Exhibit 10.20


 


RESTRICTED
STOCK AGREEMENT


 


HEALTHPOINTCAPITAL DENTAL
HOLDINGS, INC.


 


AGREEMENT made as of the 17th day of April, 2007 (the “Grant Date”), between
HealthpointCapital Dental Holdings, Inc. (the “Company”), a Delaware
corporation, and Kendyl Lowe, (the “Participant”).


 


WHEREAS, the Company has adopted the
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 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, 10,000
Shares of the Company’s Common Stock (such shares, subject to adjustment
pursuant to Section 24 of the Plan and Subsection 2.1(i) hereof, the “Granted
Shares”) at a purchase price per share of $0.001 (the “Purchase Price”),
receipt of which is hereby acknowledged by the Company by the Participant’s
prior service to the Company and which amount will be reported as income on the
Participant’s W-2 for this calendar year. 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.


 

















 


2.1.                            Company’s Lapsing Repurchase
Right.


 


(a)                                  Lapsing Repurchase Right. Except as set
forth in Subsections 2.1(b), 2.1(c) and 2.1(d) hereof, in the event
that for any reason the Participant is no longer an employee, director or
consultant of the Company or an Affiliate prior to the third anniversary of the
Date of Reference, the Company (or its designee) shall have the option, but not
the obligation, to purchase from the Participant (or the Participant’s
Survivor), and, in the event the Company exercises such option, the Participant
(or the Participant’s Survivor) shall be obligated to sell to the Company (or
its designee), at a price per Granted Share equal to the Purchase Price, all or
any part of the Granted Shares set forth in clauses (i) and (ii) below
(the “Lapsing Repurchase Right”). The Company’s Lapsing Repurchase Right shall
be valid for a period of one year commencing with the date of such termination
of employment or service. Notwithstanding any other provision hereof, in the
event the Company is prohibited during such one year period from exercising its
Lapsing Repurchase Right by Section 160 of the Delaware General
Corporation Law as amended from time to time (or any successor provision), then
the time period during which such Lapsing Repurchase Right may be exercised
shall be extended until 30 days after the Company is first not so prohibited.
For the purposes of this Agreement, “Date of Reference” shall be August 21,
2006.


 


(i)                                          If such
termination is prior to the first anniversary of the Date of Reference, the
Company shall have the option to repurchase all of the Granted Shares acquired
by the Participant hereunder.


 


(ii)                                       If such termination
is on or after the first anniversary of the Date of Reference, but prior to the
third anniversary of the Date of Reference, the Company shall have the option
to repurchase all of the Granted Shares less one-third of the Granted Shares
for each full 12 month period elapsed after the Date of Reference that the
Participant continues to serve as an employee, director or consultant of the
Company or an Affiliate.


 


(b)                                 Effect of Termination for
Disability or upon Death. The following rules apply if the
Participant ceases to be an employee, director or consultant of the Company or
an Affiliate by reason of Disability or death: to the extent the Company’s
Lapsing Repurchase Right has not lapsed as of the date of Disability or death,
as case may be, the Company may exercise such Lapsing Repurchase Right;
provided, however, that the Company’s Lapsing Repurchase Right shall be deemed
to have lapsed to the extent of a pro rata portion of the Granted Shares
through the date of Disability or death, as would have lapsed had the
Participant not become Disabled or died, as the case may be. The proration
shall be based upon the number of days accrued in such current vesting period
prior to the Participant’s date of Disability or death, as the case may be.


 


(c)                                  Effect of a For Cause
Termination. Notwithstanding anything to the contrary contained
in this Agreement, in the event the Company or an Affiliate terminates the
Participant’s employment or service for “cause” (as defined in the Plan) or in
the event the Administrator determines, within one year after the Participant’s
termination, that either prior or subsequent to the Participant’s termination
the Participant engaged in conduct that would constitute “cause,” all of the
Granted Shares then held by the Participant shall be forfeited to the


 


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Company immediately as of the time the Participant is notified that he
or she has been terminated for “cause” or that he or she engaged in conduct
which would constitute “cause”.


 


(d)                                 Effect of Change of Control. Except as
otherwise provided in Subsection 2.1(c) above, the Company’s Lapsing
Repurchase Right shall terminate, and the Participant’s ownership of all
Granted Shares then owned by the Participant shall become vested in accordance
with the terms and conditions set forth in Section 24 of the Plan.


