Exhibit 10.28


 


RESTRICTED
STOCK AGREEMENT


 


BIOHORIZONS,
INC.


 


AGREEMENT made as of July 28,
2009 (the “Grant Date”), between BioHorizons, Inc. (the “Company”),
a Delaware corporation, and Thomas Davis (the
“Participant”).


 


WHEREAS, the Company has adopted the BioHorizons, Inc.
(formerly known as HealthpointCapital Dental Holdings, Inc.) 2007
Executive, Director and Consultant Stock Plan (the “Plan”) to promote the
interests of the Company by providing an incentive for employees, directors and
consultants of the Company or its Affiliates;


 


WHEREAS, pursuant to the provisions of the Plan, the
Company desires to offer to the Participant shares of the Company’s Class B
Common Stock, $0.0001 par value per share (“Common Stock”), in accordance with
the provisions of the Plan, all on the terms and conditions hereinafter set
forth;


 


WHEREAS, Participant wishes to accept said offer; and


 


WHEREAS, the parties hereto understand and agree that
any terms used and not defined herein have the meanings ascribed to such terms
in the Plan and that any and all references herein to employment of the
Participant by the Company shall include the Participant’s employment or
service as an employee, director or consultant of the Company or any Affiliate.


 


NOW, THEREFORE, in consideration of the promises and
the mutual covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


1.             Terms of Grant. The Participant hereby accepts the
offer of the Company to issue to the Participant, in accordance with the terms
of the Plan and this Agreement, 5,000 Shares
of the Company’s Common Stock (such shares, subject to adjustment pursuant to Section 24
of the Plan, the “Granted Shares”) at a purchase price per share of $0.001 (the “Purchase Price”), receipt of which is hereby
acknowledged by the Company. The Participant hereby agrees to become a party to
the Stockholders’ Agreement dated August 21, 2006 between the Company and
its stockholders (the “Stockholders’ Agreement”), and Participant agrees to
execute any certificates or other documentation that the Company reasonably
deems appropriate in order for the Participant to become a party to the
Stockholders’ Agreement. In addition to the restrictions expressly set forth in
this Agreement, the Granted Shares hereby shall not be transferred by the
Participant except as permitted in the Stockholders’ Agreement.


 


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2.             General Restrictions on Transfer of
Granted Shares.


 


(a)           Limitations on Transfer. The Granted Shares acquired by the
Participant hereunder Granted Shares shall not be transferred by the
Participant except as permitted herein, and shall be subject to the repurchase
rights described herein.


 


(b)           Right to Repurchase following Termination
of Service. If
the Participant’s service as an employee, director or consultant with the
Company or an Affiliate shall be terminated for any reason other than for “cause”
(as defined in the Plan), including due to death or Disability, then the
Company shall have the option to repurchase the Granted Shares, as follows:


 


(i)            The Company’s option to repurchase the Granted Shares
in the event of termination of service under this Section 2.(b) shall
be valid for a period of one year commencing with the date of such termination
of service.


 


(ii)           In the event the Company shall be entitled to and
shall elect to exercise its option to repurchase the Granted Shares under this Section 2.
(b), the Company shall notify the Participant, or in case of death, his or her
Survivor, in writing of its intent to repurchase the Granted Shares. Such
written notice may be mailed by the Company up to and including the last day of
the time period provided for in Section 2.(b)(i) for exercise of the
Company’s option to repurchase.


 


(iii)          The written notice to the Participant shall specify
the address at, and the time and date on, which payment of the Repurchase Price
(as defined herein) is to be made (the “Closing”). The date specified shall not
be less than ten days nor more than 60 days from the date of the mailing of the
notice, and the Participant or the Participant’s Survivor with respect to the
Granted Shares shall have no further rights as the owner thereof from and after
the date specified in the notice. At the Closing, the Repurchase Price shall be
delivered to the Participant or the Participant’s Survivor and the Granted
Shares being purchased, duly endorsed for transfer, shall, to the extent that
they are not then in the possession of the Company, be delivered to the Company
by the Participant or the Participant’s Survivor.


 


(iv)          The price paid per share for any Granted Shares
repurchased hereunder (the “Repurchase Price”) shall equal the Fair Market
Value of such Granted Shares determined in accordance with the Plan as of the
date of termination of service, provided, however, in the event of a
termination by the Company or an Affiliate for “cause” (as defined in the
Plan), the per share repurchase price of the Shares to be sold to the Company
upon exercise of its option under this Section 2. shall be equal to the
Purchase Price.


