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 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, provided that the Plan is
approved by the shareholders of the Company within twelve
(12) months after the date on which the Plan is
adopted.
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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.
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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.
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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
