robert clayton, et al. v. orthovita, inc., et al. 11-cv...

Case 2:11-cv-03535-CMR Document 25-6 Filed 02/06/12 of 13

EXHIBIT D


IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

: ROBERT CLAYTON, on behalf of himself : and all others similarly situated,

Plaintiff,

v.

ORTHOVITA, INC., et al.,

Defendants.

ADOLPHINA VAN BAREL, individually and on behalf of all others similarly situated, and derivatively on behalf of ORTHOVITA, INC.,

Plaintiff,

v.

ANTHONY KOBLISH, et al.,

Defendants.

: : CIVIL ACTION NO. 11-CV-3535-CMR

: : : :

: : : :

: :

: : CIVIL ACTION NO. 11-3652-CMR : : : : :

: :

NOTICE OF PENDENCY OF CLASS ACTIONS, PROPOSED CLASS ACTION DETERMINATION, PROPOSED SETTLEMENT OF CLASS ACTIONS,

SETTLEMENT HEARING, AND RIGHT TO APPEAR

TO:

ALL PERSONS OR ENTITIES THAT HELD SHARES OF COMMON STOCK OF ORTHOVITA, INC., EITHER OF RECORD OR AS BENEFICIAL OWNERS, AT ANY TIME DURING THE PERIOD BEGINNING ON AND INCLUDING MAY 16, 2011 THROUGH AND INCLUDING JUNE 28, 2011.

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PLEASE READ ALL OF THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THESE ACTIONS. IF THE COURT APPROVES THE PROPOSED SETTLEMENT, YOU WILL BE FOREVER BARRED FROM CONTESTING THE FAIRNESS OF THE PROPOSED SETTLEMENT OR PURSUING THE RELEASED CLAIMS (AS DEFINED HEREIN).

IF YOU HELD OR TENDERED THE COMMON STOCK OF ORTHOVITA, INC. FOR THE BENEFIT OF ANOTHER, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER.

I. WHY YOU HAVE RECEIVED THIS NOTICE

The purpose of this Notice is to tell you about lawsuits (the “Actions,” as defined below) now pending in the United States District Court for the Eastern District of Pennsylvania (the “Court”) and the proposed settlement (the “Settlement”) of those lawsuits. This Notice also informs you of the Court’s certification of a Settlement Class (as defined below), solely for purposes of the Settlement, and notifies you of your right to participate in a hearing to be held on _________, 2012 at __:00 __m. Eastern Standard Time, before the Court at 610 Market Street, Philadelphia, Pennsylvania (the “Settlement Hearing”), (a) to determine whether the Court should approve the Settlement as fair, reasonable, adequate, and in the best interests of the Settlement Class; (b) to determine whether plaintiffs Robert Clayton and Adolphina Van Barel and their respective counsel (together referred to as “Class Counsel”) have adequately represented the interests of the Settlement Class in the Actions; and (c) to consider other matters, including a request by Class Counsel for an award of attorneys’ fees and reimbursement of expenses in the amount up to $925,000.00.

The Court has determined that, for purposes of the Settlement only, the Actions shall be preliminarily maintained as non-opt-out class actions under Federal Rule of Civil Procedure 23(a), (b)(l), and (b)(2) on behalf of a class consisting of all record holders and beneficial owners of common stock of Orthovita, Inc. (“Orthovita”) at any time during the period beginning on and including May 16, 2011, through and including June 28, 2011, and excluding R. Scott Barry, Morris Cheston Jr., Antony Koblish, Mary E. Paetzold, Paul G. Thomas, William E. Tidmore Jr., and Paul T. Touhey Jr. (collectively, the “Individual Defendants”), Orthovita, Inc., Stryker Corporation and Owl Acquisition Corporation (with the Individual Defendants, the “Defendants”), members of the immediate family of any Defendant, their subsidiary companies, affiliates, any entity in which a Defendant has or had a controlling interest, directors or officers of Defendant entities, and the legal representatives of any Defendant (the “Settlement Class”).