 


(e)                                  Closing. In the event
that the Company exercises the Lapsing Repurchase Right, the Company shall
notify the Participant, or, in the case of the Participant’s death, his or her
Survivor, in writing of its intent to repurchase the Granted Shares. Such
notice may be mailed by the Company up to and including the last day of the
time period provided for above for exercise of the Lapsing Repurchase Right.
The notice shall specify the place, time and date for payment of the repurchase
price (the “Closing”) and the number of Granted Shares with respect to which
the Company is exercising the Lapsing Repurchase Right. The Closing shall be
not less than ten days nor more than 60 days from the date of mailing of the
notice, and the Participant or the Participant’s Survivor with respect to the
Granted Shares which the Company elects to repurchase 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 repurchased, 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.


 


(f)                                    Escrow. The
certificates representing all Granted Shares acquired by the Participant
hereunder which from time to time are subject to the Lapsing Repurchase Right
shall be delivered to the Company and the Company shall hold such Granted
Shares in escrow as provided in this Subsection 2.1(f). The Company shall
promptly release from escrow and deliver to the Participant a certificate for
the whole number of Granted Shares, if any, as to which the Company’s Lapsing
Repurchase Right has lapsed as the Participant’s ownership of such Granted
Shares becomes vested from time to time. In the event of a repurchase by the
Company of Granted Shares subject to the Lapsing Repurchase Right, the Company
shall release from escrow and cancel a certificate for the number of Granted
Shares so repurchased. Any securities distributed in respect of the Granted
Shares held in escrow, including, without limitation, shares issued as a result
of stock splits, stock dividends or other recapitalizations, shall also be held
in escrow in the same manner as the Granted Shares.


 


(g)                                 Prohibition on Transfer. The
Participant recognizes and agrees that all Granted Shares which are subject to
the Lapsing Repurchase Right may not be sold, transferred, assigned,
hypothecated, pledged, encumbered or otherwise disposed of, whether voluntarily
or by operation of law, other than to the Company (or its designee). However,
the Participant, with the approval of the Administrator, may transfer the
Granted Shares for no consideration to or for the benefit of the Participant’s
Immediate Family (including, without limitation, to a trust for the benefit of
the Participant’s Immediate Family or to a partnership or limited liability
company for one or more members of the Participant’s Immediate Family), subject
to such limits as the Administrator may establish, and the transferee shall
remain subject to all the terms and conditions applicable to this Agreement
prior to such transfer and each such transferee shall so


 


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acknowledge in writing as a condition precedent to the effectiveness of
such transfer. The term “Immediate Family” shall mean the Participant’s spouse,
former spouse, parents, children, stepchildren, adoptive relationships,
sisters, brothers, nieces and nephews and grandchildren (and, for this purpose,
shall also include the Participant. The Company shall not be required to
transfer any Granted Shares on its books which shall have been sold, assigned
or otherwise transferred in violation of this Subsection 2.1(g), or to treat as
the owner of such Granted Shares, or to accord the right to vote as such owner
or to pay dividends to, any person or organization to which any such Granted
Shares shall have been so sold, assigned or otherwise transferred, in violation
of this Subsection 2.1(g).


 


(h)                                 Failure to Deliver Granted
Shares to be Repurchased. In the event that the Granted Shares to be
repurchased by the Company under this Agreement are not in the Company’s
possession pursuant to Subsection 2.1(f) above or otherwise and the
Participant or the Participant’s Survivor fails to deliver such Granted Shares
to the Company (or its designee), the Company may elect (i) to establish a
segregated account in the amount of the repurchase price, such account to be
turned over to the Participant or the Participant’s Survivor upon delivery of
such Granted Shares, and (ii) immediately to take such action as is
appropriate to transfer record title of such Granted Shares from the
Participant to the Company (or its designee) and to treat the Participant and
such Granted Shares in all respects as if delivery of such Granted Shares had
been made as required by this Agreement. The Participant hereby irrevocably
grants the Company a power of attorney which shall be coupled with an interest
for the purpose of effectuating the preceding sentence.


 


(i)                                     Adjustments. The Plan
contains provisions covering the treatment of Shares in a number of contingencies
such as stock splits and mergers. Provisions in the Plan for adjustment with
respect to the Granted Shares and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.


