EXHIBIT 10.14
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BIOMIMETIC THERAPEUTICS, INC.
2005 EMPLOYEE STOCK PURCHASE PLAN
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TABLE OF CONTENTS
Page
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Section 1. Purpose.........................................................1
Section 2. Definitions.....................................................1
Section 3. Eligibility.....................................................3
Section 4. Offering Periods................................................3
Section 5. Participation...................................................4
Section 6. Payroll Deductions..............................................4
Section 7. Grant of Option.................................................5
Section 8. Exercise of Option..............................................5
Section 9. Delivery........................................................6
Section 10. Withdrawal......................................................6
Section 11. Termination of Employment.......................................6
Section 12. Interest........................................................6
Section 13. Stock...........................................................6
Section 14. Administration..................................................7
Section 15. Designation of Beneficiary......................................7
Section 16. Transferability.................................................8
Section 17. Use of Funds....................................................8
Section 18. Reports.........................................................8
Section 19. Adjustments Upon Changes in Capitalization, Dissolution,
Liquidation, Merger or Asset Sale...............................8
Section 20. Amendment or Termination........................................9
Section 21. Conditions Upon Issuance of Shares.............................10
Section 22. Term of Plan...................................................10
Section 23. Notices........................................................10
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BIOMIMETIC THERAPEUTICS, INC.
2005 EMPLOYEE STOCK PURCHASE PLAN
Section 1. Purpose. The purpose of the BIOMIMETIC THERAPEUTICS, INC. 2005
EMPLOYEE STOCK PURCHASE PLAN (the "Plan") is to promote the interest of
BioMimetic Pharmaceuticals, Inc., a Delaware corporation (the "Company") and its
stockholders by providing employees of the Company and its Designated
Subsidiaries with an opportunity to purchase Common Stock of the Company through
accumulated payroll deductions. By encouraging stock ownership, the Company
seeks to attract, retain and motivate employees and to encourage them to devote
their best efforts to the business and financial success of the Company. It is
the intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Code. The provisions of the Plan,
accordingly, shall be construed in a manner consistent with the requirements of
that section of the Code.
Section 2. Definitions. For purposes of the Plan, the following capitalized
terms shall have the following meanings:
2.1 "Board of Directors" or "Board" means the Board of Directors of
the Company.
2.2 "Code" means the Internal Revenue Code of 1986, as amended.
2.3 "Committee" means the committee to be selected by the Board, and
shall consist solely of two or more Board members who are not employees of
the Company or any Subsidiary unless otherwise determined by the Board. If
the Committee does not exist, or for any other reason determined by the
Board, the Board shall be considered the Committee and may take any action
under the Plan that would otherwise be the responsibility of the Committee.
2.4 "Common Stock" means the common stock, $0.01 par value, of the
Company.
2.5 "Company" means BioMimetic Pharmaceuticals, Inc. and any
Designated Subsidiary of the Company.
2.6 "Compensation" means all base straight time gross earnings and
commissions, but exclusive of payments for overtime, shift premium,
incentive compensation, incentive payments, bonuses and other compensation.
2.7 "Designated Subsidiary" means any Subsidiary that has been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
2.8 "Employee" means any individual who is an employee of the Company
as the term is used in Treasury Regulation Section 1.423-2(e) and described
in Treasury Regulation Section 1.421-1(h); PROVIDED, HOWEVER, EMPLOYEES WHO
HAVE BEEN
EMPLOYED LESS THAN ONE YEAR, EMPLOYEES WHOSE CUSTOMARY EMPLOYMENT WITH THE
COMPANY IS TWENTY (20) HOURS OR LESS PER WEEK, AND EMPLOYEES WHOSE
CUSTOMARY EMPLOYMENT WITH THE COMPANY IS FOR NOT MORE THAN FIVE (5) MONTHS
IN ANY CALENDAR YEAR SHALL NOT BE DEEMED EMPLOYEES FOR THE PURPOSES OF THIS
PLAN. For purposes of the Plan, the employment relationship shall be
treated as continuing intact while the individual is on sick leave or other
leave of absence approved by the Company. Where the period of leave exceeds
90 days and the individual's right to reemployment is not guaranteed either
by statute or by contract, the employment relationship shall be deemed to
have terminated on the 91st day of such leave.