 


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(c)           Right to Repurchase on Proposed Transfer. It shall be a condition precedent to the
validity of any sale or other transfer of any Granted Shares by the Participant
that the following restrictions be complied with (except as hereinafter
otherwise provided):


 


(i)            No Granted Shares owned by the Participant may be
sold, pledged or otherwise transferred (including by gift or devise) to any
person or entity, voluntarily, or by operation of law, except in accordance
with the terms and conditions hereinafter set forth.


 


(ii)           Before selling or otherwise transferring all or part
of the Granted Shares, the Participant shall give written notice of such
intention to the Company which notice shall include the name of the proposed
transferee, the proposed purchase price per share, the terms of payment of such
purchase price and all other matters relating to such sale or transfer and
shall be accompanied by a copy of the binding written agreement of the proposed
transferee to purchase the Granted Shares of the Participant. Such notice shall
constitute a binding offer by the Participant to sell to the Company such
number of the Granted Shares then held by the Participant as are proposed to be
sold in the notice at the monetary price per share designated in such notice,
payable on the terms offered to the Participant by the proposed transferee
(provided, however, that the Company shall not be required to meet any
non-monetary terms of the proposed transfer, including, without limitation,
delivery of other securities in exchange for the Granted Shares proposed to be
sold). The Company shall give written notice to the Participant as to whether
such offer has been accepted in whole by the Company within 60 days after its
receipt of written notice from the Participant. The Company may only accept
such offer in whole and may not accept such offer in part. Such acceptance
notice shall fix a time, location and date for the closing on such purchase (“Closing
Date”) which shall not be less than ten nor more than sixty days after the
giving of the acceptance notice, provided, however, if any of the Shares to be
sold pursuant to this Section 2.(c) have been held by the Participant
for less than six months, then the Closing Date may be extended by the Company
until no more than ten days after such Shares have been held by the Participant
for six months. At the Closing, the Participant shall accept payment as set
forth herein and shall deliver to the Company in exchange therefor the Granted
Shares being repurchased, duly endorsed for transfer, to the extent that they
are not then in the possession of the Company.


 


(iii)          If the Company shall fail to accept any such offer,
the Participant shall be free to sell all, but not less than all, of the
Granted Shares set forth in his notice to the designated transferee at the
price and terms designated in the Participant’s notice, provided that (i) such
sale is consummated within six months after the giving of notice by the
Participant to the Company as aforesaid, and (ii) the transferee first
agrees in writing to be bound by the provisions of this Section 2.(c) so
that he or she (and all subsequent transferees) shall thereafter only be
permitted to sell or transfer the Granted Shares in accordance with the terms
hereof. After the expiration of such six months, the provisions of this Section 2.(c) shall
again apply with respect to any proposed voluntary transfer of the Granted
Shares.


 


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(iv)          The provisions of this Section 2.(c) may be
waived by the Company. Any such waiver may be unconditional or based upon such
conditions as the Company may impose.


 


(v)           The restrictions on transfer contained in this Section 2.(c) shall
not apply to (a) transfers by the Participant to his or her spouse or
children or to a trust for the benefit of his or her spouse or children, (b) transfers
by the Participant to his or her guardian or conservator, and (c) or
transfers by the Participant, in the event of his or her death, to his or her
executor(s) or administrator(s) or to trustee(s) under his or
her will (collectively, “Permitted Transferees”); provided however, that in any
such event the Granted Shares so transferred in the hands of each such
Permitted Transferee shall remain subject to this Agreement, and each such
Permitted Transferee shall so acknowledge in writing as a condition precedent
to the effectiveness of such transfer.


 


(d)           The provisions of Section 2.(a) through
(d) shall terminate upon the effective date of the registration of the
Shares pursuant to the Securities Exchange Act of 1934.


 


(e)           The Participant agrees that in the event
the Company proposes to offer for sale to the public any of its equity
securities and such Participant is requested by the Company and any underwriter
engaged by the Company in connection with such offering to sign an agreement
restricting the sale or other transfer of Shares, then it will promptly sign
such agreement and will not transfer, whether in privately negotiated
transactions or to the public in open market transactions or otherwise, any
Shares or other securities of the Company held by him or her during such period
as is determined by the Company and the underwriters, not to exceed 90 days
following the closing of the offering, plus such additional period of time as
may be required to comply with Marketplace Rule 2711 of the National
Association of Securities Dealers, Inc. or similar rules thereto
(such period, the “Lock-Up Period”). Such agreement shall be in writing and in form
and substance reasonably satisfactory to the Company and such underwriter and
pursuant to customary and prevailing terms and conditions. Notwithstanding
whether the Participant has signed such an agreement, the Company may impose
stop-transfer instructions with respect to the Shares or other securities of
the Company subject to the foregoing restrictions until the end of the Lock-Up
Period.


