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Exhibit
10.1
ORTHOVITA, INC.
EMPLOYEE STOCK PURCHASE
PLAN
Amended and Restated as of
June 26, 2008
ARTICLE I
Introduction
1.01 Statement of
Purpose . The purpose of the Orthovita, Inc. Employee Stock
Purchase Plan (the “Plan”) is to provide eligible
employees of Orthovita, Inc. (the “Company”) and its
subsidiaries an opportunity to purchase common stock of the
Company. The Board of Directors of the Company believes that
employee participation in stock ownership will be to the mutual
benefit of both the employees and the Company.
1.02 Internal Revenue Code
Considerations . The Plan is intended to constitute an
“employee stock purchase plan” within the meaning of
section 423 of the Internal Revenue Code of 1986, as
amended.
1.03 ERISA
Considerations . The Plan is not intended and shall not be
construed as constituting an “employee benefit plan,”
within the meaning of section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended.
ARTICLE II
Definitions
2.01 “ Board of
Directors ” means the board of directors of the Company
or a committee of the board of directors authorized to act on its
behalf.
2.02 “ Code
” means the Internal Revenue Code of 1986, as amended, and
any successor statute of similar nature. References to specific
sections of the Code shall be taken to be references to
corresponding sections of any successor statute.
2.03 “ Committee
” means the committee appointed by the Board of Directors to
administer the Plan, as provided in Section 6.03.
2.04 “ Company
” means Orthovita, Inc., a Pennsylvania
corporation.
2.05 “
Compensation ” means all cash compensation (including,
but not limited to, salary, commissions and bonuses) received by an
Employee from the Company or a Subsidiary and includible in the
Employee’s gross income for federal income tax
purposes.
2.06 “ Continuous
Service ” means the period of time immediately preceding
the Election Date during which the Employee has been employed by an
Employer and during which there has been no interruption of the
Employee’s employment with the Employer. For this purpose,
periods of Excused Absence shall not be considered to be
interruptions of Continuous Service.
2.07 “ Effective
Date ” shall mean June 26, 2008.
2.08 “ Election
Date ” means each
January 1, April 1, July 1 and
October 1 or such other dates as the Committee shall specify.
The first Election Date for the Plan shall be the Effective
Date.
2.09 “ Eligible
Employee ” means each employee of the Employer
(i) who is classified by the Employer as a full or part-time
employee (and not as an independent contractor), (ii) whose
customary employment is for more than twenty (20) hours per
week and for more than six (6) months per year, (iii) who
is not deemed for purposes of section 423(b)(3) of the Code to own
stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the
Company or any subsidiary, and (iv) who has completed at least
six (6) months of Continuous Service with the
Employer.
2.10 “ Employer
” means the Company and each Subsidiary.
2.11 “ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended, and as the same may hereafter be amended.
2.12 “ Excused
Absence ” means absence pursuant to a leave of absence
granted by the Employer, absence due to disability or illness,
absence by reason of a layoff or inactive status due to completion
of an assignment, or absence by reason of uniformed service within
the meaning of the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”). In no event may an Excused
Absence exceed six (6) months in length (or, if longer and if
applicable, the period of the individual’s uniformed services
within the meaning of the USERRA and such period thereafter as such
individual’s right to reemployment by the Employer is
protected by law), and any absence shall cease to be an Excused
Absence upon the earlier of (a) the last day of the calendar
month in which the duration of the absence reaches six
(6) months (or such longer period as may be required under the
USERRA or other applicable law) or (b) the last day of the
calendar month in which the leave expires by its terms, the layoff
or inactive status ends by recall or permanent separation from
service, or recovery from illness or disability occurs.
2.13 “ Market
Value ” means the last price for the Stock as reported on
the principal market on which the Stock is traded for the date of
reference. If there was no such price reported for the date of
reference, “Market Value” means the last reported price
for the Stock on the day next preceding the date of reference for
which such price was reported.
2.14 “
Participant ” means each Eligible Employee who elects
to participate in the Plan.
