United
States
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 27, 2010
OSIRIS THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Charter)
Maryland |
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001-32966 |
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71-0881115 |
(State or other jurisdiction of |
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(Commission File Number) |
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(IRS Employer |
incorporation) |
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Identification No.) |
7015 Albert Einstein Drive, Columbia, Maryland |
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21046 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (443) 545 - 1800
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 3.03. MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS.
The Reincorporation Merger
General. As described below under Item 5.07, at the Annual Meeting of Stockholders of Osiris Therapeutics, Inc., a Delaware corporation (Osiris), held on May 27, 2010 (the Annual Meeting), Osiriss stockholders, upon the recommendation of its board of directors, approved a proposal to reincorporate as a Maryland corporation, through and including a merger of Osiris with and into Osiris Maryland, Inc., a wholly-owned subsidiary of Osiris incorporated in Maryland (the Reincorporation Merger). Following stockholder approval, Osiris has filed or caused to be filed a certificate of merger in Delaware and articles of merger (the Articles of Merger) in Maryland, in order to effect the Reincorporation merger. Pursuant to the certificate of merger and Articles of Merger, the Reincorporation Merger became effective as of 11:59 P.M., eastern daylight time, on May 31, 2010 (the Effective Time). Pursuant to the Articles of Merger, Osiris Maryland, Inc. changed its name to Osiris Therapeutics, Inc.
The Board of Directors recommended the Reincorporation Merger primarily because it will eliminate Osiris annual Delaware franchise tax expense.. For the fiscal year ended December 31, 2009, Osiris paid $162,050 in Delaware franchise taxes and anticipates that if it were to remain incorporated in Delaware, it would continue to pay up to $180,000 in Delaware franchise taxes each year for the foreseeable future. During the current fiscal year, some of the savings anticipated by the reincorporation will initially be offset by expenses associated with the reincorporation, such as filing, legal, printing and similar expenses.
For purposes of the following discussion, Osiris Delaware or Osiris shall mean Osiris Therapeutics, Inc., a Delaware corporation, as in existence prior to the Reincorporation Merger, and Osiris Maryland shall mean Osiris Therapeutics, Inc., a Maryland corporation formerly known as Osiris Maryland, Inc., the surviving corporation in the Reincorporation Merger.
Effect of the Merger . As of the Effective Time of the Reincorporation Merger (i) the separate legal existence of Osiris Delaware ceased and Osiris Maryland, as the surviving corporation, succeeded to all business, properties, assets and liabilities of Osiris Delaware, (ii) Osiris Maryland changed its name to Osiris Therapeutics, Inc., (iii) the directors and officers of Osiris Delaware prior to the Reincorporation Merger, including the newly elected directors identified below under Item 5.07, continued as the directors and officers of Osiris Maryland after the Reincorporation Merger for an identical term of office, (iv) each outstanding share of common stock, par value $0.001 per share, of Osiris Delaware was converted into one share of common stock, par value $0.001 per share, of Osiris Maryland, (v) each outstanding option, warrant or other right to purchase shares of common stock of Osiris Delaware continued outstanding as an option, warrant or other right to purchase shares of common stock of Osiris Maryland upon the same terms and conditions as they existed immediately prior to the Effective Time with respect to Osiris Delaware, (vi) each outstanding certificate representing shares of common stock of Osiris Delaware continued to be outstanding to represent the same number of shares of common stock of Osiris Maryland, with delivery of certificates for shares of common stock of Osiris Delaware constituting good delivery for transactions in the shares of common stock of Osiris Maryland (it will not be necessary for stockholders of Osiris Delaware to exchange their existing stock certificates for stock certificates of Osiris Maryland), (vii) the surviving corporation, Osiris Maryland, is governed by (x) the Maryland General Corporation Law (the MGCL), (y) the Articles of Incorporation of Osiris Maryland, as amended (the Maryland Charter), including as amended pursuant the Articles of Merger to change its name from Osiris Maryland, Inc. to Osiris Therapeutics, Inc., and (z) the Bylaws of Osiris Maryland (the Maryland Bylaws), and (viii) the various corporate governance documents of Osiris Delaware (publicly available on the Investor RelationsCorporate Governance section of Osiriss website at http://investor.osiris.com/documents.cfm) remained in effect as the corporate governance documents of Osiris Maryland.
A copy of the constituent documents comprising the Maryland Charter the Articles of Incorporation and the Articles of Merger are attached hereto as Exhibits 3.1 and 3.2, respectively. A copy of the Maryland Bylaws is attached hereto as Exhibit 3.3.
With respect to the rights of holders of Osiris Maryland common stock, the Maryland Charter, the Maryland Bylaws and the MGCL provide for many of the same rights and obligations as did the certificate of incorporation, the bylaws and the Delaware General Corporation Law for the holders of Osiris Delaware common stock, although there are differences in certain respects. For a description of the differences between the rights of holders of Osiris Delaware common stock and Osiris Maryland common stock, see the discussion under Proposal No. 2Reincorporation as a Maryland Corporation, through and including a Merger with and into our Wholly Owned Subsidiary, Osiris Maryland, Inc.Comparison of Delaware Organizational Documents and DGCL to Maryland Organizational Documents and MGCL in our Definitive Proxy Statement on Schedule 14A, as filed with the Securities and Exchange Commission on April 16, 2010 (the Proxy Statement), which discussion is incorporated herein by reference.
ITEM 5.02. DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.
As described below under Item 5.07, at the Annual Meeting of Stockholders held on May 27, 2010, the stockholders of Osiris Delaware, by the affirmative vote of approximately 98.3% votes present and entitled to be cast and 65.6% of the votes entitled to be cast, approved an amendment to Osiriss Amended and Restated 2006 Omnibus Plan (the Omnibus Plan) to increase the aggregate number of shares of common stock that may be issued at any time pursuant to awards granted thereunder from 1,450,000 to 1,950,000 shares, and to extend the termination date, after which awards may no longer be granted thereunder, from April 16, 2016 to May 27, 2020. The stockholders, upon the recommendation of the board of directors, also re-approved the Omnibus Plan, including for purposes of Section 162(m) of the Internal Revenue Code. Following the Annual Meeting, the board of directors caused the Omnibus Plan to be amended and restated to reflect the amendments approved by the stockholders and to reflect the then pending Reincorporation Merger. The text of the Omnibus Plan, as so amended and restated, is filed as Exhibit 10.1 to this Current Report on Form 8-K.
The Amended and Restated Plan is the sole equity compensation plan under which grants and awards are made to employees and directors of the Company. The Company formerly made grants under the Amended and Restated 1994 Stock Incentive Plan, but the ability to make awards thereunder has expired. All non-employee directors and all employees (including officers) of the Company or its subsidiaries are eligible to receive awards under the Amended and Restated Plan. The Amended and Restated Plan contains provisions for making various stock-based awards, including non-qualified stock options, incentive stock options as defined in Section 422 of the Internal Revenue Code of 1986, as amended, stock appreciation rights, restricted stock awards, and performance shares and in some cases performance units. In no event is any individual employee or director eligible to receive in any calendar year awards under the Amended and Restated Plan involving more that 125,000 shares of our common stock (or 50,000 shares in the case of performance share awards), as adjusted due to a merger, reorganization or similar event.
