made. However, if the election to
defer is made by December 31, 2007, the above requirements shall not apply and
Mr. Essig may choose any delivery date after December 31, 2007. If the election
to defer delivery is made after December 31, 2007, the delivery date may be
delayed as many times as Mr. Essig desires, provided that the latest an election
may be made is June 30, 2020 and the latest the delivery date can be is June 30,
2025.
Delivery upon a Change in Control: Previously, if a change in control occured,
Mr. Essig had the right to elect to receive the delivery of the shares on any
date he elected. The 2000 Grant Amendment provides for immediate delivery on a
change in control so long as the change in control meets the requirements of
Section 409A(a)(2)(v) of the Internal Revenue Code.
2004 Grant Amendment
The following is a summary of the material changes to the Amendment 2006-1,
dated as of October 30, 2006 (the "2004 Grant Amendment"), to the Stuart M.
Essig Contract Stock/Restricted Units Agreement dated as of July 27, 2004:
Date of Delivery: Previously, the 750,000 shares of common stock underlying the
restricted units granted in 2004 was to be delivered on the first business day
following the date Mr. Essig's employment terminated, unless the shares were
previously delivered upon a change in control of Integra or certain tax events
under the agreement. In addition, if Mr. Essig was terminated for cause prior to
December 31, 2009, the shares would have been distributed in January 2017. The
2004 Grant Amendment provides that the shares shall be paid out as soon as
administratively practicable on or after the first business day that occurs
immediately following the 6-month period after the date of Mr. Essig's
separation from service from Integra.
Ability to Defer Delivery: Mr. Essig previously had a one-time opportunity to
make an election to further defer the delivery of the shares if the new delivery
date was not beyond June 20, 2029, the election was made at least 12 months
prior to the distribution date and the new delivery date was no sooner than 5
years from the date the shares were scheduled to be delivered. The 2004 Grant
Amendment requires that this one-time opportunity to defer must take place
before the end of 2007. The 2004 Grant Amendment further provides that the
delivery of the shares will be on the later of separation from service or the
specified date elected.
Delivery upon a Change in Control: Previously, if a change in control occurred,
the timing of the delivery of shares would have been governed by the terms of
Mr. Essig's employment agreement, which provides for delivery of the shares on
the date of the change in control, unless legislation requires a later delivery.
The 2004 Grant Amendment provides for immediate delivery on a change in control
if a change in control occurs prior to the termination of Mr. Essig's employment
and the date designated by Mr. Essig, if any, pursuant to the preceding
paragraph, so long as the change in control meets the requirements of Section
409A(a)(2)(v) of the Internal Revenue Code.
Copies of the 2000 Grant Amendment and the 2000 Grant Amendment are attached as
Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on Form 8-K
and are incorporated by reference into this Item.
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
(a) On October 30, 2006, the Board of Directors of the Company amended the
Company's Amended and Restated By-Laws to change the vote standard for the
election of directors from a plurality to a majority of votes cast in
uncontested elections. A majority of the votes cast means that the number of
shares voted "for" a director must exceed the number of votes cast "against"
that director. In contested elections where the number of nominees exceeds the
number of directors to be elected, the vote standard will continue to be a
plurality of votes cast.
In addition, if a nominee who already serves as a director is not elected, the
director shall offer to tender his or her resignation to the Board of Directors.
The Nominating and Corporate Governance Committee will make a recommendation to
the Board on whether to accept or reject the resignation, or whether other
action should be taken. The Board will act on the Committee's recommendation and
publicly disclose its decision and the rationale behind it within 90 days from
the date of the certification of the election results. The director who tenders
his or her resignation will not participate in the Board's decision.