2.15 “ Plan
” means the Orthovita, Inc. Employee Stock Purchase Plan, as
set forth herein and as hereafter amended.
2.16 “ Purchase
Agreement ” means the instrument prescribed by the
Committee pursuant to which an Eligible Employee may enroll as a
Participant and subscribe for the purchase of shares of Stock on
the terms and conditions offered by the Company. The Purchase
Agreement is intended to evidence the Company’s offer of an
option to the Eligible Employee to purchase Stock on the terms and
conditions set forth therein and herein.
2.17 “ Purchase
Date ” means the last day of each Purchase
Period.
2.18 “ Purchase
Period ” means each calendar quarter or other period
specified by the Committee, beginning on or after the Effective
Date, during which the Participant’s Stock purchase is funded
through payroll deduction accumulations.
2.19 “ Purchase
Price ” means the purchase price for shares of Stock
purchased under the Plan, determined as set forth in
Section 4.03.
2.20 “ Stock
” means the common stock of the Company.
2.21 “
Subsidiary ” means any present or future corporation
(i) which constitutes a “subsidiary corporation”
of the Company as that term is defined in section 424 of the Code,
and (ii) is designated as a participating entity in the Plan
by the Committee. Unless the Committee specifically designates
otherwise, a Canadian or other foreign subsidiary shall not be
considered a Subsidiary for purposes of the Plan, and employees of
such a subsidiary shall not be Eligible Employees.
ARTICLE III
Admission to
Participation
3.01 Initial
Participation . An Eligible Employee may elect to participate
in the Plan and may become a Participant effective as of any
Election Date, by executing and filing with the Committee a
Purchase Agreement at such time in advance of such Election Date as
the Committee shall prescribe. The Purchase Agreement shall remain
in effect until modified or canceled in accordance with the terms
of this Plan.
3.02 Discontinuance of
Participation . A Participant may voluntarily cease his or her
participation in the Plan and stop payroll deductions at any time
by filing a notice of cessation of participation on such form and
at such time in advance of the effective date as the Committee
shall prescribe. Notwithstanding anything in the Plan to the
contrary, if a Participant ceases to be an Eligible Employee, his
or her participation automatically shall cease and no further
purchase of Stock shall be made for the Participant.
3.03 Readmission to
Participation . Any Eligible Employee who has previously been a
Participant, who has discontinued participation (whether by
cessation of eligibility or otherwise), and who wishes to be
reinstated as a Participant may again become a Participant by
executing and filing with the Committee a new Purchase Agreement.
Reinstatement to Participant status shall be effective as of any
Election Date, provided the Participant files a new Purchase
Agreement with the Committee at such time in advance of the
Election Date as the Committee shall prescribe.
ARTICLE IV
Stock Purchase and
Resale
4.01 Reservation of
Shares . There shall be 500,000 shares of Stock reserved for
issuance or transfer under the Plan, subject to adjustment in
accordance with the antidilution provisions hereinafter set forth.
Except as provided in Section 5.02, the aggregate number of
shares of Stock that may be purchased under the Plan shall not
exceed the number of shares of Stock reserved under the
Plan.
4.02 Limitation on Shares
Available . The maximum number of shares of Stock that may be
purchased for each Participant on a Purchase Date is the lesser of
(a) the number of whole and fractional shares of Stock that
can be purchased by applying the full balance of the
Participant’s withheld funds to
the purchase of shares of Stock at the Purchase Price, or
(b) the Participant’s proportionate part of the maximum
number of shares of Stock available under the Plan, as stated in
Section 4.01. Notwithstanding the foregoing, if any person
entitled to purchase shares pursuant to any offering under the Plan
would be deemed for purposes of section 423(b)(3) of the Code to
own stock (including any number of shares of Stock that such person
would be entitled to purchase hereunder) possessing five percent
(5%) or more of the total combined voting power or value of
all classes of stock of the Company, the maximum number of shares
of Stock that such person shall be entitled to purchase pursuant to
the Plan shall be reduced to that number which, when added to the
number of shares of stock that such person is deemed to own
(excluding any number of s
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