At the Settlement Hearing, the Court will consider, among other things, whether the Settlement Class should be certified pursuant to Federal Rule of Civil Procedure 23. If, for any reason, the Settlement Class is not approved, it is understood that the Settlement Class provisionally certified shall be deemed to have been decertified and Defendants may oppose any future request for class certification that may ensue.

This Notice describes the rights you may have under the Settlement and what steps you may, but are not required to, take in relation to the Settlement and the Settlement Hearing.

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If the Court approves the Settlement, the parties to the Actions will ask the Court at the Settlement Hearing to enter an Order and Final Judgment dismissing the Actions with prejudice on the merits.

THE COURT HAS NOT DETERMINED THE MERITS OF ANY OF THE CLAIMS BROUGHT IN THE LAWSUITS OR OF ANY DEFENSES TO THOSE CLAIMS. THE RECITATION OF FACTS CONTAINED IN THIS NOTICE IS BASED ON STATEMENTS OF THE PARTIES AND SHOULD NOT BE UNDERSTOOD AS AN EXPRESSION OF ANY OPINION OF THE COURT AS TO THE MERITS OF ANY OF THE CLAIMS OR DEFENSES RAISED BY ANY OF THE PARTIES AND THEREFORE DOES NOT CONSTITUTE FINDINGS OF THE COURT, NOR DOES THIS NOTICE IMPLY THAT THERE WOULD BE ANY FINDING OF A VIOLATION OF LAW OR THAT ANY RECOVERY COULD HAVE BEEN HAD IF THE LAWSUITS HAD NOT SETTLED.

II. BACKGROUND OF THE LAWSUITS

The Actions arise out of a merger agreement between and among Orthovita and Stryker Corporation and Owl Acquisition Corporation (together “Stryker”), pursuant to which Stryker acquired all of the outstanding shares of Orthovita in an all-cash transaction.

On or about May 16, 2011, Orthovita announced a cash tender offer by which Stryker, through a subsidiary, would acquire all of the common stock of Orthovita for $3.85 per share in cash, which represented a total value of approximately $316 million (the “Transaction”).

On or about May 26, 2011, Andrew T. Thorn commenced a lawsuit captioned Andrew T. Thorn, on behalf of himself and all others similarly situated and derivatively on behalf of Orthovita, Inc., v. Antony Koblish, William E. Tidmore, Jr., R. Scott Barry, Paul G. Thomas, Morris Cheston, Jr., Mary E. Paetzold, Paul T. Touhey, Jr., Stryker Corporation and Owl Acquisition Corporation, and Orthovita, Inc., in the Court of Common Pleas of Montgomery County, Pennsylvania, Case No. 2011-11644 (the “Thorn Action”), alleging that certain defendants breached their fiduciary duties and/or aided and abetted a breach of fiduciary duties and committed corporate waste in connection with the Transaction.

On or about May 27, 2011, Orthovita caused to be filed a Solicitation/Recommendation Statement (the “Recommendation Statement”) under Section 14(d)(4) of the Securities Exchange Act of 1934 (the “Exchange Act”) that, among other things, summarized the Transaction and provided an account of the events leading up to the agreement by which Stryker offered to purchase all outstanding shares of Orthovita at a price of $3.85 per share, along with a summary of the valuation analyses conducted by the Orthovita board of directors’ financial advisor, J.P. Morgan Securities LLC (“J.P. Morgan”).

On May 31, 2011, Robert Clayton commenced an action captioned Robert Clayton on behalf of himself and all others similarly situated, v. Orthovita, Inc, R. Scott Barry, Morris Cheston, Jr., Mary E. Paetzold, Paul G. Thomas, William E. Tidmore, Jr., Paul T. Touhey, Jr., Antony Koblish, Stryker Corporation, and Owl Acquisition Corporation , Case No. 11-3535-CMR (the “Clayton Action”), in the Court alleging violations of Section 14(d)(4), 14(e) and 20(a) of the

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Exchange Act, and that certain defendants breached their fiduciary duties and/or aided and abetted a breach of fiduciary duties in connection with the Transaction.

