Nonqualified Stock Option Agreement under the Orthofix International N.V. Amended and Restated 2004 Long-Term Incentive Plan
Exhibit
10.2
Vest
over 3 years
Nonqualified
Stock Option Agreement under
the
Orthofix International N.V.
Amended and Restated 2004
Long-Term Incentive Plan
This
Option Agreement (the “Agreement”)
is made this 14th day of
October 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,
pursuant to the Plan, 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 and the Plan, the Company hereby
grants to the Optionee the right and option (the “Option”)
to purchase 75,000 Common Shares at an exercise price of $11.51 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.
3. Nature of the Option.
The Option shall be a Nonqualified Stock Option.
4. Vesting. Subject to
earlier termination in accordance with the Plan or this Agreement and the terms
and conditions herein or therein, 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 this 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.
Vest
over 3 years
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. The Committee shall have discretion to
determine whether an authorized leave of absence (as a result of disability or
otherwise) shall constitute a termination of employment for purposes of the Plan
and this Agreement.
(b) [Intentionally
omitted.]
(c) Termination of Employment
Other than for Cause; Death; Permanent Disability; or Voluntary Termination On
or Prior to March 31, 2010. If, prior to vesting, Optionee's employment
is terminated or Optionee retires in accordance with the Company’s retirement
policies, then the Option shall be considered vested in full and be immediately
exercisable as of the date of such termination of employment. For the avoidance
of doubt, a resignation by the Optionee for “good reason” or words of similar
meaning under any Employment Agreement shall constitute a termination subject to
the terms and provisions of this Section 6(c) and upon such event the Option
shall be considered vested in full and be immediately exercisable as of the date
of such termination of employment. Notwithstanding any provision to the contrary
in this Agreement, if, prior to vesting, Optionee terminates employment under
circumstances constituting a Voluntary Termination after March 31, 2010, the
Option shall be treated as if such termination was pursuant to this Section
6(c). 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. In no event shall this Section apply
if termination is (i) for Cause, (ii) by reason of death or Permanent Disability
or (iii) as a result of a Voluntary Termination on or prior to Xxxxx 00,
0000.
(x) Termination of Employment
for Cause; Voluntary Termination On or Prior to March 31, 2010. If, prior
to vesting, (i) the Optionee's employment with the Company and its Subsidiaries
is terminated by the Company or any of its Subsidiaries for Cause, or (ii)
Optionee terminates employment under circumstances constituting a Voluntary
Termination on or prior to March 31, 2010, 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 and the Plan, to exercise the Option, to
the extent it has vested as of the date of 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.
(e) Termination of Employment
for Death or Permanent Disability. If the Optionee's employment with the
Company and its Subsidiaries terminates by reason of death or Permanent
Disability, the Option shall automatically vest and become immediately
exercisable in full as of the date of such termination of
employment. The Option shall remain exercisable by the Optionee, a
Permitted Transferee (as defined in Section 11 hereof), a transferee under a
domestic relations order, or the Optionee's estate, personal representative or
beneficiary, as applicable, at any time within 12 months after the date of such
termination of employment, subject to the earlier expiration of the Option as
provided in Section 5 hereof. To the extent the Option is not exercised within
such 12 month period, the Option shall be cancelled and revert back to the
Company and the Optionee, Permitted Transferee, transferee under a domestic
relations order, or the Optionee’s estate, personal representative or
beneficiary, as applicable, shall have no further right or interest
therein.
Vest
over 3 years
(f)
Effect of Employment
Agreements Generally. Terms of an Employment Agreement
expressly defining whether and in what manner (including upon termination of
employment) the unvested portion of an Option shall vest, be exerciseable or be
cancelled shall control over the terms of this Agreement.
7. Change in Control.
Upon the occurrence of a Change in Control, the Option shall automatically vest
and become immediately exercisable in full and shall remain exercisable in
accordance with the terms of Section 6 hereof, subject to the earlier expiration
of the Option as provided in Section 5 hereof.
8. 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 8(b) and 8(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.
(b) Payment. Prior to the
issuance of the Common Shares pursuant to Section 8(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.
Vest
over 3 years
(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 10 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 10 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).
9. 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.
10.
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.
11. 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
11.
Vest
over 3 years
12. 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 11.
13. 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.
14. 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.
(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. In the event the Optionee has an Employment Agreement with
the Company, any conflicts or ambiguities shall be resolved first by reference
to the Plan, then the Employment Agreement and finally to this
Agreement. In the event such conflict or ambiguity cannot be resolved
by reference to the Plan, reference shall be made to the Employment
Agreement. Finally, and only in the event such conflict or ambiguity
cannot be resolved by reference to the Plan and Employment Agreement, reference
shall be made to this Agreement.
(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.