2.9 "Enrollment Date" means the first Trading Day of each Offering
Period.
2.10 "Exercise Date" means the last Trading Day of each Offering
Period.
2.11 "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
2.11.1 If the principal market for the Common Stock is a national
securities exchange or the NASDAQ stock market, then the "Fair Market
Value" as of that date shall be the mean between the lowest and
highest reported sale prices of the Common Stock on that date on the
principal exchange or market on which the Stock is then listed or
admitted to trading.
2.11.2 If sale prices are not available or if the principal
market for the Stock is not a national securities exchange and the
Common Stock is not quoted on the NASDAQ stock market, the average
between the highest bid and lowest asked prices for the Common Stock
on such day as reported on the NASDAQ OTC Bulletin Board Service or by
the National Quotation Bureau, Incorporated or a comparable service.
2.11.3 If the day is not a business day, and as a result,
paragraphs 2.11.1 and 2.11.2 above are inapplicable, the "Fair Market
Value" of the Stock shall be determined as of the next earlier
business day. If paragraphs 2.11.1 and 2.11.2 above are otherwise
inapplicable, then the "Fair Market Value" of the Stock shall be as
determined in good faith by the Committee.
2.12 "Highly Compensated Employee" has the same meaning as the term is
used in Section 414(q) of the Code.
2.13 "Offering Periods" means the period of approximately three (3)
months during which an option shall be granted and may be exercised
pursuant to the Plan, commencing on the first Trading Day on or after
January 1st, April 1st, July 1st and October 1st of each year and
terminating on the last Trading Day in the periods ending 3 months later
from each beginning date; provided, however, that the first Offering Period
under the Plan shall commence on the first Trading Day of the first January
1st, April 1st, July 1st or October 1st which occurs after the closing of
an initial public offering of the Company and shall end on the first
Trading Day on or after three months after such
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commencement date. The duration and timing of Offering Periods may be
changed pursuant to Section 4 of this Plan.
2.14 "Plan" means this 2005 Employee Stock Purchase Plan.
2.15 "Purchase Price" means 85% of the Fair Market Value of a share of
Common Stock on the Enrollment Date or on the Exercise Date of the current
Offering Period, whichever is lower; provided however, that the Purchase
Price may be adjusted by the Board pursuant to Section 20.
2.16 "Reserves" means the number of shares of Common Stock covered by
each option under the Plan that have not yet been exercised and the number
of shares of Common Stock that have been authorized for issuance under the
Plan but not yet placed under option.
2.17 "Subsidiary" has the meaning set forth for "subsidiary
corporation" in Section 424(f) of the Code, whereby a Subsidiary means any
corporation (other than the employer corporation) in an unbroken chain of
corporations beginning with the employer corporation if, at the time of the
granting of the option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50 percent or more
of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
2.18 "Trading Day" means a day on which national stock exchanges and
the NASDAQ System are open for trading.
Section 3. Eligibility.
3.1 Any Employee who shall be employed by the Company on a given
Enrollment Date shall be eligible to participate in the Plan.
3.2 Notwithstanding any provision of the Plan to the contrary, no
Employee shall be granted an option under the Plan: (i) to the extent that,
immediately after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to section 424(d) of the
Code) would own stock of the Company and/or hold outstanding options to
purchase such stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of the stock of the Company
or of any Subsidiary; or (ii) to the extent that his or her rights to
purchase stock under all employee stock purchase plans of the Company and
its Subsidiaries accrues at a rate which exceeds Twenty-Five Thousand
Dollars ($25,000) of fair market value of such stock (determined at the
time such option is granted) for each calendar year in which such option is
outstanding at any time.
Section 4. Offering Periods. The Plan shall be implemented by consecutive
Offering Periods with a new Offering Period commencing and ending as set forth
in Section 2.13, or on such other date as the Board shall determine, and
continuing thereafter until terminated in accordance with Section 20 hereof;
provided, however, that the first Offering Period under the Plan shall commence
pursuant to Section 2.13. The Board shall have the power to change the
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duration of Offering Periods (including the commencement dates thereof) with
respect to future offerings without shareholder approval if such change is
announced at least five (5) days prior to the scheduled beginning of the first
Offering Period to be affected thereafter.
