Nonqualified Stock Option Agreement under the Orthofix International N.V. Amended and Restated 2004 Long-Term Incentive Plan
Exhibit
10.34
the
Orthofix International N.V.
Amended and Restated 2004
Long-Term Incentive Plan
This
Option Agreement (the “Agreement”)
is made this 11th day of April 2008 (the “Grant
Date”) between Orthofix International N.V., a Netherlands Antilles
company (the “Company”),
and the person signing this Agreement adjacent to the caption “Optionee” on the
signature page hereof (the “Optionee”). Capitalized
terms used and not otherwise defined herein shall have the meanings attributed
thereto in the Orthofix International N.V. Amended and Restated 2004 Long-Term
Incentive Plan (the “Plan”).
WHEREAS,
the Optionee is entering into that certain Employment Agreement of even date
herewith with Orthofix Inc., a Minnesota corporation and wholly owned subsidiary
of the Company (the “Employment
Agreement”);
WHEREAS,
pursuant to the Plan and the Employment Agreement, the Company desires to afford
the Optionee the opportunity to purchase Common Shares on the terms and
conditions set forth herein;
NOW,
THEREFORE, in connection with the mutual covenants hereinafter set forth and for
other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Option.
Subject to the provisions of this Agreement, the Employment Agreement and the
Plan, the Company hereby grants to the Optionee the right and option (the “Option”)
to purchase 50,000 Common Shares at an exercise price of $31.83 per share (the
“Exercise
Price”).
2. Incorporation of
Plan. The Optionee acknowledges receipt of the Plan, a copy of which is
annexed hereto, and represents that he or she is familiar with its terms and
provisions and hereby accepts this Option subject to all of the terms and
provisions of the Plan and all interpretations, amendments, rules and
regulations which may, from time to time, be promulgated and adopted pursuant to
the Plan. The Plan is incorporated herein by reference. In the event of any
conflict or inconsistency between the Plan and this Agreement, the Plan shall
govern and this Agreement shall be interpreted to minimize or eliminate any such
conflict or inconsistency. In the event of any conflict between this
Agreement and the Employment Agreement, the applicable provision of the
Employment Agreement shall supersede the conflicting provision in this
Agreement.
3. Nature of the Option.
The Option shall be a Nonqualified Stock Option.
4. Vesting. Subject to
earlier termination in accordance with the Plan, the Employment Agreement or
this Agreement and the terms and conditions therein or herein, the Option shall
vest and become exercisable with respect to 33 1/3% of the shares covered
thereby on each of the first, second and third anniversaries of the Grant Date;
provided, however, that the exercisability of any portion of the Option relating
to a fractional share shall be deferred until such time, if any, that such
portion can be exercised as a whole Common Share.
5. Term. The Option
shall expire and no longer be exercisable 10 years from the Grant Date, subject
to earlier termination in accordance with the Plan, this Agreement or the
Employment Agreement; provided, however: (i) if the termination date falls on a
date on which the exercise of the Option would violate any applicable federal,
state, local or foreign law, such termination date shall be extended to 30 days
after the first date that exercise of the Option would no longer violate any
applicable federal, state, local or foreign law, and (ii) if the termination
date falls on a date on which the Optionee is prohibited by Company policy in
effect on such date from engaging in transactions in the Company’s securities,
such termination date shall be extended to the first date that the Optionee is
permitted to engage in transaction in the Company’s securities under such
Company policy so long as such extension does not cause the Option to become
subject to Code Section 409A or violate any other applicable
law.
Exhibit
10.34
6. Termination of
Employment.
(a) General. A
termination of employment shall be deemed to have occurred if the Optionee is no
longer employed by, or otherwise providing services to, the Company or any of
its Subsidiaries for any reason, expressly including as provided in Article IV
of the Employment Agreement.
(b) Termination of Employment on
Death or Other than for Cause. In the event (i) the Company terminates
the Optionee's employment prior to vesting other than for Cause (as defined in
the Employment Agreement) or (ii) of the death of the Optionee, then the Option
shall be considered vested in full and be immediately exercisable as of the date
of such termination of employment as provided in the Employment
Agreement. Following the term of such employment, the Optionee shall
have the right, subject to the other terms and conditions set forth in this
Agreement and the Plan, to exercise the Option until the expiration of the
Option as provided in Section 5 hereof. To the extent the vested portion of the
Option is not exercised within such period, the Option shall be cancelled and
revert back to the Company and the Optionee shall have no further right or
interest therein.