The Amended and Restated By-Laws of the Company, as amended on October 30, 2006,
are attached as Exhibit 3.1 to this Current Report on Form 8-K.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
Exhibit Number Description of Exhibit
- -------------- ---------------------------
3.1 Amended and Restated By-Laws of Integra LifeSciences Holdings
Corporation, as amended October 30, 2006
10.1 Amendment 2006-1, dated as of October 30, 2006, to the Stuart
M. Essig Restricted Units Agreement dated as of December 22,
2000
10.2 Amendment 2006-1, dated as of October 30, 2006, to the Stuart
M. Essig Contract Stock/Restricted Units Agreement dated as of
July 27, 2004
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
Date: November 3, 2006 By: /s/ Stuart M. Essig
-----------------------------
Stuart M. Essig
President and Chief Executive Officer
Exhibit Index
Exhibit Number Description of Exhibit
- -------------- ---------------------------
3.1 Amended and Restated By-Laws of Integra LifeSciences Holdings
Corporation, as amended October 30, 2006
10.1 Amendment 2006-1, dated as of October 30, 2006, to the Stuart
M. Essig Restricted Units Agreement dated as of December 22,
2000
10.2 Amendment 2006-1, dated as of October 30, 2006, to the Stuart
M. Essig Contract Stock/Restricted Units Agreement dated as of
July 27, 2004
(As amended through
October 30, 2006)
AMENDED AND RESTATED BY-LAWS
of
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
(A Delaware Corporation)
ARTICLE 1
OFFICES
Section 1.01 Offices. The Corporation may have offices at such
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.01 Place of Meeting. Meetings of the stockholders shall
be held at such place, within the State of Delaware or elsewhere; as may be
fixed from time to time by the Board of Directors. If no place is so fixed for a
meeting, it shall be held at the Corporation's then principal executive office.
Section 2.02 Annual Meeting. The annual meeting of stockholders
shall be held, unless the Board of Directors shall fix some other hour or date
therefor, at nine o'clock A.M. on the first Monday of May in each year, if not a
legal holiday under the laws of Delaware, and, if a legal holiday, then on the
next succeeding secular day not a legal holiday under the laws of Delaware, at
which the stockholders shall elect a Board of Directors, and transact such other
business as may properly be brought before the meeting.
Section 2.03 Notice of Annual Meetings. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than 10 days nor more
than 60 days before the date of the meeting.
Section 2.04 List of Stockholders. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least 10 days
before every meeting of stockholders, a complete list of stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least 10 days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be so specified in the notice
of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 2.05 Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman of
the Board or the President and shall be called by the President or Secretary at
the request in writing of a majority of the Board of Directors. Such request
shall state the purpose or purposes of the proposed meeting. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
Section 2.06 Notice of Special Meetings. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than 10 days nor more than 60 days
before the date of the meeting.
Section 2.07 Quorum; Voting. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. At any meeting of stockholders (at which
a quorum is present to organize the meeting), all matters, except as otherwise
provided by applicable law, pursuant to any regulation applicable to the
Corporation or its securities or by the Certificate of Incorporation or by these
By-Laws (including the election of directors), shall be decided by the
affirmative vote of a majority in voting power of shares present in person or
represented by proxy and entitled to vote thereon. Unless otherwise provided in
the Certificate of Incorporation, each stockholder shall at every meeting of
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no shares shall
be voted pursuant to a proxy more than three years after the date of the proxy
unless the proxy provides for a longer period. The Board of Directors may by
resolution establish a method for stockholders to cast their vote by a secure
electronic method.
Section 2.08 Action Without a Meeting. Unless otherwise restricted
by the Certificate of Incorporation, any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing setting forth the action so taken shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in the State, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
made to a corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. Every written consent shall bear the
date of
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signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty days after the earliest dated consent delivered in the manner required by
this Section to the corporation, written consents signed by a sufficient number
of stockholders to take action are delivered in the manner required by this
Section to the Corporation. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
Section 3.01 Number and Term of Office. The number of directors of
the Corporation shall be not less than three nor more than thirteen, as
designated from time to time by resolution of the Board of Directors. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 3.02 hereof. Except as provided in Section 3.02 hereof, each
director shall be elected by the vote of the majority of the votes cast with
respect to the director, provided that if the number of nominees exceeds the
number of directors to be elected, the directors shall be elected by the vote of
a plurality of the votes cast. For purposes of this Section, a majority of the
votes cast means that the number of shares voted "for" a director must exceed
the number of votes cast "against" that director. If a director is not elected,
the director shall offer to tender his or her resignation to the Board of
Directors. The Nominating and Corporate Governance Committee will make a
recommendation to the Board of Directors on whether to accept or reject the
resignation, or whether other action should be taken. The Board of Directors
will act on the Committee's recommendation and publicly disclose its decision
and the rationale behind it within 90 days from the date of the certification of
the election results. The director who tenders his or her resignation will not
participate in the Board of Directors' decision. Directors shall hold office
until the next annual meeting of stockholders and until their successors shall
be duly elected and qualified or until their earlier death, resignation or
removal. Directors need not be stockholders. If, for any cause, the Board of
Directors shall not have been elected at an annual meeting of stockholders, they
may be elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these By-Laws.