On or about June 6, 2011, Adolphina Van Barel filed a complaint in the Court captioned Adolphina Van Barel, Individually and on behalf of all others similarly situated, and derivatively on behalf of Orthovita, Inc., v. Antony Koblish, William Tidmore, Morris Cheston, Mary Paetzold, Paul Touhey, Paul Thomas, R. Scott Barry, Orthovita, Inc., Stryker Corporation And Owl Acquisition Corporation (the “Van Barel Action,” and, together with the Clayton Action, the “Actions”), Civil Action No. 11-3652, alleging violations of Section 14(d)(4) and 14(e) of the Exchange Act and that certain defendants breached their fiduciary duties and/or aided and abetted a breach of fiduciary duties in connection with the Transaction and, on or about June 13, 2011, amended her complaint.

Counsel for plaintiffs and defendants in the Thorn Action, the Clayton Action, and the Van Barel Action engaged in good faith, arm’s-length negotiations concerning a possible settlement of the Actions and, as a result of those negotiations, the parties entered into a Memorandum of Understanding (the “MOU”) dated as of June 13, 2011, containing agreed-upon terms for the settlement of all three actions and containing other provisions.

On or about June 14, 2010, Orthovita filed Amendment No. 5 to the Recommendation Statement (the “Revised Disclosures”) making certain further and revised disclosures in connection with the Transaction in response to comments made by the Securities and Exchange Commission and further describing the background of the Transaction and providing additional information regarding other aspects of the Transaction.

Following entry into the MOU and the filing of the Revised Disclosures, plaintiffs in the Actions, with the cooperation of Defendants, conducted confirmatory discovery, which was completed within a reasonable period of time following the entry into the MOU, after which plaintiffs confirmed that the settlement of the Actions on the terms reflected in the MOU and Stipulation of Settlement based thereon was, in Class Counsel’s opinion, fair, reasonable, and adequate.

In addition to the Actions pending before the Court, the Settlement described in this notice will resolve and finally end the Thorn Action and another action filed in the Court of Common Pleas of Montgomery County, Pennsylvania, captioned Warren Tsark, derivatively on behalf of Orthovita, Inc., v. Antony Koblish, William E. Tidmore, Jr., R. Scott Barry, Paul G. Thomas, Morris Cheston, Jr., Mary E. Paetzold, Paul T. Touhey, Jr., Owl Acquisition Corporation , Case No. 2011-15722 (filed on June 8, 2011), which also generally alleges breaches of fiduciary duty against the individual members of the Orthovita Board and aiding and abetting claims against Stryker.

III. THE SETTLEMENT AND YOUR PARTICIPATION IN THE SETTLEMENT

In consideration for the Settlement and the release of all Released Claims (see Section IV below), Defendants have taken the following actions:

Defendants made the Revised Disclosures (as described above), which address issues identified by Class Counsel during discussions between Class Counsel and counsel for the Defendants. The

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questions raised by Class Counsel, about which Defendants made Revised Disclosures, included, but were not limited to, the background of the negotiations leading up to the Merger and the Merger Agreement; the business reasons for the Merger; the potential strategic alternatives available to Orthovita and considered by the Orthovita Board and its advisors; and certain financial projections, data, inputs, methodologies, and analyses underlying the financial valuation work done by Orthovita’s financial advisor.

Defendants have agreed that all costs of providing this Notice to holders of Orthovita common stock to whom the Notice is directed will be paid by Orthovita, or its successor(s) in interest, and in no event shall Plaintiffs, Class Counsel, or any member of the Settlement Class be responsible for any notice costs or expenses.