Section 5. Participation.
5.1 An eligible Employee may become a participant in the Plan by
completing a Subscription Agreement authorizing payroll deductions in the
form of Exhibit A to this Plan and filing it with the Company's payroll
office prior to the applicable Enrollment Date.
5.2 Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date after the Company receives the
participant's Subscription Agreement and shall end on the last payroll in
the Offering Period to which such Subscription Agreement is applicable,
unless sooner terminated by the participant as provided in Section 10
hereof.
Section 6. Payroll Deductions.
6.1 At the time a participant files his or her Subscription Agreement,
he or she shall elect to have payroll deductions made on each payday during
the Offering Period in an amount not exceeding fifteen (15%) of the
Compensation that he or she receives on each payday during the Offering
Period.
6.2 All payroll deductions made for a participant shall be credited to
his or her account under the Plan and shall be withheld in whole
percentages only. A participant may not make any additional payments into
such account.
6.3 A participant may discontinue his or her participation in the Plan
as provided in Section 10 hereof, or may increase or decrease the rate of
his or her payroll deductions during the Offering Period by completing or
filing with the Company a new Subscription Agreement authorizing a change
in payroll deduction rate. The Board may, in its discretion, limit the
number of participation rate changes during any Offering Period. The change
in rate shall be effective with the first full payroll period following
five (5) business days after the Company's receipt of the new Subscription
Agreement unless the Company elects to process a given change in
participation more quickly. A participant's Subscription Agreement shall
remain in effect for successive Offering Periods unless terminated as
provided in Section 10 hereof.
6.4 Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3.2 hereof, a participant's
payroll deductions may be decreased to zero percent (0%) at any time during
an Offering Period. Payroll deductions shall recommence at the rate
provided in such participant's Subscription Agreement at the beginning of
the first Offering Period which is scheduled to end in the following
calendar year, unless terminated by the participant as provided in Section
10 hereof.
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6.5 At the time the option is exercised, in whole or in part, or at
the time some or all of the Company's Common Stock issued under the Plan is
disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise
upon the exercise of the option or the disposition of the Common Stock. At
any time, the Company may, but shall not be obligated to, withhold from the
participant's Compensation the amount necessary for the Company to meet
applicable withholding obligations, including any withholding required to
make available to the Company any tax deductions or benefits attributable
to sale or early disposition of Common Stock by the Employee.
Section 7. Grant of Option. On the Enrollment Date of each Offering Period,
each eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the applicable Purchase Price; provided that such purchase
shall be subject to the limitations set forth in Sections 3.2 and 13 hereof.
Exercise of the option shall occur as provided in Section 8 hereof, unless the
participant has withdrawn pursuant to Section 10 hereof. The option shall expire
on the last day of the Offering Period.
Section 8. Exercise of Option.
8.1 Unless a participant withdraws from the Plan as provided in
Section 10 hereof, his or her option for the purchase of shares shall be
exercised automatically on the Exercise Date, and the maximum number of
full shares subject to option shall be purchased for such participant at
the applicable Purchase Price with the accumulated payroll deductions in
his or her account. No fractional shares shall be purchased; any payroll
deductions accumulated in a participant's account which are not sufficient
to purchase a full share shall be retained in the participant's account for
the subsequent Offering Period, subject to earlier withdrawal by the
participant as provided in Section 10 hereof. Any other monies left over in
a participant's account after the Exercise Date shall be returned to the
participant. During a participant's lifetime, a participant's option to
purchase shares hereunder is exercisable only by him or her.