Section 3.02 Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole Board of
Directors (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least 10 percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
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Section 3.03 Resignations. Any director may resign at any time by
giving written notice to the Board of Directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time of
receipt thereof or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 3.04 Direction of Management. The business of the
Corporation shall be managed under the direction of its Board of Directors,
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 3.05 Place of Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
Section 3.06 Annual Meeting. Immediately after each annual
election of directors, the Board of Directors shall meet for the purpose of
organization, election of officers, and the transaction of other business, at
the place where such election of directors was held or, if notice of such
meeting is given, at the place specified in such notice. Notice of such meeting
need not be given. In the absence of a quorum at said meeting, the same may be
held at any other time and place which shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as shall
be specified in a written waiver signed by the directors, if any, not attending
and participating in the meeting.
Section 3.07 Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board of Directors.
Section 3.08 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, or the President on 2
days' notice to each director; either personally (including telephone), or in
the manner specified in Section 4.01; special meetings shall be called by the
Chairman of the Board, or the President or the Secretary in like manner and on
like notice of the written request of two directors.
Section 3.09 Quorum; Voting. At all meetings of the Board of
Directors, a majority of the directors shall constitute a quorum for the
transaction of business; and at all meetings of any committee of the Board of
Directors, a majority of the members of such committee shall constitute a quorum
for the transaction of business. The act of a majority of the directors present
at any meeting of the Board of Directors or any committee thereof at which there
is a quorum present shall be the act of the Board of Directors or such
committee, as the case may be, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors or committee thereof, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 3.10 Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may
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be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 3.11 Participation in Meetings. One or more directors may
participate in any meeting of the Board of Directors or committee thereof by
means of conference telephone or similar communications equipment by which all
persons participating can hear each other.
Section 3.12 Committees of Directors. The Board of Directors may,
by resolution passed by a majority of the whole Board of Directors, designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution, shall have and may exercise all of the powers
and authority of the Board of Directors and may authorize the seal of the
Corporation to be affixed to all papers which may require it, but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution providing for the issuance of shares of stock
adopted by the Board of Directors, fix any preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation), adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution expressly so provides, no such committee shall have the
power or authority to declare a dividend, to authorize the issuance of stock, or
to adopt a certificate of ownership and merger. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
requested.
Section 3.13 Compensation of Directors. Each director shall be
entitled to receive such compensation, if any, as may from time to time be fixed
by the Board of Directors. Members of special or standing committees may be
allowed like compensation for attending committee meetings. Directors may also
be reimbursed by the Corporation for all reasonable expenses incurred in
traveling to and from the place of each meeting of the Board of Directors or of
any such committee or otherwise incurred in the performance of their duties as
directors. No payment referred to herein shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE 4
NOTICES
Section 4.01 Notices. Whenever, under the provisions of law or of
the Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, such requirement shall not be construed to
necessitate personal notice. Such notice may in every instance be effectively
given by depositing a writing in a post office or letter box, in a postpaid,
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sealed wrapper, or by dispatching a prepaid telegram, cable, telecopy or telex
or by delivering a writing in a sealed wrapper prepaid to a courier service
guaranteeing delivery within 2 business days, in each case addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation in the case of a stockholder and at his business address (unless he
shall have filed a written request with the Secretary that notices be directed
to a different address) in the case of a director. Such notice shall be deemed
to be given at the time it is so dispatched. Notice to directors may be given by
electronic transmission or facsimile. Except as otherwise provided by Delaware
law, notice to stockholders may also be given by a form of electronic
transmission consented to by the stockholder to whom the notice is being given.