If you are a Class member, you will be bound by any judgment entered in the Actions whether or not you actually receive this Notice. You may not opt out of the Settlement Class.

IV. RELEASES

The Stipulation of Settlement dated ________, 2011 (the “Stipulation”) provides that, subject to Court approval of the Settlement, for good and valuable consideration, the Actions shall be dismissed on the merits with prejudice as to all Defendants and against all members of the Settlement Class, and:

A. Each and every member of the Settlement Class, on his, her or its own behalf (collectively, the “Releasing Parties”) hereby unconditionally, absolutely and irrevocably releases and discharges Defendants, and each of them, along with his, her and/or its respective past and present affiliates, employers, employees, agents, consultants, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial, legal, and other advisors, investment bankers, underwriters, lenders, commercial bankers, entities providing fairness opinions, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, limited liability companies, members, joint ventures, personal or legal representatives, estates, administrators, predecessors, successors, or assigns and any other representatives of any of these persons and entities (collectively, the “Released Persons”) with respect to all manner of actions, causes of action, suits, debts, accounts, promises, warranties, damages and consequential damages, agreements, costs, expenses, claims (including but not limited to any claims arising under federal, state, foreign or common law, including the federal securities laws and any state disclosure law), or demands whatsoever, of any kind or nature whether known or unknown, liquidated or unliquidated, disputed or undisputed, contingent, inchoate or matured, in law or in equity (other than those obligations arising out of the MOU and this Stipulation) which the Releasing Parties now have or ever had against the Released Persons upon or by reason of any manner, cause or thing whatsoever on or at any time prior to the date of this Stipulation arising out of or relating in any way to his, her or its ownership of shares of Orthovita and all claims concerning, arising out of, or relating to the facts, circumstances, events, and transactions that are alleged or that could have been alleged in the Actions (collectively, the “Released Claims”), it being the

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intention of the Releasing Parties to reserve nothing whatsoever hereunder as to the Released Claims and to assure the Released Persons, and each of them, their peace and freedom from each and every of the Released Claims of whatever character and description. Without limiting the foregoing, this release shall cover any and all claims under the federal securities laws, including claims related to the Recommendation Statement and any amendments or supplements thereto, filed in connection with the Transaction, provided, however, that nothing contained in this paragraph shall be deemed or construed to be a release, waiver or discharge of the terms and conditions of this Stipulation or the parties’ rights hereunder and further provided that the Released Claims shall not include any properly perfected claims for appraisal pursuant to Subchapter 15D of the Pennsylvania Business Corporation Law of 1988, as amended.

B. The Released Persons hereby unconditionally, absolutely and irrevocably release and discharge plaintiffs in the Actions, and each of them, and their respective attorneys, representatives, heirs, successors and assigns with respect to all manner of actions, causes of action, suits, debts, accounts, promises, warranties, damages and consequential damages, agreements, costs, expenses, claims or demands whatsoever, of any kind or nature whether known or unknown, liquidated or unliquidated, disputed or undisputed, contingent, inchoate or matured, in law or in equity (other than those obligations arising out of the MOU and this Stipulation) which they now have or ever had against them upon or by reason of any manner, cause or thing whatsoever on or at any time prior to the date of this Stipulation arising out of or relating in any way to the institution, prosecution, assertion, settlement or resolution of the Actions or the Released Claims, provided that nothing contained in this paragraph shall be deemed or construed to be a release, waiver or discharge of the terms and conditions of this Stipulation or the parties’ rights hereunder.