8.2 If the Board determines that, on a given Exercise Date, the number
of shares with respect to which options are to be exercised may exceed: (i)
the number of shares of Common Stock that were available for sale under the
Plan on the Enrollment Date of the applicable Offering Period; or (ii) the
number of shares available for sale under the Plan on such Exercise Date,
the Board may in its sole discretion: (x) provide that the Company shall
make a pro rata allocation of the shares of Common Stock available for
purchase on such Enrollment Date or Exercise Date, as applicable, in as
uniform a manner as shall be practicable and as it shall determine in its
sole discretion to be equitable among all participants exercising options
to purchase Common Stock on such Exercise Date, and continue all Offering
Periods then in effect; or (y) provide that the Company shall make a pro
rata allocation of the shares available for purchase on such Enrollment
Date or Exercise Date, as applicable, in as uniform a manner as shall be
practicable and as it shall determine in its sole discretion to be
equitable among all
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participants exercising options to purchase Common Stock on such Exercise
Date, and terminate any or all Offering Periods then in effect pursuant to
Section 20 hereof. The Company may make pro rata allocation of the shares
available on the Enrollment Date of any applicable Offering Period pursuant
to the preceding sentence, notwithstanding any authorization of additional
shares for issuance under the Plan by the Company's shareholders subsequent
to such Enrollment Date.
Section 9. Delivery. As promptly as practicable after each Exercise Date on
which a purchase of shares occurs, the Company shall arrange the delivery to
each participant, as appropriate, of a certificate representing the shares
purchased upon exercise of his or her option.
Section 10. Withdrawal.
10.1 A participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his
or her option under the Plan at any time by giving written notice to the
Company in the form of Exhibit B to this Plan. All of the participant's
payroll deductions credited to his or her account shall be paid to such
participant promptly after receipt of notice of withdrawal and such
participant's option for the Offering Period shall be automatically
terminated, and no further payroll deductions for the purchase of shares
shall be made for such Offering Period. If a participant withdraws from an
Offering Period, payroll deductions shall not resume at the beginning of
the succeeding Offering Period unless the participant delivers to the
Company a new Subscription Agreement.
10.2 A participant's withdrawal from an Offering Period shall not have
any effect upon his or her eligibility to participate in any similar plan
which may hereafter be adopted by the Company or in succeeding Offering
Periods which commence after the termination of the Offering Period from
which the participant withdraws.
Section 11. Termination of Employment. Upon a participant's ceasing to be
an Employee, for any reason, he or she shall be deemed to have elected to
withdraw from the Plan and the payroll deductions credited to such participant's
account during the Offering Period but not yet used to exercise the option shall
be returned to such participant or, in the case of his or her death, to the
person or persons entitled thereto under Section 15 hereof, and such
participant's option shall be automatically terminated. The preceding sentence
notwithstanding, a participant who receives payment in lieu of notice of
termination of employment shall be treated as continuing to be an Employee for
the participant's customary number of hours per week of employment during the
period in which the participant is subject to such payment in lieu of notice.
Section 12. Interest. No interest shall accrue on the payroll deductions of
a participant in the Plan.
Section 13. Stock.
13.1 Subject to adjustment upon changes in capitalization of the
Company as provided in Section 19 hereof, the maximum number of shares of
the Company's
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Common Stock which shall be made available for sale under the Plan shall be
two hundred thousand (200,000) shares.
13.2 The participant shall have no interest or voting right in shares
covered by his option until such option has been exercised.
13.3 Shares to be delivered to a participant under the Plan shall be
registered in the name of the participant or in the name of the participant
and his or her spouse jointly with the right or survivorship.
Section 14. Administration. The Board or the Committee, as determined in
the sole discretion of the Board, shall administer the Plan. The Board or the
Committee shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding, decision and
determination made by the Board or the Committee shall, to the full extent
permitted by law, be final and binding upon all parties.
Section 15. Designation of Beneficiary.
15.1 A participant, in its Subscription Agreement, may designate a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's
death subsequent to an Exercise Date on which the option is exercised but
prior to delivery to such participant of such shares and cash. In addition,
a participant may file a written designation of a beneficiary who is to
receive any cash from the participant's account under the Plan in the event
of such participant's death prior to exercise of the option. If a
participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
15.2 Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant
and in the absence of a beneficiary validly designated under the Plan who
is living at the time of such participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the
estate of the participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company), the Company, in its
discretion, may deliver such shares and/or cash to the spouse or to any one
or more dependents or relatives of the participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as
the Company may designate.