 


2.2                                 General Restrictions on
Transfer of Granted Shares.


 


(a)                                  Limitations on Transfer. In addition
to the restrictions set forth above in Section 2.1, the Granted Shares
acquired by the Participant hereunder and no longer subject to the provisions
of Section 2.1 herein (the “Vested Shares”) shall not be transferred by
the Participant except as permitted herein, shall be subject to the provisions
of Sections 2.1 (f), (g) and (h) above 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 Vested Shares not previously repurchased in accordance
with the provisions of Section 2.1 of this Agreement as follows:


 


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(i)                                     The Company’s
option to repurchase the Vested Shares in the event of termination of service
under this Section 2.2(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 Vested Shares under this Section 2.2(b), the Company shall
notify the Participant, or in case of death, his or her Survivor, in writing of
its intent to repurchase the Vested 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 2.2(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 Vested 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 Vested 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 Vested Shares repurchased hereunder (the “Repurchase Price”)
shall equal the Fair Market Value of such Vested 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 2.2
shall be equal to the Purchase Price.


 


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


 


(i)                                     No Vested
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 Vested 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


 


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proposed transferee to purchase the Vested Shares of
the Participant. Such notice shall constitute a binding offer by the
Participant to sell to the Company such number of the Vested 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
Vested 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 2.2(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 Vested 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 2.2(c) so
that he or she (and all subsequent transferees) shall thereafter only be
permitted to sell or transfer the Vested Shares in accordance with the terms
hereof. After the expiration of such six months, the provisions of this Section 2.2(c) shall
again apply with respect to any proposed voluntary transfer of the Vested
Shares.


 


(iv)                              The provisions
of this Section 2.2(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 2.2(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 Vested 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.


 


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(d)                                 The provisions of Section 2.2
(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:


 


“The shares represented by this certificate are
subject to restrictions set forth in a Restricted Stock Agreement dated as of April 17,
2007 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:


 


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“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,
including, without limitation, the Lapsing Repurchase Right, shall be the
Participant’s responsibility. Without limiting the foregoing, the Participant
agrees that, to the extent that the lapsing of restrictions on disposition of
any of the Granted Shares or the declaration of dividends on any such shares
before the lapse of such restrictions on disposition results in the Participant’s
being deemed to be in receipt of earned income under the provisions of the
Code, the Company shall be entitled to immediate payment from the Participant
of the amount of any tax required to be withheld by the Company.


 


Upon execution of this Agreement, the Participant
may file an election under Section 83 of the Code in substantially the
form attached as Exhibit B. The Participant acknowledges that if he
does not file such an election, as the Granted Shares are released from the
Lapsing Repurchase Right in accordance with Section 2.1, the Participant
will have income for tax purposes equal to the fair market value of the Granted
Shares at such date, less the price paid for the Granted Shares by the
Participant.


 


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 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


 


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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:


 


HealthpointCapital Dental Holdings, Inc.


One Perimeter Park South, Suite 230S


Birmingham, AL 35243


 


If to the Participant:


 


Kendyl Lowe 


1116 Glen View Road 


Birmingham, AL 35222


 


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.


 


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.


 


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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.


 


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.


 


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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]


 


11

















 


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


 




	
   

  	
   

  	
  HealthpointCapital Dental Holdings, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ R. Steven Boggan

  
	
   

  	
   

  	
  Name: R. Steven Boggan

  
	
   

  	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Kendyl Lowe

  
	
   

  	
   

  	
  Name: Kendyl Lowe

  






 


12














 


RESTRICTED
STOCK AGREEMENT


 


BIOHORIZONS, INC.


 


AGREEMENT made as of April 15, 2008 (the “Grant Date”), between
BioHorizons, Inc. (the “Company”), a Delaware corporation, and Kendyl Lowe (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, 10,000 Shares of the Company’s Common Stock
(such shares, subject to adjustment pursuant to Section 24 of the Plan and
Subsection 2.1 (i) hereof, 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.


 

















 


2.1.                              Company’s
Lapsing Repurchase Right.


 


(a)                                  Lapsing Repurchase
Right. Except as set forth in Subsections 2.1(b), 2.1(c) and 2.1(d) hereof,
in the event that for any reason the Participant is no longer an employee,
director or consultant of the Company or an Affiliate prior to the third
anniversary of the Date of Reference, the Company (or its designee) shall have
the option, but not the obligation, to purchase from the Participant (or the
Participant’s Survivor), and, in the event the Company exercises such option,
the Participant (or the Participant’s Survivor) shall be obligated to sell to
the Company (or its designee), at a price per Granted Share equal to the
Purchase Price, all or any part of the Granted Shares set forth in clauses
(i) and (ii) below (the “Lapsing Repurchase Right”). The Company’s
Lapsing Repurchase Right shall be valid for a period of one year commencing
with the date of such termination of employment or service. Notwithstanding any
other provision hereof, in the event the Company is prohibited during such one
year period from exercising its Lapsing Repurchase Right by Section 160 of
the Delaware General Corporation Law as amended from time to time (or any
successor provision), then the time period during which such Lapsing Repurchase
Right may be exercised shall be extended until 30 days after the Company is
first not so prohibited. For the purposes of this Agreement, “Date of Reference”
shall be April 15, 2008.