Any such consent shall be revocable by the stockholder by written notice to the
Corporation. Notice given by a form of electronic transmission shall be deemed
given (i) if by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice, (ii) if by electronic mail,
when directed to an electronic mail address at which the stockholder has
consented to receive notice, (iii) if by posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate notice, and
(iv) if by any other form of electronic transmission, when directed to the
stockholder.
Section 4.02 Waiver of Notice. Whenever, under the provisions of
law or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time of the event
for which notice is to be given, shall be deemed equivalent thereto. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE 5
OFFICERS
Section 5.01 Number. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a
Treasurer, and may also include one or more Vice Presidents, one or more
Assistant Secretaries and Assistant Treasurers, and such other officers as may
be elected by the Board of Directors. Any number of offices may be held by the
same person.
Section 5.02 Election and Term of Office. The officers of the
Corporation shall be elected by the Board of Directors. Officers shall hold
office at the pleasure of the Board of Directors.
Section 5.03 Removal. Any officer may be removed at any time by
the Board of Directors. Any vacancy occurring in any office of the Corporation
may be filled by the Board of Directors.
Section 5.04 Chairman of the Board. The Chairman of the Board, if
there is one, shall preside at all meetings of the Board of Directors and shall
perform such other duties, if any, as from time to time may be assigned to him
by the Board of Directors.
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Section 5.05 Chief Executive Officer. The Chief Executive Officer,
if there is one, shall have overall responsibility for the management of the
business and operations of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. In the absence of
the Chairman of the Board, he shall preside over meetings of the Board of
Directors. In general, he shall perform such duties as from time to time may be
assigned to him by the Board of Directors.
Section 5.06 President. In the absence of the Chief Executive
Officer, the President shall have overall responsibility for the management of
the business and operations of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. In the absence of
the Chairman of the Board and the Chief Executive Officer, he shall preside over
meetings of the Board of Directors. In general, he shall perform such duties as
from time to time may be assigned to him by the Board of Directors.
Section 5.07 Executive Vice Presidents or Senior Vice Presidents.
The Executive Vice Presidents or Senior Vice Presidents shall perform such
managerial duties and have such authority as may be specified in these By-Laws
or by the Board of Directors, the Chairman of the Board, or the President. In
the absence or disability of the President, the Executive Vice Presidents or
Senior Vice Presidents, in order of seniority established by the Board of
Directors or the Chairman of the Board, shall perform the duties and exercise
the powers of the President.
Section 5.08 Vice Presidents. The Vice Presidents shall perform
such duties and have such authority as may be specified in these By-Laws or by
the Board of Directors, the Chairman of the Board, or the President.
Section 5.09 Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the stockholders and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors, the Chairman of the Board, or the President. He shall have custody
of the corporate seal of the Corporation and he, or an Assistant Secretary,
shall have authority to affix the same to any instrument, and when so affixed it
may be attested by his signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
Section 5.10 Assistant Secretaries. The Assistant Secretary or
Secretaries shall, in the absence or disability of the Secretary, perform the
duties and exercise the authority of the Secretary, and shall perform such other
duties and have such other authority as the Board of Directors, the Chairman of
the Board, or the President may from time to time prescribe.
Section 5.11 Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the Corporation in
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such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, the Chairman of the Board, or the President, or the Chief Financial
Officer, taking proper vouchers for such disbursements, and shall render to the
Board of Directors when the Board of Directors so requires, an account of all
his transactions as Treasurer and of the financial condition of the Corporation.
Section 5.12 Assistant Treasurers. The Assistant Treasurer or
Treasurers shall, in the absence or disability of the Treasurer, perform the
duties and exercise the authority of the Treasurer and shall perform such other
duties and have such other authority as the Board of Directors may from time to
time prescribe.
ARTICLE 6
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.01 Indemnification. Any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was serving while a director or officer of the Corporation
at the request of the Corporation as a director, officer, employee, agent,
fiduciary or other representative of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall be indemnified
by the Corporation against expenses (including attorneys' fees), judgments,
fines, excise taxes and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding to
the full extent permissible under Delaware law.
Section 6.02 Advances. Any person claiming indemnification within
the scope of Section 6.01 shall be entitled to advances from the Corporation for
payment of the expenses of defending actions against such person in the manner
and to the full extent permissible under Delaware law.