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Section 16. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 15 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from an Offering Period in accordance with Section 10 hereof.
Section 17. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
Section 18. Reports. Individual accounts shall be maintained for each
participant in the Plan. Statements of account shall be given to participating
Employees at least annually, which statements shall set forth the amounts of
payroll deductions, the Purchase Price, the number of shares purchased and the
remaining cash balance, if any.
Section 19. Adjustments Upon Changes in Capitalization, Dissolution,
Liquidation, Merger or Asset Sale.
19.1 Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the Reserves, the maximum number of shares
each participant may purchase each Purchase Period (pursuant to Section 7),
as well as the price per share and the number of shares of Common Stock
covered by each option under the Plan which has not yet been exercised
shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to
an option.
19.2 Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Offering Period then in
progress shall be shortened by setting a new Exercise Date (the "New
Exercise Date"), and shall terminate immediately prior to the consummation
of such proposed dissolution or liquidation, unless provided otherwise by
the Board. The New Exercise Date shall be before the date of the Company's
proposed dissolution or liquidation. The Board shall notify each
participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for the participant's option has been
changed to the New Exercise Date and that the participant's option shall be
exercised automatically on the New Exercise Date, unless
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prior to such date the participant has withdrawn from the Offering Period
as provided in Section 10 hereof.
19.3 Merger or Asset Sale. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each outstanding option shall be
assumed or an equivalent option substituted by the successor corporation or
a Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the option, any
Offering Periods then in progress shall be shortened by setting a new
Exercise Date (the "New Exercise Date") upon which the Offering Period then
in progress shall end. The New Exercise Date shall be before the date of
the Company's proposed sale or merger. The Board shall notify each
participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for the participant's option has been
changed to the New Exercise Date and that the participant's option shall be
exercised automatically on the New Exercise Date, unless prior to such date
the participant has withdrawn from the Offering Period as provided in
Section 10 hereof.
Section 20. Amendment or Termination.
20.1 The Board of Directors of the Company may at any time and for any
reason terminate or amend the Plan. Except as provided in Section 19
hereof, no such termination can affect options previously granted, provided
that an Offering Period may be terminated by the Board of Directors on any
Exercise Date if the Board determines that the termination of the Offering
Period or the Plan is in the best interests of the Company and its
shareholders. Except as provided in Section 19 and this Section 20 hereof,
no amendment may make any change in any option theretofore granted which
adversely affects the rights of any participant. To the extent necessary to
comply with Section 423 of the Code (or any successor rule or provision or
any other applicable law, regulation or stock exchange rule), the Company
shall obtain shareholder approval in such a manner and to such a degree as
required.
20.2 Without shareholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its Committee) shall be entitled to change the Offering Periods,
limit the frequency and/or number of changes in the amount withheld during
an Offering Period, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, permit payroll withholding
in excess of the amount designated by a participant in order to adjust for
delays or mistakes in the Company's processing of properly completed
withholding elections, establish reasonable waiting and adjustment periods
and/or accounting and crediting procedures to ensure that amounts applied
toward the purchase of Common Stock for each participant properly
correspond with amounts withheld from the participant's Compensation, and
establish such other limitations or procedures as the Board (or its
Committee) determines in its sole discretion advisable which are consistent
with the Plan.
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20.3 In the event the Board determines that the ongoing operation of
the Plan may result in unfavorable financial accounting consequences, the
Board may, in its discretion and, to the extent necessary or desirable,
modify or amend the Plan to reduce or eliminate such accounting consequence
including, but not limited to:
20.3.1 altering the Purchase Price for any Offering Period
including an Offering Period underway at the time of the change in
Purchase Price;
20.3.2 shortening any Offering Period so that Offering Period
ends on a new Exercise Date, including an Offering Period underway at
the time of the Board action; and
20.3.3 allocating shares.
Such modifications or amendments shall not require stockholder approval or
the consent of any Plan participants.
Section 21. Conditions Upon Issuance of Shares. Shares shall not be issued
with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
Section 22. Term of Plan. The Plan shall become effective upon the earlier
to occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 20 hereof.