The Compensation Committee of the Board of Directors administers the Amended and Restated Plan and has the authority, subject to the terms of the Amended and Restated Plan, to determine and designate the employees and directors to whom awards will be made and the terms, conditions and restrictions applicable to each award (including, but not limited to, the option price, any restriction or limitation, any vesting schedule or acceleration thereof, any forfeiture restrictions and performance goals and criteria). The foregoing summary of the Omnibus Plan is qualified by and subject to the full text of the Omnibus Plan.
ITEM 5.07. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Osiris held its Annual Meeting of Stockholders on May 27, 2010. Of the 32,775,331 shares of common stock outstanding as of the record date of the Annual Meeting, 24,779,525 shares, or 75.6% of the total shares eligible to vote at the Annual Meeting, were represented in person or by proxy. Four proposals were submitted to the stockholders and approved at the Annual Meeting. The proposals are described in detail in our previously filed Proxy Statement for the Annual Meeting. The following is a brief description of each matter voted upon at the Annual Meeting, as well as the number of votes cast for or against each matter and the number of abstentions and broker non-votes with respect to each matter, both in person and by proxy.
Election of Directors . Each of Messrs. Jay M. Moyes and Gregory H. Barnhill were elected to serve as a member of the board of directors for a term expiring at the Annual Meeting of Stockholders to be held in 2013 and until his successor is duly elected and qualified, as follows:
Director |
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Votes FOR |
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Votes WITHHELD |
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Broker Non-Votes |
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Jay M. Moyes |
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21,724,004 |
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125,179 |
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2,930,342 |
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Gregory H. Barnhill |
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21,717,449 |
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131,734 |
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2,930,342 |
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The term of office of each of C. Randal Mills, PhD, Felix Gutzwiller, M.D., Dr.P.H. and Mr. Peter Friedli continued following the meeting.
Reincorporation from Delaware to Maryland . The stockholders voted to approve the proposal presented by the board of directors to reincorporate as a Maryland corporation, through and including a merger of Osiris Delaware with and into Osiris Maryland, Inc., a wholly-owned subsidiary of Osiris Delaware incorporated in Maryland, as follows:
FOR |
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20,183,977 |
AGAINST |
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1,656,674 |
ABSTAIN |
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5,445 |
Broker Non-Votes |
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2,930,342 |
Amendment to and Re-approval of Amended and Restated 2006 Omnibus Plan . The stockholders voted to approve the proposal presented by the board of directors to amend the Amended and Restated 2006 Omnibus Plan to increase the aggregate number of shares of common stock that may be issued at any time pursuant to awards granted thereunder from 1,450,000 to 1,950,000 shares, and to extend the termination date, after which awards may no longer be granted thereunder, from April 16, 2016 to May 27, 2020, and to re-approve the Omnibus Plan, including for purposes of Section 162(m) of the Internal Revenue Code, as follows:
FOR |
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21,498403 |
AGAINST |
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345,335 |
ABSTAIN |
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5,445 |
Broker Non-Votes |
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2,930,342 |
Ratify Independent Registered Public Accountants . The appointment of Grant Thornton LLP, independent registered public accountants, to act as our independent auditors for the fiscal year ending December 31, 2010 was ratified, as follows:
FOR |
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24,713,340 |
AGAINST |
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57,608 |
ABSTAIN |
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8,577 |
ITEM 8.01. OTHER EVENTS.
In connection with the Reincorporation Merger (the terms, purpose and effects of which are discussed in Item 3.03 above), as of the Effective Time, for purposes of the Securities Exchange Act of 1934, as amended (the Exchange Act) (i) Osiris Maryland automatically inherited the Exchange Act reporting obligations of Osiris Delaware, and (ii) the common stock of Osiris Maryland is deemed registered under Section 12(b) of the Exchange Act by operation of Exchange Act Rule 12g-3(a). The common stock of Osiris Delaware was listed for trading on the NASDAQ Global Market and traded under the symbol OSIR. As of the Effective Time, this symbol, without interruption, represents shares of common stock of Osiris Maryland. There is no anticipated change in the Exchange Act File Number assigned by the United States Securities and Exchange Commission.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
Exhibit No. |
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Description |
3.1 |
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Articles of Incorporation of Osiris Maryland, Inc. |
3.2 |
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Articles of Merger between Osiris Therapeutics, Inc., a Delaware corporation, and Osiris Maryland, Inc. a Maryland corporation, as survivor, changing the name of Osiris Maryland Inc. to Osiris Therapeutics, Inc., as filed with the State Department of Assessments and Taxation of Maryland on May 27, 2010, and effective May 31, 2010 |
3.3 |
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Bylaws of Osiris Therapeutics, Inc., a Maryland corporation |
10.1 |
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Amended and Restated 2006 Omnibus Plan, effective as of May 27, 2010. |
Information presented in this Current Report on Form 8-K may contain forward-looking statements and certain assumptions upon which such forward-looking statements are in part based. Forward-looking statements are subject to known and unknown risks and uncertainties and are based on potentially inaccurate assumptions that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Risks and that could cause actual results to differ materially from those anticipated in forward-looking statements, include the factors described in the sections entitled Risk Factors in our Annual Report on Form 10-K filed with the United States Securities and Exchange. You should not unduly rely on forward-looking statements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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OSIRIS THERAPEUTICS, INC. |
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Dated: June 2, 2010 |
By: |
/s/ PHILIP R. JACOBY, JR. |
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Philip R. Jacoby, Jr. |
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Chief Financial Officer and Corporate Secretary |
EXHIBIT 3.1
OSIRIS MARYLAND, INC.
ARTICLES OF INCORPORATION
The undersigned, C. Randal Mills, whose address is 7015 Albert Einstein Drive, Columbia, Maryland 21046, being at least 18 years of age, does hereby form a corporation under the general laws of the State of Maryland.
The name of the corporation (the Corporation) is:
Osiris Maryland, Inc.
The purpose for which the Corporation is formed is to engage in any lawful business or other activity for which corporations may be organized under the general laws of the State of Maryland as now or hereafter in force.
The address of the principal office of the Corporation in the State of Maryland is 7015 Albert Einstein Drive, Columbia, Maryland 21046. The name of the resident agent of the Corporation in the State of Maryland is The Corporation Trust Incorporated, whose post office address is 351 West Camden Street, Baltimore, Maryland 21201. The resident agent is a Maryland corporation.