 


(i)                                               If such
termination is prior to the first anniversary of the Date of Reference, the
Company shall have the option to repurchase all of the Granted Shares acquired
by the Participant hereunder.


 


(ii)                                            If such
termination is on or after the first anniversary of the Date of Reference, but
prior to the third anniversary of the Date of Reference, the Company shall have
the option to repurchase all of the Granted Shares less one-third of the
Granted Shares for each full 12 month period elapsed after the Date of
Reference that the Participant continues to serve as an employee, director or
consultant of the Company or Affiliate.


 


(b)                                 Effect of
Termination for Disability or upon Death. The following
rules apply if the Participant ceases to be an employee, director or
consultant of the Company or an Affiliate by reason of Disability or death: to
the extent the Company’s Lapsing Repurchase Right has not lapsed as of the date
of Disability or death, as case may be, the Company may exercise such Lapsing
Repurchase Right; provided, however, that the Company’s Lapsing Repurchase
Right shall be deemed to have lapsed to the extent of a pro rata portion of the
Granted Shares through the date of Disability or death, as would have lapsed
had the Participant not become Disabled or died, as the case may be. The
proration shall be based upon the number of days accrued in such current
vesting period prior to the Participant’s date of Disability or death, as the
case may be.


 


(c)                                  Effect of a For
Cause Termination. Notwithstanding anything to the contrary contained
in this Agreement, in the event the Company or an Affiliate terminates the
Participant’s employment or service for “cause” (as defined in the Plan) or in
the event the Administrator determines, within one year after the Participant’s
termination, that either prior or subsequent to the Participant’s termination
the Participant engaged in conduct that would


 


2

















 


constitute “cause,” all of the Granted Shares then held by the
Participant shall be forfeited to the Company immediately as of the time the
Participant is notified that he or she has been terminated for “cause” or that
he or she engaged in conduct which would constitute “cause”.


 


(d)                                           Effect of
Change of Control. Except as otherwise provided in Subsection
2.1(c) above, the Company’s Lapsing Repurchase Right shall terminate, and
the Participant’s ownership of all Granted Shares then owned by the Participant
shall become vested in accordance with the terms and conditions set forth in
Section 24 of the Plan.


 


(e)                                            Closing. In the event
that the Company exercises the Lapsing Repurchase Right, the Company shall
notify the Participant, or, in the case of the Participant’s death, his or her
Survivor, in writing of its intent to repurchase the Granted Shares. Such
notice may be mailed by the Company up to and including the last day of the
time period provided for above for exercise of the Lapsing Repurchase Right.
The notice shall specify the place, time and date for payment of the repurchase
price (the “Closing”) and the number of Granted Shares with respect to which
the Company is exercising the Lapsing Repurchase Right. The Closing shall be
not less than ten days nor more than 60 days from the date of mailing of the
notice, and the Participant or the Participant’s Survivor with respect to the
Granted Shares which the Company elects to repurchase 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 repurchased, 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.


 


(f)                                    Escrow. The
certificates representing all Granted Shares acquired by the Participant hereunder
which from time to time are subject to the Lapsing Repurchase Right shall be
delivered to the Company and the Company shall hold such Granted Shares in
escrow as provided in this Subsection 2.1(f). The Company shall promptly
release from escrow and deliver to the Participant a certificate for the whole
number of Granted Shares, if any, as to which the Company’s Lapsing Repurchase
Right has lapsed as the Participant’s ownership of such Granted Shares becomes
vested from time to time. In the event of a repurchase by the Company of
Granted Shares subject to the Lapsing Repurchase Right, the Company shall
release from escrow and cancel a certificate for the number of Granted Shares
so repurchased. Any securities distributed in respect of the Granted Shares
held in escrow, including, without limitation, shares issued as a result of
stock splits, stock dividends or other recapitalizations, shall also be held in
escrow in the same manner as the Granted Shares.