Section 6.03 Procedure. On the request of any person requesting
indemnification under Section 6.01, the Board of Directors or a committee
thereof shall determine whether such indemnification is permissible or such
determination shall be made by independent legal counsel if the Board of
Directors or committee so directs or if the Board of Directors or committee is
not empowered by statute to make such determination.
Section 6.04 Other Rights. The indemnification and advancement of
expenses provided by this Article 6 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any insurance or other agreement, vote of shareholders or
disinterested directors or otherwise, both as to actions in their official
capacity and as to actions in another capacity while holding an office, and
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such
person.
Section 6.05 Insurance. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the
8
Corporation as a director, officer, employee, agent, fiduciary or other
representative of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of these By-laws.
Section 6.06 Modification. The duties of the Corporation to
indemnify and to advance expenses to a director or officer provided in this
Article 6 shall be in the nature of a contract between the Corporation and each
such director or officer, and no amendment or repeal of any provision of this
Article 6 shall alter, to the detriment of such director or officer, the right
of such person to the advancement of expenses or indemnification related to a
claim based on an act or failure to act which took place prior to such
amendment, repeal or termination.
ARTICLE 7
CERTIFICATES OF STOCK
Section 7.01 Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate in the form prescribed by
the Board of Directors signed on behalf of the Corporation by the Chairman of
the Board or the President or a Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, representing the number of shares owned by him in the Corporation.
Any or all signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent, or registrar at the date of issue.
Section 7.02 Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct or indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 7.03 Transfers of Stock. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 7.04 Fixing Record Date. The Board of Directors of the
Corporation may fix a record date for the purpose of determining the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment
9
thereof, or to consent to corporate action in writing without a meeting, or to
receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action. Such record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors and such record date shall not be (i) in
the case of such a meeting of stockholders, more than 60 nor less than 10 days
before the date of the meeting of stockholders, or (ii) in the case of consents
in writing without a meeting, more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors, or (iii)
in other cases, more than 60 days prior to the payment or allotment or change,
conversion or exchange or other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting unless the Board of Directors fixes a new
record date for the adjourned meeting.
Section 7.05 Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of stock to receive dividends and to vote as such owner, and shall be
entitled to hold liable for calls and assessments a person registered on its
books as the owner of stock, and shall not be bound to recognize any equitable
or other claim to, or interest in, such stock on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE 8
AMENDMENTS
Section 8.01 Amendments. These By-Laws may be altered, amended or
repealed, and new By-Laws may be adopted, by the stockholders or by the Board of
Directors at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
By-Laws be contained in the notice of such special meeting.
10
3
AMENDMENT 2006-1
TO THE
STUART M. ESSIG RESTRICTED UNITS AGREEMENT
DATED AS OF DECEMBER 22, 2000
AMENDMENT, dated as of October 30, 2006, between Integra LifeSciences
Holdings Corporation, a Delaware Corporation (the "Company") and Stuart M. Essig
(the "Executive").
RECITALS
WHEREAS, pursuant to a Restricted Units Agreement, dated as of December
22, 2000, (the "RSU Agreement") the Company granted to Executive an aggregate of
1,250,000 restricted units (the "Units") that represented an equal number of
shares of restricted common stock of the Company, par value $0.01 per share,
("Common Stock") under the Integra LifeSciences Holdings Corporation 2000 Equity
Incentive Plan;
WHEREAS, the RSU Agreement provided that if Executive was employed by
the Company on December 31, 2005, the Units awarded to Executive would be paid
to him on January 1, 2006;
WHEREAS, the RSU Agreement also provided that during the 20-year period
ending June 30, 2005, Executive had the right to defer delivery of the shares of
Common Stock of the Company corresponding to the Units (the "Unit Shares") on as
many occasions as Executive determines by providing written notice to the
Company no less than six months prior to the next scheduled delivery date for
the Unit Shares (which was extended to twelve months pursuant to Executive's
Second Amended and Restated Employment Agreement, dated as of July 27, 2004);
WHEREAS, on December 21, 2004, Executive elected to defer receipt of
500,000 of the Unit Shares to March 4, 2008;
WHEREAS, on January 3, 2006, the 750,000 Unit Shares that were not
deferred pursuant to Executive's prior deferral election were distributed to
him;
WHEREAS, after the grant of the Units to Executive, section 409A was
added to the Internal Revenue Code of 1986, as amended (the `Code");
WHEREAS, based on the available guidance issued under section 409A of
the Code, it was determined that the provisions of section 409A of the Code
apply to the Unit Shares that have not previously been paid;
WHEREAS, the Company and Executive mutually desire to amend the RSU
Agreement to comply with the requirements of section 409A of the Code; and
WHEREAS, Section 11 of the RSU Agreement provides that the RSU
Agreement may be amended if the amendment is agreed to in writing between
Executive and the Company.