Section 23. Notices. All notices or other communications by a participant
to the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
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EXHIBIT A
BIOMIMETIC THERAPEUTICS, INC.
2005 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
Original Application Enrollment Date: ______________
__________ Change in Payroll Deduction Rate
__________ Change of Beneficiary(ies)
1. I hereby elect to participate in the BioMimetic Therapeutics, Inc. 2005
Employee Stock Purchase Plan (the "Employee Stock Purchase Plan") and subscribe
to purchase shares of the Company's Common Stock in accordance with this
Subscription Agreement and the Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount
of ____% of my Compensation on each payday (FROM 1 TO _____%) during the
Offering Period in accordance with the Employee Stock Purchase Plan. (Please
note that no fractional percentages are permitted.)
3. I understand that these payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price determined
in accordance with the Employee Stock Purchase Plan. I understand that if I do
not withdraw from an Offering Period, any accumulated payroll deductions will be
used to automatically exercise my option.
4. I have received a copy of the complete Employee Stock Purchase Plan. I
understand that my participation in the Employee Stock Purchase Plan is in all
respects subject to the terms of the Plan. I understand that my ability to
exercise the option under this Subscription Agreement is subject to shareholder
approval of the Employee Stock Purchase Plan.
5. Shares purchased for me under the Employee Stock Purchase Plan should be
issued in the name(s) of (Employee or Employee and Spouse
only):_______________________.
6. I understand that if I dispose of any shares received by me pursuant to
the Plan within 2 years after the Enrollment Date (the first day of the Offering
Period during which I purchased such shares) or one year after the Exercise
Date, I will be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount equal to the excess
of the amount I received in such disposition over the price which I paid for the
shares. I hereby agree to notify the Company in writing within 30 days after the
date of any disposition of my shares and I will make adequate provision for
Federal, state or other tax withholding obligations, if any, which arise upon
the disposition of the Common Stock. The Company may, but will not be obligated
to, withhold from my compensation the amount necessary to meet any applicable
withholding obligation including any withholding necessary to
make available to the Company any tax deductions or benefits attributable to
sale or early disposition of Common Stock by me. If I dispose of such shares at
any time after the expiration of the 2-year and 1-year holding periods, I
understand that I will be treated for federal income tax purposes as having
received income only at the time of such disposition, and that such income will
be taxed as ordinary income only to the extent of an amount equal to the lesser
of: (l) the excess of the fair market value of the shares at the time of such
disposition over the purchase price which I paid for the shares; or (2) the
excess of the fair market value of the shares at the time the Enrollment Date
(the first day of the Offering Period during which I purchased such shares) over
the purchase price which I paid for the shares. The remainder of the gain, if
any, recognized on such disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Employee Stock Purchase
Plan. The effectiveness of this Subscription Agreement is dependent upon my
eligibility to participate in the Employee Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the Employee
Stock Purchase Plan:
NAME: (Please print)
_____________________________
(First) (Middle) (Last)
Relationship _______________________________
(Address)
_________________________________
_________________________________
_________________________________
Employee's Social Security Number: _______________________________
Employee's Address:
_________________________________
_________________________________
_________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated: ________________ ----------------------------------
Signature of Employee
Dated: ________________ ----------------------------------
Spouse's Signature (If beneficiary
is other than spouse)
2
EXHIBIT B
BIOMIMETIC THERAPEUTICS, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the BioMimetic
Therapeutics, Inc. 2005 Employee Stock Purchase Plan which began on __________,
200__ (the "Enrollment Date") hereby notifies the Company that he or she hereby
withdraws from the Offering Period. He or she hereby directs the Company to pay
to the undersigned as promptly as practicable all the payroll deductions
credited to his or her account with respect to such Offering Period. The
undersigned understands and agrees that his or her option for such Offering
Period will be automatically terminated. The undersigned understands further
that no further payroll deductions will be made for the purchase of shares in
the current Offering Period and the undersigned shall be eligible to participate
in succeeding Offering Periods only by delivering to the Company a new
Subscription Agreement.
Name and Address of Participant: _______________________________
_______________________________
_______________________________
Signature:
------------------------------
Date:
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