(d) Termination of Employment
for Cause or Voluntary Termination. If the Optionee's employment is
terminated by the Optionee in a Voluntary Termination or by the Company or any
of its Subsidiaries for Cause prior to the full vesting of the Option, the
unvested portion of the Option shall be cancelled and revert back to the Company
as of the date of such termination of employment, and the Optionee shall have no
further right or interest therein unless the Committee in its sole discretion
shall determine otherwise. The Optionee shall have the right, subject to the
other terms and conditions set forth in this Agreement, the Employment Agreement
and the Plan, to exercise the portion of the Option, if any, to the extent it
was vested as of the date of such termination of employment at any time within
three months after the date of such termination, subject to the earlier
expiration of the Option as provided in Section 5 hereof.
7. Method of Exercising
Option.
(a) Notice of Exercise.
Subject to the terms and conditions of this Agreement, the Option may be
exercised by written or electronic notice to the Company, from the Optionee, a
Permitted Transferee, a transferee pursuant to a domestic relations order, or
following the Optionee’s death, the Optionee’s estate, personal representative,
or beneficiary, as applicable, and stating the number of Common Shares in
respect of which the Option is being exercised. Such notice shall be accompanied
by payment of the Exercise Price for all Common Shares purchased pursuant to the
exercise of such Option. The date of exercise of the Option shall be the later
of (i) the date on which the Company receives the notice of exercise or (ii) the
date on which the conditions set forth in Sections 7(b) and (e) are satisfied.
Notwithstanding any other provision of this Agreement, the Optionee may not
exercise the Option and no Common Shares will be issued by the Company with
respect to any attempted exercise when such exercise is prohibited by law or any
Company policy then in effect. The Option may not be exercised at any one time
as to less than 100 shares (or such number of shares as to which the Option is
then exercisable if less than 100). In no event shall the Option be exercisable
for a fractional share.
Exhibit
10.34
(b) Payment. Prior to the
issuance of the Common Shares pursuant to Section 7(e) hereof in respect of
which all or a portion of the Option shall have been exercised, the Optionee
shall have paid to the Company the Exercise Price for all Common Shares
purchased pursuant to the exercise of such Option. Payment may be made by
personal check, bank draft or postal or express money order (such modes of
payment are collectively referred to as “cash”) payable to the order of the
Company in U.S. dollars. Payment may also be made in mature Common Shares owned
by the Optionee, or in any combination of cash or such mature shares as the
Committee in its sole discretion may approve. The Company may also permit the
Optionee to pay for such Common Shares by directing the Company to withhold
Common Shares that would otherwise be received by the Optionee, pursuant to such
rules as the Committee may establish from time to time. In the discretion of the
Committee, and in accordance with rules and procedures established by the
Committee, the Optionee may be permitted to make a “cashless” exercise of all or
a portion of the Option.
(c) Shareholder Rights.
The Optionee shall have no rights as a shareholder with respect to any Common
Shares issuable upon exercise of the Option until the Optionee shall become the
holder of record thereof, and no adjustment shall be made for dividends or
distributions or other rights in respect of any Common Shares for which the
record date is prior to the date upon which the Optionee shall become the holder
of record thereof.
(d) Limitation on
Exercise. The Option shall not be exercisable unless the offer and sale
of Common Shares pursuant thereto has been registered under the Securities Act
of 1933, as amended (the “1933
Act”), and qualified under applicable state “blue sky” laws or the
Company has determined that an exemption from registration under the 1933 Act
and from qualification under such state “blue sky” laws is
available.
(e) Issuance of Common
Shares. Subject to the foregoing conditions, as soon as is reasonably
practicable after its receipt of a proper notice of exercise and payment of the
Exercise Price for all Common Shares purchased pursuant to the exercise of such
Option, the Company shall either: (i) deliver or cause to be delivered to the
Optionee (or a Permitted Transferee, a transferee under a domestic relations
order, or following the Optionee's death, the Optionee's estate, personal
representative or beneficiary, as applicable) one or more share certificates for
the appropriate number of Common Shares issued in connection with such exercise
(less any Common Shares withheld under Section 9 below), or (ii) cause its
third-party recordkeeper to credit an account established and maintained in the
name of the Optionee (or a Permitted Transferee, a transferee under a domestic
relations order, or following the Optionee's death, the Optionee's estate,
personal representative or beneficiary, as applicable) with the number of Common
Shares issued in connection with such exercise (less any Common Shares withheld
under Section 9 below); provided, however, that an actual share certificate
shall be delivered if requested by the Optionee (or a Permitted Transferee, a
transferee under a domestic relations order, or following the Optionee's death,
the Optionee's estate, personal representative or beneficiary, as applicable).
Such Common Shares shall be fully paid and nonassessable and shall be issued in
the name of the Optionee (or a Permitted Transferee, a transferee under a
domestic relations order, or following the Optionee's death, the Optionee's
estate, personal representative or beneficiary, as applicable).
Exhibit
10.34
8. Adjustment of and Changes in
Common Shares. In the event of any merger, consolidation,
recapitalization, reclassification, stock dividend, extraordinary dividend, or
other event or change in corporate structure affecting the Common Shares, the
Committee shall make such adjustments, if any, as it deems appropriate in the
number and class of shares subject to, and the exercise price of, the Option.