 


(g)                                 Prohibition on
Transfer. The Participant recognizes and agrees that all
Granted Shares which are subject to the Lapsing Repurchase Right may not be
sold, transferred, assigned, hypothecated, pledged, encumbered or otherwise
disposed of, whether voluntarily or by operation of law, other than to the Company
(or its designee). However, the Participant, with the approval of the
Administrator, may transfer the Granted Shares for no consideration to or for
the benefit of the Participant’s Immediate Family (including, without
limitation, to a trust for the benefit of the Participant’s Immediate Family or
to a partnership or limited liability company for one or more members of the
Participant’s Immediate Family), subject to such limits as the Administrator
may establish, and the transferee shall remain subject to all the terms and


 


3

















 


conditions applicable to this Agreement prior to such transfer and each
such transferee shall so acknowledge in writing as a condition precedent to the
effectiveness of such transfer. The term “Immediate Family” shall mean the
Participant’s spouse, & former spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers, nieces and nephews and
grandchildren (and, for this purpose, shall also include the Participant). The
Company shall not be required to transfer any Granted Shares on its books which
shall have been sold, assigned or otherwise transferred in violation of this
Subsection 2.1(g), or to treat as the owner of such Granted Shares, or to
accord the right to vote as such owner or to pay dividends to, any person or
organization to which any such Granted Shares shall have been so sold, assigned
or otherwise transferred, in violation of this Subsection 2.1(g).


 


(h)                                      Failure to
Deliver Granted Shares to be Repurchased. In the event that the
Granted Shares to be repurchased by the Company under this Agreement are not in
the Company’s possession pursuant to Subsection 2.1(f) above or otherwise
and the Participant or the Participant’s Survivor fails to deliver such Granted
Shares to the Company (or its designee), the Company may elect (i) to
establish a segregated account in the amount of the repurchase price, such
account to be turned over to the Participant or the Participant’s Survivor upon
delivery of such Granted Shares, and (ii) immediately to take such action
as is appropriate to transfer record title of such Granted Shares from the
Participant to the Company (or its designee) and to treat the Participant and
such Granted Shares in all respects as if delivery of such Granted Shares had
been made as required by this Agreement. The Participant hereby irrevocably
grants the Company a power of attorney which shall be coupled with an interest
for the purpose of effectuating the preceding sentence.


 


(i)                                          Adjustments. The Plan
contains provisions covering the treatment of Shares in a number of
contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to the Granted Shares and the related provisions with
respect to successors to the business of the Company are hereby made applicable
hereunder and are incorporated herein by reference.


 


2.2                                 General
Restrictions on Transfer of Granted Shares.


 


(a)                                       Limitations on
Transfer. In addition to the restrictions set forth above in
Section 2.1, the Granted Shares acquired by the Participant hereunder and
no longer subject to the provisions of Section 2.1 herein (the “Vested
Shares”) shall not be transferred by the Participant except as permitted
herein, shall be subject to the provisions of Sections 2.1 (f), (g) and
(h) above 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 Vested Shares not previously repurchased in accordance
with the provisions of Section 2.1 of this Agreement as follows:


 


4

















 


(i)                                          The Company’s
option to repurchase the Vested Shares in the event of termination of service
under this Section 2.2(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 Vested Shares under this Section 2.2(b), the Company shall
notify the Participant, or in case of death, his or her Survivor, in writing of
its intent to repurchase the Vested 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 2.2(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 Vested 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 Vested 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 Vested Shares repurchased hereunder (the “Repurchase Price”)
shall equal the Fair Market Value of such Vested 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 2.2
shall be equal to the Purchase Price.


 


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


 


(i)                                          No Vested
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 Vested 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


 


5

















 


proposed transferee to purchase the Vested Shares of
the Participant. Such notice shall constitute a binding offer by the
Participant to sell to the Company such number of the Vested 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
Vested 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 2.2(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 Vested 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 2.2(c) so that he or she (and all subsequent transferees)
shall thereafter only be permitted to sell or transfer the Vested Shares in
accordance with the terms hereof. After the expiration of such six months, the
provisions of this Section 2.2(c) shall again apply with respect to any
proposed voluntary transfer of the Vested Shares.


 


(iv)                                   The provisions
of this Section 2.2(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 2.2(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 Vested 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.