Vest
over 3 years
(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. For purposes of this Agreement
only, the term “employment” shall include circumstances under which Optionee
provides consulting or other services to the Company or any of its Subsidiaries
as an independent contractor, but such Optionee is not, nor shall be considered,
an employee; provided, however, nothing in this Section 14(h) or this Agreement
shall create an employment relationship between such person and the Company or
its applicable Subsidiary, as the usages described in this Section are for
convenience only.
15. Definitions. For
purposes of this Agreement, the following capitalized words shall have the
meanings set forth below.
“Cause”
shall mean termination of the Optionee's employment because of the Optionee's
(i) involvement in fraud, misappropriation or embezzlement related to the
business or property of the Company, (ii) conviction for, or guilty plea to, a
felony or crime of similar gravity in the jurisdiction in which such conviction
or guilty plea occurs, (iii) unauthorized disclosure of any trade secrets or
other confidential information relating to the Company's business and affairs
(except to the extent such disclosure is required under applicable law), or (iv)
such other circumstances constituting a termination for cause under any
Employment Agreement.
“Change in
Control” shall mean:
(i) the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange
Act”)) (a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (A) the then outstanding shares of the
Company's common stock (the “Outstanding
Common Stock”) or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding
Voting Securities”); excluding, however, the
following: (1) any acquisition directly from the Company, other than an
acquisition by virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly from the Company; (2)
any acquisition by the Company; (3) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any entity
controlled by the Company; or (4) any acquisition pursuant to a transaction
which complies with clauses (A), (B) and (C) of subsection (iii) of this
definition of Change of Control; or
Vest
over 3 years
(ii) a
change in the composition of the Board such that the individuals who, as of the
date hereof, constitute the Board (such Board shall be hereinafter referred to
as the “Incumbent
Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, for purposes of this paragraph, that any
individual who becomes a member of the Board subsequent to the date hereof,
whose election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of those individuals who are members
of the Board and who were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as though such individual
were a member of the Incumbent Board; but provided further that any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board shall not be so considered as a member of the Incumbent Board;
or
(iii) consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company (“Corporate
Transaction”); excluding, however, such a Corporate
Transaction pursuant to which all of the following conditions are met: (A) all
or substantially all of the individuals and entities who are the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than 50% of, respectively, the outstanding
shares of common stock, and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate Transaction
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate Transaction,
of the Outstanding Common Stock and Outstanding Voting Securities, as the case
may be, (B) no Person (other than the Company, any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Corporate
Transaction) will beneficially own, directly or indirectly, 50% or more of,
respectively, the outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined voting power of the
outstanding voting securities of such corporation entitled to vote generally in
the election of directors except to the extent that such ownership existed prior
to the Corporate Transaction, and (C) individuals who were members of the
Incumbent Board will constitute at least a majority of the members of the board
of directors of the corporation resulting from such Corporate
Transaction;
(iv) the
approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company; or
(v) any
similar or other definition contained in any Employment Agreement (even if
broader than as defined above).
“Committee”
shall mean the Compensation Committee of the Board or such other committee
appointed by the Board to administer the Plan
“Employment
Agreement” shall mean a written employment, change in control or change
of control agreement between the Optionee and the Company and/or a
Subsidiary. Employment Agreement expressly does not include any offer
letter, at-will employment arrangements or an employment or similar agreement
entered into outside the United States solely for purposes of complying with
local law requirements with respect to employment. For purposes of
this Agreement only and subject to Section 14(h), the term “Employment
Agreement” shall include a written agreement under which the Optionee provides
consulting or other services as an independent contractor to the
Company.
Vest
over 3 years
“Permanent
Disability” shall mean termination of the Optionee's employment as a
result of a physical or mental incapacity which substantially prevents the
Optionee from performing his or her duties as an employee and that has continued
for at least 180 days and can reasonably be expected to continue indefinitely.
Any dispute as to whether or not the Optionee is disabled within the meaning of
the preceding sentence shall be resolved by a physician selected by the
Committee.
“Voluntary
Termination” shall occur when the Optionee voluntarily ceases employment
with, or the provision of services to, the Company and its Subsidiaries for any
reason or no reason (e.g., the Optionee elects to cease being an employee or
provide consulting services or the Optionee resigns or quits). For the avoidance
of doubt, a Voluntary Termination shall not occur as a result of termination of
employment as a result of death, Permanent Disability (as provided hereunder),
or termination for “good reason” or similar words (as permitted hereunder and
pursuant to an Employment Agreement) or as the result of the Optionee’s
retirement in accordance with the Company’s retirement
policies.
Vest
over 3 years
EXECUTED
as of the date first written above.
|
COMPANY:
|
ORTHOFIX
INTERNATIONAL N.V.
|
|
|
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
|
Name: Xxxx
X. Xxxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
||
|
OPTIONEE:
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name: Xxxxxxx
X. Xxxxx
|
||
|
Title: Group
President, North
America
|
||