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Gregory H. Barnhill |
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Class I |
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Jay M. Moyes |
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Class I |
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Felix Gutzwiller |
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Class II |
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C. Randal Mills |
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Class II |
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Peter Friedli |
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Class III |
The directors shall be divided into three classes, designated as Class I, Class II and Class III (each a Class). The directors as initially classified shall hold office for terms as follows: (i) the Class I directors shall hold office until the date of the annual meeting of the holders of shares of Common Stock (as defined herein) of the Corporation in 2013 and until their successors shall be duly elected and qualified; (ii) the Class II directors shall hold office until the date of the annual meeting of holders of shares of Common Stock in 2011 and until their successors shall be duly elected and qualified; and (iii) the Class III directors shall hold office until the date of the annual meeting of holders of shares of Common Stock in 2012 and until their successors shall be elected and have qualified; provided, however, that the term of office of any individual named as an initial director of the Corporation in this Section 5.1 shall immediately expire at the effective time of the merger of Osiris Therapeutics, Inc., a Delaware corporation (Osiris Delaware), with and into the Corporation if such individual is not a director of Osiris Delaware immediately prior to such effective time, and such individuals successor may be appointed pursuant to Section 5.8 of this Article V to serve as a member of the Class of which such individual was formerly a member for the remainder of the term of office of such Class. Upon expiration of the term of office of each Class as set forth above, the successors to the directors in each such Class shall be elected for a term of three years to succeed the directors whose terms of office expire. If the number of directors is changed, any increase or decrease shall be apportioned among the Classes so as to maintain the number of directors in each Class as nearly equal as possible; provided, however, that no action shall be taken with respect to the election or appointment of directors such that one Class shall have more than one director more than any other Class. A director elected by the holders of shares of Common Stock shall hold office until the annual
meeting for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however, to the prior death, resignation, retirement, disqualification or removal from office of such director.
The indemnification provided herein shall not be deemed to limit the right of the Corporation to indemnify any other person for any such expenses to the fullest extent permitted by law, nor shall it be deemed exclusive of any other rights to which any person seeking indemnification from the Corporation may be entitled under the Bylaws, any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action and such persons official capacity and as to act in another capacity while holding such office.
(e) The Board of Directors may reclassify any unissued shares of Common Stock from time to time in one or more classes or series of stock.
DURATION
The existence of the Corporation shall be perpetual.
AMENDMENTS
The Corporation reserves the right from time to time to make any amendment to the Charter, now or hereafter authorized by law, including any amendment altering the terms or contract rights, as expressly set forth in the Charter, of any shares of outstanding stock. All rights and powers conferred by the Charter on stockholders, directors and officers are granted subject to this reservation. Except as otherwise provided in the Charter, any amendment to the Charter shall be valid only if approved by the stockholders of the Corporation by the affirmative vote of a majority of all the votes entitled to be cast on the matter.
LIMITATION OF LIABILITY
To the maximum extent that Maryland law in effect from time to time permits limitation of the liability of directors and officers of a corporation, no director or officer of the Corporation shall be liable to the Corporation or its stockholders for money damages. Neither the amendment nor repeal of this Article IX, nor the adoption or amendment of any other provision of the Charter or Bylaws inconsistent with this Article IX, shall apply to or affect in any respect the applicability of the preceding sentence with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has signed these Articles of Incorporation and acknowledged the same to be his act as of this 30th day of March, 2010.
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C. Randal Mills |
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C. Randal Mills |
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Incorporator |
EXHIBIT 3.2
ARTICLES OF MERGER
OF
OSIRIS MARYLAND, INC.,
a Maryland corporation
AND
OSIRIS THERAPEUTICS, INC.,
a Delaware corporation
Osiris Maryland, Inc. , a Maryland corporation, and Osiris Therapeutics, Inc., a Delaware corporation, do hereby certify to the State Department of Assessments and Taxation of Maryland (the Department) as follows:
FIRST : Osiris Maryland, Inc. and Osiris Therapeutics, Inc. (Merging Corporation) agree to merge in the manner hereinafter set forth (the Merger).
SECOND : Osiris Maryland, Inc. is the entity to survive the Merger (Surviving Corporation).
THIRD : Surviving Corporation is incorporated under the laws of the State of Maryland and Merging Corporation is incorporated under the laws of the State of Delaware.
FOURTH : Merging Corporation was incorporated under the Delaware General Corporation Law on April 11, 2002, and Merging Corporation originally registered or qualified to do business in the State of Maryland on November 12, 2003 and subsequently re-registered or re-qualified to do business in the State of Maryland on April 18, 2008.
FIFTH : The principal office of Surviving Corporation in the State of Maryland is located in Howard County. The principal office of Merging Corporation in the State of Maryland is located in Howard County.
SIXTH : Merging Corporation owns no interest in land in the State of Maryland.
SEVENTH : The Merger has been duly advised, authorized and approved by Surviving Corporation in the manner and by the vote required by the Maryland General Corporation Law, and the Articles of Incorporation and Bylaws of Surviving Corporation as follows:
(a) By unanimous written consent, the Board of Directors of Surviving Corporation adopted a resolution declaring the Merger advisable and in the best interests of Surviving Corporation and its sole stockholder, and directing that the
Merger be submitted for consideration by the sole stockholder of Surviving Corporation.
(b) By written consent of the sole stockholder of Surviving Corporation, the Merger was approved by the sole stockholder of Surviving Corporation.
EIGHTH : The Merger has been duly advised, authorized and approved by Merging Corporation in the manner and by the vote required by the Delaware General Corporation Law, and the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of Merging Corporation as follows:
(a) At a meeting duly called and held, the Board of Directors of Merging Corporation adopted a resolution declaring the Merger advisable and in the best interests of Merging Corporation and its stockholders, and directing the Merger be submitted for consideration by the stockholders of Merging Corporation entitled to vote thereon.
(b) At the annual meeting of stockholders of Merging Corporation duly called and held on May 27, 2010, the Merger was approved by the stockholders of Merging Corporation by the affirmative vote of the holders of a majority of the outstanding shares of Merging Corporations common stock.
NINTH : At the Effective Time (as defined herein), in order to change the name of Surviving Corporation to Osiris Therapeutics, Inc., the charter of Surviving Corporation, as in effect immediately prior to the Effective Time, will be, and hereby is, amended as part of the Merger, to delete Article II in its entirety and to insert, in lieu thereof, the following:
ARTICLE II
NAME
The name of the Corporation (the Corporation) is:
Osiris Therapeutics, Inc.
The Charter, as so amended, shall continue in full force and effect until duly amended further in accordance with its terms and applicable law.
TENTH : The total number of shares of all classes of stock which Surviving Corporation has the authority to issue is one hundred ten million (110,000,000) shares consisting of ninety million (90,000,000) shares of common stock, par value $0.001 per share (Surviving Corporation Common Stock), and twenty million (20,000,000) shares of preferred stock, par value $0.001 per share. The aggregate par value of all of Surviving Corporations authorized capital stock is one hundred ten thousand dollars ($110,000).