C. Releases Include Unknown Claims. Except as explicitly set forth in Sections 6 and 7 of the Stipulation, the parties understand and agree that the releases set forth in those sections are intended to and do include any and all claims of every nature and kind whatsoever (whether known, unknown, suspected, or unsuspected) that the parties now have, had, or may have, individually or collectively against each other up through and including the execution of this Stipulation and that arise out of, are connected with, or in any way relate to the subject matter of the releases and the parties further acknowledge that they may hereafter discover facts different from or in addition to those that they now know or believe to be true with respect to the Released Claims and agree that, in such event, this Stipulation and the releases contained in it shall nevertheless be and remain effective in all respects, notwithstanding such different or additional facts. Accordingly, with respect to any and all released claims, each party hereby waives the provisions, rights and benefits of California Civil Code § 1542 (to the extent it applies herein), which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT

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TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Each party hereto expressly waives, and shall be deemed to have waived, and by operation of the Final Court Approval shall have waived any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, that is similar or comparable in effect to California Civil Code § 1542.

V. REASONS FOR THE SETTLEMENT

Class Counsel have reviewed and analyzed the facts and circumstances relating to the claims asserted in the Actions, as known by them to date, including by conducting numerous discussions with counsel for Defendants; taking the depositions of Orthovita’s President and a member of the Orthovita Board of Directors and by obtaining and analyzing over thousands of pages of non-public documents produced by Defendants, as well as documents obtained through public sources. Based upon this investigation, plaintiffs in the Actions have decided to enter into the Stipulation and settle the Actions, after taking into account, among other things, (1) the benefits to the Settlement Class achieved by the litigation of the Actions and the Settlement; (2) the risks of continued litigation; (3) the conclusion reached by Class Counsel that the Settlement upon the terms and provisions set forth herein is fair, reasonable, adequate, and in the best interests of the Settlement Class and will result in a material benefit to them; and (4) that plaintiffs and Class Counsel were provided with the opportunity to obtain further discovery to confirm their decision to settle the Actions.

Defendants have denied, and continue to deny, that they have committed or aided and abetted the commission of any breach of duty or violation of the Exchange Act or any other law or engaged in any of the wrongful acts alleged in the Actions, and, to the contrary, expressly maintain that they diligently and scrupulously complied with their fiduciary and other legal duties, to the extent such duties exist, and are entering into the Settlement solely because the settlement of the claims will eliminate the burden, expense, and uncertainties inherent in further litigation.

VI. APPLICATION FOR ATTORNEYS’ FEES, AWARD, AND EXPENSES

Class Counsel in the Actions intend to petition the Court for an award of attorneys’ fees and expenses (including costs and disbursements) in an amount up to $925,000.00 in connection with the Actions to be paid by Orthovita or its successor(s) in interest. The Parties have not reached an agreement with respect to attorneys’ fees and expenses. In the event the Parties are unable to reach an agreement on attorneys’ fees and expenses, Plaintiffs retain the right to apply to the Court for an award of attorneys’ fees and expenses, and Defendants retain the right to oppose the amount of any such application for attorneys’ fees and expenses. No fees or expenses shall be paid to Plaintiffs’ Counsel pursuant to the Settlement in the absence of approval by the Court of a complete release of all Released Parties.

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The parties have agreed that resolution of a petition for an award of attorneys’ fees and expenses is not a precondition to this Settlement or to the dismissal with prejudice of the Actions, or the Thorn Action or the Tsark Action, and the Court can consider and rule upon the fairness, reasonableness, and adequacy of the Settlement independently of any award of attorneys’ fees and expenses. The parties have also agreed that any dispute regarding the allocation or division of any fees and expenses among counsel for the various named plaintiffs would have no effect on the Stipulation or the Settlement.

VII. CLASS ACTION DETERMINATION

The Court has ordered that, for purposes of the Settlement only, the Actions shall be preliminarily maintained as class actions pursuant to Federal Rule of Civil Procedure 23(a), (b)(l), and (b)(2), with the Settlement Class defined as set forth above.