 


(f)            The Participant acknowledges and agrees
that neither the Company nor, its shareholders nor its directors and officers,
has any duty or obligation to disclose to the Participant any material
information regarding the business of the Company or affecting the value of the
Shares before, at the time of, or following a termination of the employment of
the Participant by the Company or an Affiliate, including, without limitation,
any information concerning plans for the Company to make a public offering of
its securities or to be acquired by or merged with or into another firm or
entity.


 


3.             Legend. In addition to any legend required pursuant to the
Plan, all certificates representing the Granted Shares to be issued to the
Participant pursuant to this Agreement shall have endorsed thereon a legend
substantially as follows:


 


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“The shares represented by this certificate are
subject to restrictions set forth in a Restricted Stock Agreement dated as of July 28, 2009 with this Company, a
copy of which Agreement is available for inspection at the offices of the
Company or will be made available upon request.”


 


4.             Purchase for Investment; Securities Law
Compliance. If
the offering and sale of the Granted Shares have not been effectively
registered under the 1933 Act, the Participant hereby represents and warrants
that he or she is acquiring the Granted Shares for his or her own account, for
investment, and not with a view to, or for sale in connection with, the
distribution of any such Granted Shares. The Participant specifically
acknowledges and agrees that any sales of Granted Shares shall be made in
accordance with the requirements of the 1933 Act, in a transaction as to which
the Company shall have received an opinion of counsel satisfactory to it
confirming such compliance. The Participant shall be bound by the provisions of
the following legend which shall be endorsed upon the certificate(s) evidencing
the Shares issued:


 


“The shares represented by this certificate have been
taken for investment and they may not be sold or otherwise transferred by any
person, including a pledgee, unless (1) either (a) a Registration
Statement with respect to such shares shall be effective under the Securities
Act of 1933, as amended, or (b) the Company shall have received an opinion
of counsel satisfactory to it that an exemption from registration under such
Act is then available, and (2) there shall have been compliance with all
applicable state securities laws.”


 


5.             Rights as a Stockholder. The Participant shall have all the
rights of a stockholder with respect to the Granted Shares, including voting
and dividend rights, subject to the transfer and other restrictions set forth
herein and in the Plan.


 


6.             Incorporation of the Plan. The Participant specifically
understands and agrees that the Granted Shares issued under the Plan are being
sold to the Participant pursuant to the Plan, a copy of which Plan the
Participant acknowledges he or she has read and understands and by which Plan
he or she agrees to be bound. The provisions of the Plan are incorporated
herein by reference.


 


7.             Tax Liability of the Participant and
Payment of Taxes.
The Participant acknowledges and agrees that any income or other taxes due from
the Participant with respect to the Granted Shares issued pursuant to this
Agreement shall be the Participant’s responsibility and that the Company shall
be entitled to immediate payment from the Participant of the amount of any tax
required to be withheld by the Company.


 


8.             Equitable Relief. The Participant specifically
acknowledges and agrees that in the event of a breach or threatened breach of
the provisions of this Agreement or the Plan, including the attempted transfer
of the Granted Shares by the Participant in violation of this Agreement,
monetary damages may not be adequate to compensate the Company, and, therefore,
in the event of such a breach or threatened breach, in addition to any right to
damages, the Company shall be entitled to equitable relief in any court having competent
jurisdiction. Nothing herein shall be


 


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construed
as prohibiting the Company from pursuing any other remedies available to it for
any such breach or threatened breach.


 


9.             No Obligation to Maintain Relationship. The Company is not by the Plan or this
Agreement obligated to continue the Participant as an employee, director or
consultant of the Company or an Affiliate. The Participant acknowledges: (i) that
the Plan is discretionary in nature and may be suspended or terminated by the
Company at any time; (ii) that the grant of the Shares is a one-time
benefit which does not create any contractual or other right to receive future
grants of shares, or benefits in lieu of shares; (iii) that all
determinations with respect to any such future grants, including, but not
limited to, the times when shares shall be granted, the number of shares to be
granted, the purchase price, and the time or times when each share shall be
free from a lapsing repurchase right, will be at the sole discretion of the
Company; (iv) that the Participant’s participation in the Plan is
voluntary; (v) that the value of the Shares is an extraordinary item of
compensation which is outside the scope of the Participant’s employment
contract, if any; and (vi) that the Shares are not part of normal or
expected compensation for purposes of calculating any severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments.