ELEVENTH : The total number of shares of all classes of stock which Merging Corporation has the authority to issue is one hundred ten million (110,000,000) shares consisting of ninety million (90,000,000) shares of common stock, par value $0.001 per share (the Merging Corporation Common Stock), and twenty million (20,000,000) shares of preferred stock, par value $0.001 per share. The aggregate par value of all of Merging Corporations authorized capital stock is one hundred ten thousand dollars ($110,000).
TWELFTH : At the Effective Time, Surviving Corporation and Merging Corporation shall merge with one another, with Surviving Corporation as the surviving entity and, thereupon, Merging Corporation shall cease to exist, Surviving Corporation shall possess any and all purposes and powers of Merging Corporation, and all leases, licenses, property, rights, privileges and powers of whatever nature and description of Merging Corporation shall be transferred to, vested in and devolved upon Surviving Corporation without further act or deed, subject to all the debts and obligations of Merging Corporation. Except as otherwise provided in these Articles of Merger, consummation of the Merger at the Effective Time shall have the effects set forth in Section 3-114 of the Maryland General Corporation Law and applicable provisions of the Delaware General Corporation Law.
THIRTEENTH : The manner and basis of converting or exchanging the issued shares of stock of Surviving Corporation and the manner and basis of converting or exchanging the issued shares of stock of Merging Corporation at the Effective Time shall be as follows:
At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any shares of stock of Surviving Corporation or any shares of stock of Merging Corporation:
(a) Each share of Merging Corporation Common Stock issued and outstanding immediately prior to the Effective Time will be converted into one (1) validly issued, fully paid and nonassessable share of Surviving Corporation Common Stock.
(b) Each share of Surviving Corporation Common Stock issued and outstanding immediately prior to the Effective Time (all of which are owned by Merging Corporation) will no longer be issued and outstanding and will automatically be canceled and retired and will cease to exist, and no consideration will be deliverable in exchange therefor.
(c) Each share of Merging Corporation Common Stock held in Merging Corporations treasury will automatically be canceled and retired and will cease to exist, and no consideration will be deliverable in exchange therefor.
Upon and after the Effective Time, all of the outstanding certificates which prior to the Effective Time represented shares of Merging Corporation Common Stock will be deemed for all purposes to evidence ownership of and to represent the shares of Surviving Corporation Common Stock into which the shares of Merging Corporation Common Stock represented by
such certificates are converted as herein provided. The registered owner on the books and records of Merging Corporation or its transfer agent of any such outstanding stock certificate will, until such certificate is surrendered for transfer or conversion or otherwise accounted for to Surviving Corporation or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividend and other distributions upon, the shares of Surviving Corporation Common Stock.
At the Effective Time, Surviving Corporation will assume and continue all of Merging Corporations stock option plans and agreements, including but not limited to the Amended and Restated 1994 Stock Incentive Plan, as amended, and the Second Amended and Restated 2006 Omnibus Plan, and the outstanding and unexercised portions of all options, warrants and rights to buy Merging Corporation Common Stock will become options, warrants or rights for the same number of shares of Surviving Corporation Common Stock with no other changes in the terms and conditions of such options, warrants or rights, including exercise prices, and effective upon the Effective Time, Surviving Corporation will assume the outstanding and unexercised portions of such options, warrants and rights and the obligations of Merging Corporation with respect thereto.
There are no issued and outstanding shares of stock of any class of Surviving Corporation other than Surviving Corporation Common Stock, and there are no issued and outstanding shares of stock of any class of Merging Corporation other than Merging Corporation Common Stock.
FOURTEENTH : The Merger shall become effective (the Effective Time) upon the later to occur of (i) the date and time of the acceptance of these Articles of Merger for record by the Department and (ii) May 31, 2010 at 11:59 P.M., eastern daylight time. Notwithstanding anything to the contrary in these Articles of Merger, pursuant to Section 3-108 of the Maryland General Corporation Law, the Merger may be abandoned before the Effective Time by majority vote of the entire board of directors of either Surviving Corporation or Merging Corporation.
FIFTEENTH : The undersigned President and Chief Executive Officer of Surviving Corporation acknowledges these Articles of Merger to be the corporate act of Surviving Corporation and further, as to all matters or facts required to be verified under oath, such undersigned officer acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties of perjury.
SIXTEENTH : The undersigned President and Chief Executive Officer of Merging Corporation acknowledges these Articles of Merger to be the corporate act of Merging Corporation and, as to all matters or facts required to be verified under oath, the undersigned officer acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under penalties of perjury.
[Signatures appear on the following page]
IN WITNESS WHEREOF, these Articles of Merger have been duly executed by the parties hereto as of this 27th day of May, 2010.
ATTEST: |
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OSIRIS MARYLAND, INC. |
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/s/ Philip R. Jacoby, Jr. |
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By: |
C. Randal Mills, Ph. D. |
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Name: |
Philip R. Jacoby, Jr. |
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Name: |
C. Randal Mills, Ph.D. |
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Title: |
Secretary |
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Title: |
President and Chief Executive Officer |
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ATTEST: |
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OSIRIS THERAPEUTICS, INC. |
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/s/ Philip R. Jacoby, Jr. |
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By: |
C. Randal Mills, Ph. D. |
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Name: |
Philip R. Jacoby, Jr. |
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Name: |
C. Randal Mills, Ph.D. |
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Title: |
Secretary |
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Title: |
President and Chief Executive Officer |
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EXHIBIT 3.3
OSIRIS THERAPEUTICS, INC.
BYLAWS
Subject to Section 11 and Section 12 of this Article II, any business of the Corporation may be transacted at an annual meeting of stockholders without being specifically designated in the notice, except such business as is required by any statute to be stated in such notice. No business shall be transacted at a special meeting of stockholders except as specifically designated in the notice
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding shares at any given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify in writing to the Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other than the stockholder. The resolution shall set forth the class of stockholders who may make the certification, the purpose for which the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect to a record date or closing of the stock
transfer books, the time after the record date or closing of the stock transfer books within which the certification must be received by the Corporation; and any other provisions with respect to the procedure which the Board of Directors considers necessary or desirable. On receipt of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, the stockholder of record of the specified stock in place of the stockholder who makes the certification.
Such notice shall set forth (a) as to each proposed nominee (i) the name, age, business address and, if known, residence address of each such nominee, (ii) the principal occupation or employment of each such nominee, (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee, and (iv) any other information concerning the nominee that must be disclosed as to such nominees in proxy solicitations pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including such persons written consent to be named as a nominee and to serve as a director if elected); and (b) as to the stockholder giving the notice (i) the name and address, as they appear on the Corporations books, of such stockholder and (ii) the class and number of the shares of the Corporation which are beneficially owned by such stockholder. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation. The chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
A stockholders notice shall set forth as to each matter the stockholder proposes to bring before the meeting (i) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (ii) the name and address
of the stockholder proposing such business, (iii) the class and number of shares which are beneficially owned by the stockholder, and (iv) any material interest of the stockholder in such business. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual or special meeting except in accordance with the procedures set forth in this Section 12, provided, however, that nothing in this Section 12 shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting in accordance with said procedure. The chairman of the meeting shall, if the facts warrant, determine and declare that the business was not properly brought before the meeting in accordance with the provisions of this Section 12, and if he shall so determine, he shall so declare to the meeting, and any such business shall not be transacted.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not longer than twenty (20) days. If the stock transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed for the determination of stockholders, (a) the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof, except when (i) the determination has been made through the closing of the transfer books and the stated period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after the record date fixed for the original meeting, in either of which case a new record date shall be determined as set forth herein.