 


6

















 


(d)                                 The provisions
of Section 2.2 (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:


 


“The shares represented by this certificate are
subject to restrictions set forth in a Restricted Stock Agreement dated as of April 15, 2008 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:


 


7

















 


“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, including, without
limitation, the Lapsing Repurchase Right, shall be the Participant’s
responsibility. Without limiting the foregoing, the Participant agrees that, to
the extent that the lapsing of restrictions on disposition of any of the
Granted Shares or the declaration of dividends on any such shares before the
lapse of such restrictions on disposition results in the Participant’s being
deemed to be in receipt of earned income under the provisions of the Code, the
Company shall be entitled to immediate payment from the Participant of the
amount of any tax required to be withheld by the Company.


 


Upon execution of this Agreement, the Participant
may file an election under Section 83 of the Code in substantially the
form attached as Exhibit B.  The Participant acknowledges
that if he does not file such an election, as the Granted Shares are released
from the Lapsing Repurchase Right in accordance with Section 2.1, the
Participant will have income for tax purposes equal to the fair market value of
the Granted Shares at such date, less the price paid for the Granted Shares by
the Participant.


 


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 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


 


8

















 


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: William Ross, CFO

  



 


If to the Participant:


 


	
   

  	
  Kendyl Lowe 

  
	
   

  	
  1116 Glen View Road 

  
	
   

  	
  Birmingham, Alabama 35222

  
	
   

  	
   

  



 


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.


 


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.


 


9

















 


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.


 


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.


 


10

















 


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]


 


11

















 


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


 


	
   

  	
  BIOHORIZONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Ross

  
	
   

  	
  Name:

  	
  William Ross

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Kendyl Lowe

  
	
   

  	
  Name:

  	
  Kendyl Lowe

  
				



 


12














 


RESTRICTED STOCK AGREEMENT


 


BIOHORIZONS, INC.


 


AGREEMENT made as of February 4, 2009 (the “Grant Date”), between
BioHorizons, Inc. (the “Company”), a Delaware corporation, and Kendyl Lowe (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, 20,000 Shares of the Company’s Common Stock
(such shares, subject to adjustment pursuant to Section 24 of the Plan and
Subsection 2.1(i) hereof, 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.


 


1

















 


2.1.                              Company’s
Lapsing Repurchase Right.


 


(a)                                  Lapsing
Repurchase Right. Except as set forth in Subsections 2.1(b),
2.1(c) and 2.1(d) hereof, in the event that for any reason the
Participant is no longer an employee, director or consultant of the Company or
an Affiliate prior to the third anniversary of the Date of Reference, the
Company (or its designee) shall have the option, but not the obligation, to
purchase from the Participant (or the Participant’s Survivor), and, in the
event the Company exercises such option, the Participant (or the Participant’s
Survivor) shall be obligated to sell to the Company (or its designee), at a
price per Granted Share equal to the Purchase Price, all or any part of the
Granted Shares set forth in clauses (i) and (ii) below (the “Lapsing
Repurchase Right”). The Company’s Lapsing Repurchase Right shall be valid for a
period of one year commencing with the date of such termination of employment
or service. Notwithstanding any other provision hereof, in the event the
Company is prohibited during such one year period from exercising its Lapsing
Repurchase Right by Section 160 of the Delaware General Corporation Law as
amended from time to time (or any successor provision), then the time period
during which such Lapsing Repurchase Right may be exercised shall be extended
until 30 days after the Company is first not so prohibited. For the purposes of
this Agreement, “Date of Reference” shall be February 4,
2009.


 


(i)                                               If such
termination is prior to the first anniversary of the Date of Reference, the
Company shall have the option to repurchase all of the Granted Shares acquired
by the Participant hereunder.


 


(ii)                                            If such
termination is on or after the first anniversary of the Date of Reference, but
prior to the third anniversary of the Date of Reference, the Company shall have
the option to repurchase all of the Granted Shares less one-third of the
Granted Shares for each full 12 month period elapsed after the Date of
Reference that the Participant continues to serve as an employee, director or
consultant of the Company or Affiliate.


 


(b)                                 Effect of Termination
for Disability or upon Death. The following
rules apply if the Participant ceases to be an employee, director or
consultant of the Company or an Affiliate by reason of Disability or death: to
the extent the Company’s Lapsing Repurchase Right has not lapsed as of the date
of Disability or death, as case may be, the Company may exercise such Lapsing
Repurchase Right; provided, however, that the Company’s Lapsing Repurchase
Right shall be deemed to have lapsed to the extent of a pro rata portion of the
Granted Shares through the date of Disability or death, as would have lapsed
had the Participant not become Disabled or died, as the case may be. The
proration shall be based upon the number of days accrued in such current
vesting period prior to the Participant’s date of Disability or death, as the
case may be.