The foregoing adjustments shall be determined by the Committee in its sole
discretion.
9. Tax Withholding. The
Company shall have the right, prior to the issuance of any Common Shares upon
full or partial exercise of the Option (whether by the Optionee or any Permitted
Transferees, a transferee under a domestic relations order, or following the
Optionee’s death, the Optionee’s estate, personal representative, or
beneficiary, as applicable), to require the Optionee to remit to the Company any
amount sufficient to satisfy the minimum required federal, state or local tax
withholding requirements, as well as all applicable withholding tax requirements
of any other country or jurisdiction. The Company may permit the Optionee to
satisfy, in whole or in part, such obligation to remit taxes, by directing the
Company to withhold Common Shares that would otherwise be received by the
Optionee, pursuant to such rules as the Committee may establish from time to
time. The Company shall also have the right to deduct from all cash payments
made pursuant to, or in connection with, the Option, the minimum federal, state
or local taxes required to be withheld with respect to such
payments.
10. Transfers. Unless the
Committee determines otherwise after the Grant Date, the Option shall not be
transferable other than by will or by the laws of descent and distribution or
pursuant to a domestic relations order; provided, however, the Option may be
transferred to the Optionee's family members or to one or more trusts or
partnerships established in whole or in part for the benefit of one or more of
such family members (collectively, the “Permitted Transferees”). Any Option
transferred to a Permitted Transferee shall be further transferable only by will
or the laws of descent and distribution or, for no consideration, to another
Permitted Transferee of the Optionee. The Committee may in its discretion permit
transfers of Options other than those contemplated by this Section
10.
11. Option Exercisable Only by
the Optionee. During the lifetime of the Optionee, an Option shall be
exercisable only by the Optionee or by a Permitted Transferee to whom such
Option has been transferred in accordance with Section 10.
12. Prohibition on
Repricing. The Agreement may not be amended to (a) reduce the
Exercise Price of the Option granted hereunder, nor (b) cancel or replace the
Option hereunder with an Option having a lower exercise
price.
13. Miscellaneous
Provisions.
(a) Notices. Any notice
required by the terms of this Agreement shall be delivered or made
electronically, over the Internet or otherwise (with request for assurance of
receipt in a manner typical with respect to communications of that type), or
given in writing. Any notice given in writing shall be deemed
effective upon personal delivery or upon deposit with the United States Postal
Service, by registered or certified mail, with postage and fees prepaid, and
shall be addressed to the Company at its principal executive office and to the
Optionee at the address that he or she has most recently provided to the
Company. Any notice given electronically shall be deemed
effective on the date of transmission.
(b) Headings. The
headings of sections and subsections are included solely for convenience of
reference and shall not affect the meaning of the provisions of this
Agreement.
Exhibit
10.34
(c) Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
(d) Entire Agreement.
This Agreement and the Plan constitute the entire agreement between the parties
hereto with regard to the subject matter hereof. They supersede all other
agreements, representations or understandings (whether oral or written and
whether express or implied) that relate to the subject matter
hereof.
(e) Amendments. The Board
and the Committee shall have the power to alter or amend the terms of the Option
as set forth herein from time to time, in any manner consistent with the
provisions of Sections 16 and 19 of the Plan, and any alteration or amendment of
the terms of the Option by the Board or the Committee shall, upon adoption,
become and be binding on all persons affected thereby without requirement for
consent or other action with respect thereto by any such person. The Committee
shall give notice to the Optionee of any such alteration or amendment as
promptly as practicable after the adoption thereof. The foregoing shall not
restrict the ability of the Optionee and the Board or the Committee by mutual
written consent to alter or amend the terms of the Option in any manner which is
consistent with the Plan.
(f) Binding Effect. This
Agreement shall be binding upon the heirs, executors, administrators and
successors of the parties hereto and may only be amended by written agreement of
the parties hereto.
(g) Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, without regard to the choice of law provisions
thereof.
(h) No Employment or Other
Rights. This Option grant does not confer upon the Optionee any right to
be continued in the employment of, or otherwise provide services to, the Company
or any Subsidiary or other affiliate thereof, or interfere with or limit in any
way the right of the Company or any Subsidiary or other affiliate thereof to
terminate such Optionee’s employment at any time.
Exhibit
10.34
EXECUTED
as of the date first written above.
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COMPANY:
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ORTHOFIX
INTERNATIONAL N.V.
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By: /s/ Xxxx X.
Xxxxxxxxx
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Name: Xxxx
X. Xxxxxxxxx
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Title: Chief
Executive Officer
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OPTIONEE:
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By: /s/ Xxxxxx
Xxxx
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Name: Xxxxxx
Xxxx
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Title: Chief
Financial Officer
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