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted resolution.
To the maximum extent permitted by applicable law in effect from time to time, the Corporation shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, shall pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (a) any individual who is a present or former director or officer of the Corporation and who is made a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding, whether or not by or in the right of the Corporation, and whether civil, criminal, administrative, investigative or otherwise, by reason of his or her service in that capacity, or (b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served another corporation, partnership, joint venture, trust, limited liability company, employee benefit plan or any other enterprise as a director, officer, partner, trustee, employee or agent of such corporation, partnership, joint venture, trust, limited liability company, employee benefit plan or other enterprise and who is made a party to, or threatened to be made a party to, any threatened, pending or completed action, suit or proceeding by reason of his or her service in that capacity. To the maximum extent permitted by applicable law, the indemnification provided herein shall
include expenses (including attorneys fees), judgments, fines and amounts paid in settlement. The Corporation may, with the approval of its Board of Directors, provide such indemnification and advance for expenses to a person who served a predecessor of the Corporation in any of the capacities described in (a) or (b) above and to any employee or agent of the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article XI, nor the adoption or amendment of any other provision of the charter of the Corporation or these Bylaws inconsistent with this Article XI, shall apply to or affect in any respect the applicability of the preceding paragraph with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.
The rights to indemnification and advancement of expenses set forth in this Article XI shall not be exclusive of any other right which any director, officer or non-officer employee may have or hereafter acquire under any statute, provision of the charter of the Corporation or these Bylaws, agreement, vote of stockholders or otherwise.
The Corporation may maintain insurance, at its expense, to protect itself and any director, officer or non-officer employee against any liability of any character asserted against or incurred by the Corporation or any such director, officer or non-officer employee, or arising out of any such persons corporate status, whether or not the Corporation shall have the power to indemnify such person against such liability under the general laws of the State of Maryland or the provisions of this Article XI.
These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of the holders of a majority of the issued and outstanding shares of the stock of the Corporation entitled to vote thereon at any regular or special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new bylaws
shall have been stated in the notice of such regular or special meeting.
EXHIBIT 10.1
OSIRIS THERAPEUTICS, INC.
AMENDED AND RESTATED 2006 OMNIBUS PLAN
(as amended and restated effective May 27, 2010)
1.1 Purpose . This Osiris Therapeutics, Inc. 2006 Omnibus Plan (the Plan ) is intended to secure for Osiris Therapeutics, Inc. (the Company) and its stockholders the benefits of the incentive inherent in common stock ownership by the employees of the Company and its subsidiaries and directors of the Company who are largely responsible for the Companys future growth and continued financial success and to afford such persons the opportunity to obtain or increase their proprietary interest in the Company on a favorable basis and thereby have an opportunity to share in its success.
1.2 Effective Date . This Plan (as initially adopted by the Board and ratified by the stockholders) initially became effective on April 17, 2006, and was amended and restated in its entirety, effective June 4, 2008, to, among other things, be exempt from (or, where applicable, to comply with) the requirements of Section 409A of the Code and to incorporate certain other amendments and clarifications. This Plan has been amended and restated in its entirety, effective May 27, 2010, to increase the aggregate number of shares of common stock that may be issued at any time pursuant to awards granted hereunder and to extend the termination date, after which awards may no longer be granted hereunder.
1.3 Definitions . Throughout this Plan, the following terms shall have the meanings indicated:
2.1 Committee Administration . This Plan and the Benefits awarded hereunder shall be interpreted, construed and administered by the Committee in its sole discretion. An Eligible Person (or other person, such as a beneficiary) eligible for Benefits under the Plan may appeal to the Committee in writing any decision or action of the Committee with respect to the Plan that adversely affects the Eligible Person (or other person). Upon review of such appeal and in any other case where the Committee has acted with respect to the Plan, the interpretation and construction by the Committee of any provisions of this Plan or of any Benefit shall be conclusive and binding on all parties.
2.2 Committee Composition . The Committee shall consist of not less than two persons who shall be members of the Board and shall be subject to such terms and conditions as the Board may prescribe. Each Committee member shall be a non employee director within the meaning of Rule 16b-3 promulgated under the Exchange Act and shall qualify to make determinations as to executive compensation under the listing requirements of the NASDAQ Global Market (or whatever other exchange the Common Stock may be listed for trading from time to time). Once designated, the Committee shall continue to serve until otherwise directed by the Board. From time to time, the Board may increase the size of the Committee and appoint additional members thereof, remove members (with or without cause) and appoint new members in substitution therefor, fill vacancies however caused and remove all members of the Committee.
A majority of the entire Committee shall constitute a quorum, and the action of a majority of the members present at any meeting at which a quorum is present shall be deemed the action of the Committee. In addition, any decision or determination reduced to writing and signed by all of the members of the Committee shall be fully as effective as if it had been made by a majority vote at a meeting duly called and held. Subject to the provisions of this Plan and the Companys bylaws, and to any terms and conditions prescribed by the Board, the Committee
may make such additional rules and regulations for the conduct of its business as it shall deem advisable. The Committee shall hold meetings at such times and places as it may determine.
2.3 Committee Powers . The Committee shall have authority to award Restricted Stock and to grant Options, SARs, Performance Shares and Performance Units pursuant to or as evidenced by an Agreement providing for such terms (not inconsistent with the provisions of this Plan) as the Committee may consider appropriate. Such terms shall include, without limitation, as applicable, the number of shares, the exercise price, the medium and time of payment, the term of each award and any vesting requirements, if any, and may include conditions (in addition to those contained in this Plan) on the exercisability of all or any part of an Option or SAR, the terms and conditions applicable to Performance Shares and Performance Units or on the transferability or forfeitability of Restricted Stock. Notwithstanding any such conditions, the Committee may, in its discretion, accelerate the time at which any Option or SAR may be exercised or the time at which Restricted Stock may become transferable or nonforfeitable. In addition, the Committee shall have complete discretionary authority to prescribe the form of Agreements; to adopt, amend and rescind rules and regulations pertaining to the administration of the Plan; and to make all other determinations necessary or advisable for the administration of this Plan. The express grant in the Plan of any specific power to the Committee shall not be construed as limiting any power or authority of the Committee. All expenses of administering this Plan shall be borne by the Company. The Committee shall have the authority to delegate from time to time its powers hereunder, in whole or in part, in accordance with and subject to compliance with all applicable laws, rules and regulations.