 


(c)                                  Effect of a For
Cause Termination. Notwithstanding anything to the contrary contained
in this Agreement, in the event the Company or an Affiliate terminates the
Participant’s employment or service for “cause” (as defined in the Plan) or in
the event the Administrator determines, within one year after the Participant’s
termination, that either prior or subsequent to the Participant’s termination
the Participant engaged in conduct that would


 


2

















 


constitute “cause,” all of the Granted Shares then held by the
Participant shall be forfeited to the Company immediately as of the time the
Participant is notified that he or she has been terminated for “cause” or that
he or she engaged in conduct which would constitute “cause”.


 


(d)                                 Effect of
Change of Control. Except as otherwise provided in Subsection
2.1(c) above, the Company’s Lapsing Repurchase Right shall terminate, and
the Participant’s ownership of all Granted Shares then owned by the Participant
shall become vested in accordance with the terms and conditions set forth in
Section 24 of the Plan.


 


(e)                                  Closing. In the event
that the Company exercises the Lapsing Repurchase Right, the Company shall
notify the Participant, or, in the case of the Participant’s death, his or her
Survivor, in writing of its intent to repurchase the Granted Shares. Such
notice may be mailed by the Company up to and including the last day of the
time period provided for above for exercise of the Lapsing Repurchase Right.
The notice shall specify the place, time and date for payment of the repurchase
price (the “Closing”) and the number of Granted Shares with respect to which
the Company is exercising the Lapsing Repurchase Right. The Closing shall be
not less than ten days nor more than 60 days from the date of mailing of the
notice, and the Participant or the Participant’s Survivor with respect to the
Granted Shares which the Company elects to repurchase 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 repurchased, 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.


 


(f)                                    Escrow. The
certificates representing all Granted Shares acquired by the Participant
hereunder which from time to time are subject to the Lapsing Repurchase Right
shall be delivered to the Company and the Company shall hold such Granted
Shares in escrow as provided in this Subsection 2.1(f). The Company shall
promptly release from escrow and deliver to the Participant a certificate for
the whole number of Granted Shares, if any, as to which the Company’s Lapsing
Repurchase Right has lapsed as the Participant’s ownership of such Granted Shares
becomes vested from time to time. In the event of a repurchase by the Company
of Granted Shares subject to the Lapsing Repurchase Right, the Company shall
release from escrow and cancel a certificate for the number of Granted Shares
so repurchased. Any securities distributed in respect of the Granted Shares
held in escrow, including, without limitation, shares issued as a result of
stock splits, stock dividends or other recapitalizations, shall also be held in
escrow in the same manner as the Granted Shares.


 


(g)                                 Prohibition on
Transfer. The Participant recognizes and agrees that all
Granted Shares which are subject to the Lapsing Repurchase Right may not be
sold, transferred, assigned, hypothecated, pledged, encumbered or otherwise
disposed of, whether voluntarily or by operation of law, other than to the
Company (or its designee). However, the Participant, with the approval of the
Administrator, may transfer the Granted Shares for no consideration to or for
the benefit of the Participant’s Immediate Family (including, without
limitation, to a trust for the benefit of the Participant’s Immediate Family or
to a partnership or limited liability company for one or more members of the
Participant’s Immediate Family), subject to such limits as the Administrator
may establish, and the transferee shall remain subject to all the terms and


 


3

















 


conditions applicable to this Agreement prior to such transfer and each
such transferee shall so acknowledge in writing as a condition precedent to the
effectiveness of such transfer. The term “Immediate Family” shall mean the
Participant’s spouse, former spouse, parents, children, stepchildren, adoptive
relationships, sisters, brothers, nieces and nephews and grandchildren (and,
for this purpose, shall also include the Participant). The Company shall not be
required to transfer any Granted Shares on its books which shall have been
sold, assigned or otherwise transferred in violation of this Subsection 2.1(g),
or to treat as the owner of such Granted Shares, or to accord the right to vote
as such owner or to pay dividends to, any person or organization to which any
such Granted Shares shall have been so sold, assigned or otherwise transferred,
in violation of this Subsection 2.1(g).