Inquiries or comments about the Settlement may be directed to the attention of Class Counsel as follows:

Juan Monteverde, Esquire Faruqi & Faruqi, LLP 369 Lexington Avenue, 10th Fl. New York, NY 10017 Tel.: (212) 983-9330 Fax: (212) 983-9331

VIII. SETTLEMENT HEARING

The Court has scheduled a Settlement Hearing to held on ___________, 2012 at __:00 _.m. Eastern Standard Time, in Courtroom ____, of the United States District Court for the Eastern District of Pennsylvania, 610 Market Street, Philadelphia, Pennsylvania, (a) to determine whether the Court should approve the Settlement as fair, reasonable, adequate, and in the best interests of the Settlement Class; (b) to determine whether plaintiff Robert Clayton and Plaintiff Adolphina Van Barel and Class Counsel have adequately represented the interests of the Settlement Class in the Actions; (c) to consider other matters, including a request by Class Counsel for an award of attorneys’ fees and reimbursement of expenses in an amount up to $925,000.00; and (d) to rule on such other matters as the Court may deem appropriate.

The Court has the right to adjourn the Settlement Hearing or any adjournment thereof, including the consideration of the application for attorneys’ fees, without further notice of any kind other than oral announcement at the Settlement Hearing or any adjournment thereof. The Court also has the right to approve the Settlement at or after the Settlement Hearing with such modification(s) as may be consented to by the parties to the Stipulation and without further notice to the Settlement Class.

IX. RIGHT TO APPEAR AND OBJECT

Any member of the Settlement Class who objects to (a) the terms of the Settlement, (b) the class action determination, (c) the adequacy of representation by the named plaintiffs and Class Counsel, (d) the dismissal with prejudice of the Actions, (e) the judgment to be entered in the

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Actions, and/or (f) the request by Class Counsel for fees and reimbursement of costs and expenses; or otherwise wishes to be heard, may appear in person or by his or her or its attorney at the Settlement Hearing and present evidence or argument that may be proper and relevant.

If you wish to do so, however, you must, not later than fourteen (14) calendar days prior to the Settlement Hearing, file with the Court the following: (i) a written notice of intention to appear, (ii) proof of your membership in the Settlement Class, (iii) a detailed statement of your objections to any matters before the Court, and (iv) the grounds thereof or the reasons for your desire to appear and be heard, as well as documents or writings you desire the Court to consider. On or before the date you file such papers, you must serve copies of all of them by hand or overnight courier upon each of the following attorneys of record:

Juan E. Monteverde Faruqi & Faruqi, LLP 369 Lexington Avenue, 10th Fl. New York, NY 10017 Tel.: (212) 983-9330 Fax: (212) 983-9331

Lead Counsel for Plaintiffs

Dana B. Klinges Charles M. Hart DUANE MORRIS LLP 30 South 17th Street Philadelphia, Pennsylvania 19103-4196 (215) 979-1000

Attorneys for Orthovita, Inc., R. Scott Barry, Morris Cheston Jr., Antony Koblish, Mary E. Paetzold, Paul G. Thomas, William E. Tidmore Jr., and Paul T. Touhey Jr.

Edward P. Welch Edward B. Micheletti Joseph O. Larkin SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP

One Rodney Square, P.O. Box 636 Wilmington, Delaware 19899 (302) 651-3000

- and -

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Matthew R. Kipp Nick D. Campanario SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP

155 North Wacker Drive Chicago, Illinois 60606-1720 (312) 407-0700

Attorneys for Stryker Corporation and Owl Acquisition Corporation

Any Class member who does not object to the Settlement, the Settlement class action determination, or the request by Class Counsel for an award of attorneys’ fees or expenses need not do anything.

Unless the Court otherwise directs, no person will be entitled to object to the approval of the Settlement, the class action determination, or the judgment to be entered in the Actions, or otherwise to be heard, except by serving and filing written objections as described above.

Any person who fails to object in the manner described above shall be deemed to have waived the right to object (including the right to appeal) and will be forever barred from raising such objection in these or in any other action or proceeding. You have no right to seek to be excluded from the proposed Settlement Class and will be bound by the release contained in the Court’s Final Approval Order if entered by the Court.