2.4 Receipt of Benefits by Committee Members . Members of the Committee shall be eligible to receive Benefits under this Plan; provided, however, that the Committee may, but shall not be required to, seek ratification of the Board or members thereof, on such terms as the Committee shall determine, in respect of any such Benefits so awarded.
2.5 Good Faith Determinations . No member of the Committee or other member of the Board shall be liable for any action or determination made in good faith with respect to this Plan or any Benefit granted hereunder.
3.1 Eligibility . The Committee shall from time to time determine and designate Employees and Non-Employee Directors as Eligible Persons who shall receive Benefits under this Plan and the number of Options, Stock Appreciation Rights, Performance Shares, Performance Units and shares of Restricted Stock to be awarded to each such Eligible Person or the formula or other basis on which such Benefits shall be awarded to Eligible Persons. In making any such award, the Committee may take into account the nature of services rendered by an Eligible Person, commissions, fees or other compensation earned by the Eligible Person, the capacity of the Eligible Person to contribute to the success of the Company and other factors that the Committee may consider relevant.
3.2 Types of Benefits . Benefits under this Plan may be granted in any one or any combination of (a) Options, (b) Stock Appreciation Rights, (c) Performance Shares, (d) Performance Units, and (e) Restricted Stock, as described in this Plan. The Committee may (x) award Benefits in tandem so that acceptance of or exercise of one Benefit cancels the right of an Eligible Person to another and (y) award Benefits in any combination or combinations and subject to any condition or conditions consistent with the terms of this Plan that the Committee in its sole discretion may consider appropriate.
3.3 Shares Subject to this Plan . Subject to the provisions of Section 4.1(e) (relating to adjustment for changes in Common Stock), the maximum number of shares that may be issued under this Plan shall not exceed in the aggregate 1,950,000 shares of Common Stock. The maximum number of shares authorized under this Plan shall only be increased with approval of the stockholders of the Company (except as provided in Section 4.1(e)). Such shares may be authorized and unissued shares or authorized and issued shares that have been reacquired by the Company. If any Benefits awarded under this Plan shall for any reason terminate or expire, or be surrendered or forfeited, without having been exercised in full, or without shares otherwise issuable thereunder having been issued for any reason, then the shares not purchased or issued under such Benefits shall be available again for grant hereunder, provided, however, that insofar as an SAR is exercised and settled for cash, the number of shares in respect of which the SAR is so exercised and settled shall not again be available for grant hereunder. Anything in this Plan to the contrary notwithstanding, in no event shall any Eligible Person receive in any calendar year Benefits under this Plan involving more than 125,000 shares of Common Stock (subject to adjustment as provided in Section 4.1(e)).
3.4 $100,000 Limitation . Except as provided elsewhere in this Section, the Committee shall not grant an ISO to, or modify the exercise provisions of an outstanding ISO for, any person who, at the time of grant or modification, as applicable, would thereby hold ISOs issued by the Company if the aggregate Fair Market Value (determined as of the respective dates of grant and modification of each Option) of the Option Shares underlying such ISOs as are exercisable for the first time during any calendar year would exceed $100,000 (or such other limitation as may be prescribed by the Code from time to time). The foregoing restriction on modification of outstanding ISOs shall not preclude the Committee from modifying an outstanding ISO if, as a result of such modification and with the consent of the holder, such Option no longer constitutes an ISO. Furthermore, if the $100,000 limitation (or such other limitation prescribed by the Code) described in this Section is exceeded, then the ISO, the granting or modification of which resulted in exceeding such limitation, shall be treated as an ISO up to the limitation, and the excess shall be treated as a NQSO.
4.1 Grant; Terms and Conditions . The Committee, in its discretion, may from time to time grant ISOs or NQSOs, or both, to any Eligible Person; provided that ISOs shall only be granted to Employees. Each Eligible Person who is granted an Option shall receive an Option Agreement from the Company in a form specified by the Committee and containing such
provisions, consistent with this Plan, as the Committee, in its sole discretion, shall determine at the time the Option is granted.
Subject to any action that may otherwise be required on the part of the stockholders of the Company, if the Company is the surviving corporation in any merger, consolidation, sale, transfer, acquisition, tender offer or exchange offer which does not result in a Change of Control, then each outstanding Option, Stock Appreciation Right, Restricted Stock and Performance Share award shall pertain to and apply to the securities or other consideration that a holder of the number of shares of Common Stock subject to the Option or to which the Stock Appreciation Right or Restricted Stock or Performance Share relates would have been entitled to receive in such transaction.
Notwithstanding the foregoing, in no event shall any Option or be exercisable after the date of termination of the exercise period of such Option.
In the event of a change in the Common Stock as presently constituted, which change is limited to a change of all of the authorized shares with par value into the same number of shares with a different par value or without par value, the shares resulting from any such change shall be deemed to be the Common Stock within the meaning of this Plan.
The grant of an Option, Stock Appreciation Right or other Benefit pursuant to this Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge or to consolidate or to dissolve, liquidate, sell or otherwise transfer all or any part of its business or assets.
The provisions of this Section 4.1(e) shall be limited in respect of ISOs to the extent necessary to comply with the applicable provisions of Code Section 424(a).
4.2 Other Terms and Conditions . Through the Option Agreements authorized under this Plan, the Committee may impose such other terms and conditions, not inconsistent with the terms hereof, on the grant or exercise of Options, as it deems advisable.
5.1 Grant of Stock Appreciation Rights . The Committee, in its discretion, may from time to time grant Stock Appreciation Rights to Eligible Persons under this Plan. Such Stock Appreciation Rights may, but need not, be granted in conjunction with an Option grant.
5.2 Exercise . Stock Appreciation Rights shall entitle the holder, upon exercise thereof in whole or in part, to receive payment in the amount and form determined pursuant to Section 5.3(b). The exercise of Stock Appreciation Rights shall result in a termination of the Stock Appreciation Rights with respect to the number of shares covered by the exercise and, if granted in conjunction with an Option, shall also result in a termination of the related Option with respect to the number of shares covered by the exercise. The exercise period of a Stock Appreciation Right may be extended in accordance with Section 4.1(g) (as applied to Stock Appreciation Rights instead of Options as otherwise therein provided), provided that such extension is not beyond the latest date at which the Stock Appreciation Right would have otherwise expired.
5.3 Terms and Conditions . Stock Appreciation Rights granted under this Plan to Eligible Persons shall be evidenced by SAR Agreements, which shall be in such form and contain such provisions, consistent with this Plan, as the Committee, in its sole discretion, shall determine at the time the Stock Appreciation Right is granted.
5.4 Effect on Related Stock Option . The number of shares of Common Stock with respect to which Stock Appreciation Rights are exercised (rather than the number of shares issued by the Company upon such exercise) shall be deemed for the purpose of Section 3.3 to have been issued under an Option granted pursuant to this Plan and shall not thereafter be available for the granting of further Benefits under this Plan.