 


10.           Notices. Any notices required or permitted by the terms of
this Agreement or the Plan shall be given by recognized courier service,
facsimile, registered or certified mail, return receipt requested, addressed as
follows:


 


If to the Company:


 


BioHorizons, Inc.


2300 Riverchase Center


Birmingham, AL 35244


Attn: Kendyl D. Lowe, CFO


 


If to the Participant:


 


Thomas Davis


4318 Abbott Avenue


Dallas, Texas 75205


                                                                 


 


or
to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given on
the earliest of receipt, one business day following delivery by the sender to a
recognized courier service, or three business days following mailing by
registered or certified mail.


 


11.           Benefit of Agreement. Subject to the provisions of the Plan
and the other provisions hereof, this Agreement shall be for the benefit of and
shall be binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto.


 


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12.           Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the conflict of law principles thereof. For the purpose of litigating
any dispute that arises under this Agreement, whether at law or in equity, the
parties hereby consent to exclusive jurisdiction in New York and agree that
such litigation shall be conducted in the courts of New York County, New York
or the federal courts of the United States for the Southern District of New
York.


 


13.           Severability. If any provision of this Agreement is
held to be invalid or unenforceable by a court of competent jurisdiction, then
such provision or provisions shall be modified to the extent necessary to make
such provision valid and enforceable, and to the extent that this is
impossible, then such provision shall be deemed to be excised from this
Agreement, and the validity, legality and enforceability of the rest of this
Agreement shall not be affected thereby.


 


14.           Entire Agreement. This Agreement, together with the Plan,
constitutes the entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersedes all prior oral or
written agreements and understandings relating to the subject matter hereof. No
statement, representation, warranty, covenant or agreement not expressly set
forth in this Agreement shall affect or be used to interpret, change or
restrict the express terms and provisions of this Agreement provided, however,
in any event, this Agreement shall be subject to and governed by the Plan.


 


15.           Modifications and Amendments; Waivers and
Consents. The
terms and provisions of this Agreement may be modified or amended as provided
in the Plan. Except as provided in the Plan, the terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only
by written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent shall be deemed to be or shall
constitute a waiver or consent with respect to any other terms or provisions of
this Agreement, whether or not similar. Each such waiver or consent shall be effective
only in the specific instance and for the purpose for which it was given, and
shall not constitute a continuing waiver or consent.


 


16.           Consent of Spouse/Domestic Partner. If the Participant has a spouse or a domestic
partner as of the date of this Agreement, the Participant’s spouse or domestic
partner shall execute a Consent of Spouse/Domestic Partner in the form of Exhibit A
hereto, effective as of the date hereof. Such consent shall not be deemed to
confer or convey to the spouse or domestic partner any rights in the Granted
Shares that do not otherwise exist by operation of law or the agreement of the
parties. If the Participant subsequent to the date hereof, marries, remarries
or applies to the Company for domestic partner benefits, the Participant shall,
not later than 60 days thereafter, obtain his or her new spouse/domestic
partner’s acknowledgement of and consent to the existence and binding effect of
all restrictions contained in this Agreement by having such spouse/domestic
partner execute and deliver a Consent of Spouse/Domestic Partner in the form of
Exhibit A.


 


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17.           Counterparts. This Agreement may be executed in one
or more counterparts, and by different parties hereto on separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.


 


18.           Data Privacy. By entering into this Agreement, the
Participant: (i) authorizes the Company and each Affiliate, and any agent
of the Company or any Affiliate administering the Plan or providing Plan record
keeping services, to disclose to the Company or any of its Affiliates such
information and data as the Company or any such Affiliate shall request in
order to facilitate the grant of Shares and the administration of the Plan; (ii) waives
any data privacy rights he or she may have with respect to such information;
and (iii) authorizes the Company and each Affiliate to store and transmit
such information in electronic form.


 


[THE NEXT PAGE IS THE
SIGNATURE PAGE]


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.


 


	
   

  	
  BIOHORIZONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Steven Boggan

  
	
   

  	
  Name:

  	
  R. Steven Boggan

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Thomas Davis

  
	
   

  	
  Name:

  	
  Thomas Davis

  



 


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