 


(h)                                 Failure to
Deliver Granted Shares to be Repurchased. In the event that the Granted
Shares to be repurchased by the Company under this Agreement are not in the
Company’s possession pursuant to Subsection 2.1(f) above or otherwise and
the Participant or the Participant’s Survivor fails to deliver such Granted
Shares to the Company (or its designee), the Company may elect (i) to
establish a segregated account in the amount of the repurchase price, such
account to be turned over to the Participant or the Participant’s Survivor upon
delivery of such Granted Shares, and (ii) immediately to take such action
as is appropriate to transfer record title of such Granted Shares from the
Participant to the Company (or its designee) and to treat the Participant and such
Granted Shares in all respects as if delivery of such Granted Shares had been
made as required by this Agreement. The Participant hereby irrevocably grants
the Company a power of attorney which shall be coupled with an interest for the
purpose of effectuating the preceding sentence.


 


(i)                                     Adjustments. The Plan
contains provisions covering the treatment of Shares in a number of
contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to the Granted Shares and the related provisions with
respect to successors to the business of the Company are hereby made applicable
hereunder and are incorporated herein by reference.


 


2.2                                 General
Restrictions on Transfer of Granted Shares.


 


(a)                                  Limitations on
Transfer. In addition to the restrictions set forth above in
Section 2.1, the Granted Shares acquired by the Participant hereunder and
no longer subject to the provisions of Section 2.1 herein (the “Vested
Shares”) shall not be transferred by the Participant except as permitted
herein, shall be subject to the provisions of Sections 2.1 (f), (g) and
(h) above 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 Vested Shares not previously repurchased in accordance
with the provisions of Section 2.1 of this Agreement as follows:


 


4

















 


(i)                                     The Company’s
option to repurchase the Vested Shares in the event of termination of service
under this Section 2.2(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 Vested Shares under this Section 2.2(b), the Company shall
notify the Participant, or in case of death, his or her Survivor, in writing of
its intent to repurchase the Vested 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 2.2(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 Vested 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 Vested 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 Vested Shares repurchased hereunder (the “Repurchase Price”)
shall equal the Fair Market Value of such Vested 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 2.2
shall be equal to the Purchase Price.


 


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


 


(i)                                     No Vested
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 Vested 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


 


5

















 


proposed transferee to purchase the Vested Shares of
the Participant. Such notice shall constitute a binding offer by the
Participant to sell to the Company such number of the Vested 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
Vested 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 2.2(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 Vested 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 2.2(c) so that he or she (and all subsequent
transferees) shall thereafter only be permitted to sell or transfer the Vested
Shares in accordance with the terms hereof. After the expiration of such six
months, the provisions of this Section 2.2(c) shall again apply with respect
to any proposed voluntary transfer of the Vested Shares.


 


(iv)                              The provisions
of this Section 2.2(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 2.2(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 Vested 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.


 


6

















 


(d)                                 The provisions
of Section 2.2(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:


 


“The shares represented by this certificate are
subject to restrictions set forth in a Restricted Stock Agreement dated as of February 4, 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:


 


7

















 


“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,
including, without limitation, the Lapsing Repurchase Right, shall be the
Participant’s responsibility. Without limiting the foregoing, the Participant
agrees that, to the extent that the lapsing of restrictions on disposition of
any of the Granted Shares or the declaration of dividends on any such shares
before the lapse of such restrictions on disposition results in the Participant’s
being deemed to be in receipt of earned income under the provisions of the
Code, the Company shall be entitled to immediate payment from the Participant
of the amount of any tax required to be withheld by the Company.


 


Upon execution of this Agreement, the Participant
may file an election under Section 83 of the Code in substantially the form
attached as Exhibit B. The Participant acknowledges that if he does
not file such an election, as the Granted Shares are released from the Lapsing
Repurchase Right in accordance with Section 2.1, the Participant will have
income for tax purposes equal to the fair market value of the Granted Shares at
such date, less the price paid for the Granted Shares by the Participant.


 


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 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


 


8

















 


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: William Ross, CFO


 


If to the Participant:


 


Kendyl Lowe


1116 Glen View Road


Birmingham, Alabama 35222


 


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.


 


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.


 


9

















 


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.


 


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.


 


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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/ William Ross

  
	
   

  	
  Name: William Ross

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  
	
   

  	
  /s/ Kendyl Lowe

  
	
   

  	
  Name: Kendyl Lowe

  



 


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