5.5 No Rights as a Stockholder . Holders of Stock Appreciation Rights hereunder shall have no rights as stockholders in respect thereof. No adjustments shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as provided in Section 4.1(e), as applied to Stock Appreciation Rights.
6.1 Award of Performance Shares . The Committee shall have the authority to grant Performance Shares to any Eligible Person, subject to the maximum number of shares of Common Stock that may be issued under this Plan pursuant to Section 3.3, above. The Committee shall determine the Eligible Persons to whom, and the time or times at which, Performance Shares shall be awarded, the number of Performance Shares to be included in each award, the duration of the period (the Performance Period) during which, and the conditions under which, receipt of the shares of Common Stock will be deferred, and the other terms and conditions of the award in addition to those set forth in Section 6.2. The provisions of Performance Share awards need not be the same with respect to each grantee, and such awards to individual grantees need not be the same in subsequent years.
6.2 Terms and Conditions . Performance Shares awarded pursuant to this Article VI shall be subject to the following terms and conditions and such other terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem desirable:
6.3 Individual Limit . The maximum number of shares of Common Stock that may be subject to Performance Share awards granted to any individual Eligible Person during any calendar year shall be 50,000 shares (subject to any increase or decrease pursuant to the adjustment provisions of this Plan).
6.4 Deferrals . The Committee, in its discretion, may provide an opportunity for Eligible Persons to defer Performance Share awards beyond the scheduled payment date described in Section 6.2(e). In such event, the deferral election and deferred payout shall comply with the requirements of Section 409A of the Code. Accordingly, (i) the deferral election shall
be made no later than twelve (12) months prior to the end of the Performance Period (or six months prior to the end of the Performance Period if the Performance Shares qualify as performance-based compensation within the meaning of Section 409A), (ii) the deferred payout date shall be a specified date or other permissible payment event under Section 409A that is at least five (5) years after the date described in Section 6.2(e), and (iii) in the case of an Eligible Person who is a specified employee within the meaning of Section 409A of the Code and such deferred payment is made on account of his or her separation from service with the Company, the payment is made at least six (6) months following such separation from service.
7.1 Award of Performance Units . The Committee shall have the authority to grant Performance Units to any Eligible Person, subject to Section 3.3. The Committee shall determine the Eligible Person to whom, and the time or times at which, Performance Units shall be awarded, the number of Performance Units to be included in each award, the duration of the period (the Performance Cycle) during which, and the conditions under which, a grantees right to Performance Units will be vested, and the other terms and conditions of the award in addition to those set forth in Section 7.2. A Performance Unit shall have a fixed dollar value. The provisions of Performance Unit awards need not be the same with respect to each grantee, and such awards to individual grantees need not be the same in subsequent years.
7.2 Terms and Conditions . The Performance Units awarded pursuant to this Article VII shall be subject to the following terms and conditions and such other terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem desirable:
7.3 Individual Limit . The maximum dollar amount of Performance Unit awards that may be granted to any individual during any calendar year shall be $4,000,000.
7.4 Deferrals . The Committee, in its discretion, may provide an opportunity for Eligible Persons to defer Performance Unit awards beyond the scheduled payment date described in Section 7.2(d). In such event, the deferral election and deferred payout shall comply with the requirements of Section 409A of the Code. Accordingly, (i) the deferral election shall be made no later than twelve (12) months prior to the end of the Performance Period (or six months prior to the end of the Performance Period if the Performance Units qualify as performance-based compensation within the meaning of Section 409A), (ii) the deferred payout date shall be a specified date or other permissible payment event under Section 409A that is at least five (5) years after the date described in Section 7.2(d), and (iii) in the case of an Eligible Person who is a specified employee within the meaning of Section 409A of the Code and such deferred payment is made on account of his or her separation from service with the Company, the payment is made at least six (6) months following such separation from service.
8.1 Restricted Stock . The Committee, in its discretion, may from time to time award and direct the Company to issue and transfer Restricted Stock to any Eligible Person eligible to receive Benefits under this Plan. Each Eligible Person who is awarded Restricted Stock subject to continuing restrictions shall receive a Restricted Stock Agreement from the Company in a form specified by the Committee and containing the terms and conditions, consistent with this Plan, as the Committee, in its sole discretion, shall determine at the time the award is made.
Restricted Stock awarded to Eligible Persons may not be sold, transferred, pledged or otherwise encumbered during the Restriction Period. The Eligible Person shall otherwise have the entire beneficial ownership of the Restricted Stock awarded to him or her, including the right to receive dividends and the right to vote such Restricted Stock.
If an Eligible Person ceases to be employed by, or serve as a Non-Employee Director of, the Company prior to the expiration of the Restriction Period, or if the specified conditions are not met, then he or she shall forfeit all of his or her Restricted Stock with respect to which the Restriction Period has not yet expired and those shares of Common Stock must be immediately returned to the Company; provided, however, that the Restricted Stock Agreements, in the discretion of the Committee and pursuant to such terms and conditions as it may impose, may provide: (1) that, if such Eligible Persons employment or service terminates for any reason other than conduct that in the judgment of the Committee involves dishonesty or action by the Eligible Person that is detrimental to the best interests of the Company, then the Restricted Stock or any related compensation deferral or a portion thereof shall not be forfeited; (2) that, if such Eligible Persons employment or service terminates on account of total and permanent disability, then the Eligible Person shall not forfeit his or her Restricted Stock or any related compensation deferral or a portion thereof; and (3) that, if such Eligible Person dies while employed by, or serving as a Non-Employee Director of, the Company, then his or her Restricted Stock or any related compensation deferral or a portion thereof is not forfeited. In addition, the Committee shall, in accordance with its authority under Section 2.3 hereof, have the power to make any determinations as to the lapse of restrictions in respect of any Restricted Stock upon the occurrence of any event described above.
Subject to Section 10.10, each Eligible Person who is awarded Restricted Stock may, but need not, be issued a stock certificate in respect of such shares of Restricted Stock. Each certificate registered in the name of an Eligible Person, if any, shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to such award as specifically set forth in the Restricted Stock Agreement.
The Committee shall require that any stock certificate issued in the name of an Eligible Person representing shares of Restricted Stock be held in the custody of the Company until the expiration of the Restriction Period applicable to such Restricted Stock and that, as a condition of such issuance of a certificate for Restricted Stock, the Eligible Person shall have delivered a stock power, endorsed in blank, relating to the shares covered by such certificate. In no event shall the Restriction Period end prior to the payment, or the making by the Eligible Person to the Company of adequate provision for the payment, of the amount of any federal, state or local income or employment tax withholding that may be required with respect to the Restricted Stock.
During the Restriction Period, the individual who owns Restricted Stock shall have the right to vote shares of Restricted Stock and to receive any dividends or other distributions paid on such shares, subject to any restrictions deemed appropriate by the Committee.
If any change is made in the Common Stock by reason of any merger, consolidation, reorganization, recapitalization, stock dividend, split up, combination of shares, exchange of shares, change in corporate structure, or otherwise, then any shares received by an Eligible
Person with respect to Restricted Stock shall be subject to the same restrictions applicable to such Restricted Stock and the certificates representing such shares shall be deposited with the Company.