NOW, THEREFORE, the Company and Executive hereby agree that the RSU
Agreement shall be amended as follows:
1. Effective as of January 1, 2005, Section 4(a) of the RSU Agreement
is hereby amended in its entirety to read as follows:
"(a) The shares of Common Stock underlying the Units (the
"Unit Shares") shall be paid out to Executive as follows, if
Executive is still employed by the Company on December 31,
2005; (i) 750,000 Unit Shares on January 3, 2006, and (ii)
500,000 Unit Shares on March 4, 2008, or as soon as
administratively practicable thereafter; provided, however,
that Executive may subsequently defer the receipt of the Unit
Shares covered by clause (ii) to a later date if the election
to defer meets the following requirements: (x) the election to
defer is made at least 12 months prior to the date the Unit
Shares are scheduled to be delivered, (y) the new delivery
date is no sooner than 5 years from the date the Unit Shares
were scheduled to be delivered, and (z) the new election is
irrevocable, but shall not become effective for 12 months
after the date the election is made. Notwithstanding the
immediately preceding sentence, if the election to defer is
made by December 31, 2007, the requirements of clauses (x),
(y) and (z) shall not be applicable and Executive may choose
any delivery date after December 31, 2007. If the election to
defer delivery is made after December 31, 2007, the delivery
date can be delayed as many times as Executive desires;
provided that the latest an election can be made is June 30,
2020 and the latest the delivery date can be paid is June 30,
2025. Notwithstanding the foregoing, if a Change in Control
(as defined in the Employment Agreement) occurs prior to the
delivery date designated by Executive, the Unit Shares shall
be delivered to Executive on the date of the Change in
Control; provided, however, that such delivery shall only
occur if the Change in Control meets the requirements of
section 409A(a)(2)(v) of the Internal Revenue Code of 1986, as
amended (the "Code"), and its corresponding regulations."
2. Effective as of January 1, 2005, a new Section 20 is hereby added to
the end of the RSU Agreement to read as follows:
"20. SECTION 409A OF THE CODE. Notwithstanding anything in
this Agreement to the contrary, this Agreement is intended to
be operated in compliance with the requirements of section
409A of the Code and its corresponding regulations and related
guidance. As a result, the Company shall not make any payments
under this Agreement earlier than the earliest date permitted
by section 409A of the Code, or later than the latest date
permitted by section 409A of the Code, if, as determined in
the reasonable judgment of the Company, payment on the
originally scheduled date would cause Executive to incur
adverse tax consequences under section 409A of the Code.
Further, the Company may make any amendments to this Agreement
as it deems necessary and appropriate for the Agreement to
2
comply with the requirements of section 409A of the Code, and
the consent of Executive is not required for such amendment of
the Agreement."
3. In all respects not modified by this Amendment 2006-1, the RSU
Agreement is hereby ratified and confirmed.
IN WITNESS WHEREOF, the Company and Executive agree to the terms of the
foregoing Amendment 2006-1, effective as of January 1, 2005.
INTEGRA LIFESCIENCES HOLDINGS
CORPORATION
By:/s/ Richard E. Caruso /s/ Stuart M. Essig
----------------------- -------------------
Name: Richard E. Caruso Executive
Title: Chairman
10/30/06 10/30/06
----------------------- ---------------------
Date Date
3
2
AMENDMENT 2006-1
TO THE
STUART M. ESSIG CONTRACT STOCK/RESTRICTED UNITS AGREEMENT
DATED AS OF JULY 27, 2004
AMENDMENT, dated as of October 30, 2006, between Integra LifeSciences
Holdings Corporation, a Delaware Corporation (the "Company") and Stuart M. Essig
(the "Executive").