X. STAY PENDING COURT APPROVAL AND INTERIM INJUNCTION

Pending Court approval of the Settlement, the parties have agree to stay the proceedings in the Actions and to stay and not to initiate any and all other proceedings (including discovery) other than those incident to the Settlement itself. The parties also agreed that is in their best interests and that of the proposed Settlement Class to prevent, stay, or seek dismissal of any other litigation against any of the parties to the Settlement or any other Released Persons that challenges the Settlement, the Transaction, or otherwise involves a settled claim. Accordingly, pending the Final Approval Hearing on whether the Settlement should be approved, plaintiffs, all members of the Class, and their counsel, and each of them, and any of their respective representatives, trustees, successors, heirs, and assigns, are barred and enjoined from asserting, commencing, prosecuting, continuing, assisting, instigating, or in any way participating in the commencement or prosecution of any action, whether directly, representatively, derivatively, or in any other capacity, asserting any claims that are, or relate in any way to, the Released Claims against any Defendants.

XI. ORDER AND FINAL JUDGMENT OF THE COURT

If the Court determines that the Settlement, as provided for in the Stipulation, is fair, reasonable, adequate, and in the best interests of the Settlement Class, the parties will ask the Court to enter an Order and Final Judgment, which will, among other things: · · · ·

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permanently certify the Settlement Class pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(1) and 23(b)(2);

2. approve the Settlement and adjudge the terms thereof to be fair, reasonable, adequate, and in the best interests of the Settlement Class, pursuant to Federal Rule of Civil Procedure 23(e);

3. authorize and direct the performance of the Settlement in accordance with its terms and conditions and reserve jurisdiction to supervise the consummation of the Settlement provided herein;

4. dismiss the Actions with prejudice on the merits and release the Defendants, and each of them, and all the Released Persons from the Released Claims; and

5. permanently bar and enjoin plaintiffs and all members of the Settlement Class from instituting, commencing or prosecuting any of the Released Claims against any of the Released Parties.

XII. NOTICE TO THOSE HOLDING STOCK FOR THE BENEFIT OF OTHERS

Brokerage firms, banks, and/or other persons or entities who held shares of Orthovita common stock for the benefit of others are directed promptly to send a complete and correct copy of this Notice to all of such beneficial owners. If additional copies of the Notice are needed for this reason, requests for such additional copies may be made to:

RG/2 Claims Administration LLC P.O. Box 59479 Philadelphia, PA 19102-9479 Tel: (866) 742-4955 Fax: (215) 979-1695

You may obtain reimbursement for, or advancement of, reasonable administrative costs actually incurred or expected to be incurred in connection with forwarding the Notice and which would not have been incurred but for the obligation to forward the Notice, upon submission of appropriate documentation to the Notice Administrator.

XIII. SCOPE OF THE NOTICE

This Notice is not intended to be all-inclusive. The references in this Notice to the pleadings in the Actions, the Stipulation, and other papers and proceedings are only summaries and do not purport to be comprehensive. For the full details of the Actions, claims asserted, and the terms and conditions of the Settlement, including a complete copy of the Stipulation, members of the Settlement Class are referred to the documents filed with the Court in the Actions. You or your attorney may examine the Court files during regular business hours of each business day at the office of the Clerk of the United States District Court for the Eastern District of Pennsylvania, 610 Market Street, 3 rd Floor, Philadelphia, PA or by requesting copies from Class Counsel at:

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Juan E. Monteverde Faruqi & Faruqi, LLP 369 Lexington Avenue, 10th Fl. New York, NY 10017 Tel.: (212) 983-9330 Fax: (212) 983-9331

DO NOT WRITE OR TELEPHONE THE COURT.

Notice Approved by Order of the Court Entered on

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robert clayton, et al. v. orthovita, inc., et al. 11-cv...

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