10.1 Withholding Taxes . An Eligible Person granted Options, Restricted Stock, Stock Appreciation Rights, Performance Shares or Performance Units under this Plan shall be conclusively deemed to have authorized the Company to withhold from the salary, commissions, fees or other compensation of such Eligible Person funds in amounts or property (including Common Stock) in value equal to any federal, state and local income, employment or other withholding taxes applicable to the income recognized by such Eligible Person and attributable to the Options, Option Shares, Restricted Stock, Stock Appreciation Rights, Performance Shares
or Performance Units as, when and to the extent, if any, required by law; provided, however, that, in lieu of the withholding of federal, state and local taxes as herein provided, the Company may require that the Eligible Person (or other person exercising such Option, Stock Appreciation Rights, Performance Shares or Performance Units or holding such Restricted Stock) pay the Company an amount equal to the federal, state and local withholding taxes on such income at the time such withholding is required or such other time as shall be satisfactory to the Company.
10.2 Amendment, Suspension, Discontinuance or Termination of Plan . The Committee may from time to time amend, suspend or discontinue this Plan or revise it in any respect whatsoever for the purpose of maintaining or improving the effectiveness of this Plan as an incentive device, for the purpose of conforming this Plan to applicable governmental regulations or to any change in applicable law or regulations or for any other purpose permitted by law; provided, however, that no such action by the Committee shall adversely affect any Benefit theretofore granted under this Plan without the consent of the holder so affected; and provided further that the Committee may not materially increase the number of shares of Common Stock authorized under Section 3.3 of this Plan or materially modify this Plans requirements as to eligibility for participation or materially increase the benefits accruing to participants under this Plan, in any such case without the approval of the stockholders of the Company. Unless sooner terminated by the Committee, this Plan will terminate on May 27, 2020; it being acknowledged however, for the avoidance of doubt, that any awards granted or made prior to any termination will not be affected thereby.
10.3 Governing Law . This Plan shall be governed by, and construed in accordance with, the laws of the State of Delaware (without giving effect to principles of conflict of laws); provided, however, that if and in the event of the consummation of the merger (the Merger) of Company with and into Osiris Maryland, Inc., a Maryland corporation, as survivor (the Surviving Company), this Plan shall thereupon be governed by, and construed in accordance with, the laws of the State of Maryland (without giving effect to principles of conflict of laws);.
10.4 Designation . This Plan may be referred to in other documents and instruments as the Osiris Therapeutics, Inc. Amended and Restated 2006 Omnibus Plan.
10.5 Indemnification of Committee . In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Company against the reasonable expenses, including attorneys fees, actually and necessarily incurred in connection with the defense of any investigation, action, suit or proceeding, or in connection with any appeal therefrom, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with this Plan or any Benefit, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in or dismissal or other discontinuance of any such investigation, action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such investigation, action, suit or proceeding that such Committee member is liable for negligence or misconduct in the performance of his or her duties; provided that, within 60 days after institution of any such investigation, action, suit or proceeding, a Committee member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same.
10.6 Reservation of Shares . The Company shall at all times during the term of this Plan, and so long as any Benefit shall be outstanding, reserve and keep available (and will seek or obtain from any regulatory body having jurisdiction any requisite authority in order to issue) such number of shares of its Common Stock as shall be sufficient to satisfy the requirements of this Plan. Inability of the Company to obtain from any regulatory body of appropriate jurisdiction authority considered by the Company to be necessary or desirable to the lawful issuance of any shares of its Common Stock hereunder shall relieve the Company of any liability in respect of the nonissuance or sale of such Common Stock as to which such requisite authority shall not have been obtained.
10.7 Application of Funds . The proceeds received by the Company from the sale of Common Stock pursuant to the exercise of Options will be used for general corporate purposes.
10.8 No Obligation to Exercise . The granting of a Benefit shall impose no obligation upon the holder to exercise or otherwise realize the value of that Benefit.
10.9 Approval of Stockholders . No Benefit granted under this Plan shall be enforceable against the Company unless and until this Plan, insofar as it relates to such Benefit, has been approved or ratified by the stockholders of the Company in the manner and to the extent required by the Exchange Act and the General Corporation Law of the State of Delaware (or following the Merger, the Maryland General Corporation Law).
10.10 Uncertificated Shares . Each Eligible Person who exercises an Option to acquire Common Stock or is awarded Restricted Stock may, but need not, be issued a stock certificate in respect of the Common Stock so acquired. A book entry (i.e., a computerized or manual entry) shall be made in the records of the Company to evidence the issuance of shares of Common Stock to an Eligible Person where no certificate is issued in the name of the Eligible Person. Such Company records, absent manifest error, shall be binding on Eligible Persons. In all instances where the date of issuance of shares may be deemed significant but no certificate is issued in accordance with this Section 10.10, the date of the book entry shall be the relevant date for such purposes.
10.11 Forfeiture for Competition . If a participant in this Plan provides services to a competitor of the Company or any of its subsidiaries, whether as an employee, officer, director, independent contractor, consultant, agent or otherwise, such services being of a nature that can reasonably be expected to involve the skills and experience used or developed by the participant while an Eligible Person, then that participants rights to any Benefits hereunder shall automatically be forfeited, subject to a determination to the contrary by the Committee.
10.12 Successors . This Plan shall be binding upon any and all successors of the Company (including without limitation, if and in the event of the consummation of the Merger, the Surviving Company, which shall then be and become the Company hereunder).
10.13 Employment/Service Rights . Nothing in this Plan or in any Agreement shall confer on any Employee any right to continue in the employ of the Company or any of its subsidiaries or shall interfere in any way with the right of the Company or any of its subsidiaries to terminate such persons employment at any time. Nothing in this Plan or in any Agreement
shall confer on any Non-Employee Director any right to continue to serve as a member of the Board, nor is there any implied agreement or understanding that such Non-Employee Director will be nominated for reelection to the Board.
10.14 Other Actions . Nothing contained in the Plan shall be construed to limit the authority of the Company to exercise its corporate rights and powers, including, but not by way of limitation, the right of the Company to grant options for proper corporate purposes other than under the Plan with respect to any employee or other person, firm, corporation or association.
10.15 Tax Treatment and Characterization . Neither the Company nor any other person represents or warrants to any Plan participant (i) that any Option granted hereunder shall be considered an ISO for applicable tax purposes or (ii) that favorable or desirable tax treatment or characterization will be applicable in respect of any Benefit.
10.16 Legend . The Committee may require each person exercising an Option to represent to and agree with the Company in writing that he or she is acquiring the Option Shares without a view to distribution thereof. In addition to any legend required by this Plan, the stock certificates representing such Option Shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer.
All certificates for Option Shares shall be subject to such stock transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed, any applicable federal or state securities law, and any applicable corporate law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.