RECITALS
WHEREAS, pursuant to a Contract Stock/Restricted Units Agreement, dated
as of July 27, 2004, (the "RSU Agreement") the Company granted to Executive an
aggregate of 750,000 shares of contract stock in the form of restricted units
(the "Units") that represented an equal number of shares of restricted common
stock of the Company, par value $0.01 per share, ("Common Stock") under the
Integra LifeSciences Holdings Corporation 2003 Equity Incentive Plan;
WHEREAS, the RSU Agreement provided that the shares of Common Stock
underlying the Units (the "Unit Shares") will be paid out to Executive on the
first day following the date Executive's employment with the Company terminates,
provided that Executive would have a one-time opportunity to delay delivery of
the Unit Shares;
WHEREAS, after the grant of the Units to Executive, section 409A was
added to the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, as a result of the uncertainty regarding the impact of section
409A of the Code on the distribution of the Units to Executive, it was
determined that the provisions of section 409A of the Code will apply to the
Units, and the Company and Executive mutually desire to amend the RSU Agreement
to comply with the requirements of section 409A of the Code; and
WHEREAS, Section 11 of the RSU Agreement provides that the RSU
Agreement may be amended if the amendment is agreed to in writing between
Executive and the Company.
NOW, THEREFORE, the Company and Executive hereby agree that the RSU
Agreement shall be amended as follows:
1. Effective as of January 1, 2005, Section 4(a) of the RSU Agreement
is hereby amended in its entirety to read as follows:
"(a) The shares of Common Stock underlying the Units (the
"Unit Shares") shall be paid out to Executive as soon as
administratively practicable on or after the first business
day that occurs immediately following the 6-month period after
the date of Executive's separation from service from the
Company; provided, however, that Executive shall have a
one-time opportunity to specify a date (which is no sooner
than January 1, 2008 and no later than June 30, 2029) on which
the Unit Shares shall be delivered if such date occurs after
the date on which Executive's employment with the Company
terminates by giving written notice to the Company by December
31, 2007. Notwithstanding the foregoing, if a Change in
Control (as defined in the Employment Agreement) occurs prior
to the termination of Executive's employment with the Company
and the date designated by Executive, if any, pursuant to the
immediately preceding sentence, the Unit Shares shall be paid
to Executive on the date of the Change in Control; provided,
however, that such payment shall only occur if the Change in
Control meets the requirements of section 409A(a)(2)(v) of the
Internal Revenue Code of 1986, as amended (the "Code") and its
corresponding regulations."
2. Effective as of January 1, 2005, a new Section 20 is hereby added to
the end of the RSU Agreement to read as follows:
"20. SECTION 409A OF THE CODE. Notwithstanding anything in
this Agreement to the contrary, this Agreement is intended to
be operated in compliance with the requirements of section
409A of the Code and its corresponding regulations and related
guidance. As a result, the Company shall not make any payments
under this Agreement earlier than the earliest date permitted
by section 409A of the Code, or later than the latest date
permitted by section 409A of the Code, if, as determined in
the reasonable judgment of the Company, payment on the
originally scheduled date would cause Executive to incur
adverse tax consequences under section 409A of the Code.
Further, the Company may make any amendments to this Agreement
as it deems necessary and appropriate for the Agreement to
comply with the requirements of section 409A of the Code, and
the consent of Executive is not required for such amendment of
the Agreement."
3. In all respects not modified by this Amendment 2006-1, the RSU
Agreement is hereby ratified and confirmed.
IN WITNESS WHEREOF, the Company and Executive agree to the terms of the
foregoing Amendment 2006-1, effective as of January 1, 2005.
INTEGRA LIFESCIENCES HOLDINGS
CORPORATION
By:/s/ Richard E. Caruso Stuart M. Essig
----------------------- --------------------
Name: Richard E. Caruso Executive
Title: Chairman
10/30/06 10/30/06
----------------------- --------------------
Date Date
2