AMENDED & RESTATED PERFORMANCE ACCELERATED STOCK OPTIONS AGREEMENT
EXHIBIT
10.2
AMENDED
& RESTATED
PERFORMANCE
ACCELERATED
This
AMENDED & RESTATED PERFORMANCE ACCELERATED STOCK OPTIONS AGREEMENT (this
Agreement”), dated as of the ___ day of November, 2007 by and between
Orthofix International N.V. (the “Company”) and Xx. Xxxxxxx X. Xxxxx (the
“Optionee”).
WITNESSETH:
WHEREAS,
in connection with the transaction contemplated by the Acquisition Agreement,
dated as of November 20, 2003 (the “Acquisition Agreement”), among the
Company, Trevor Acquisition, Inc., a Delaware corporation and an indirect
wholly
owned subsidiary of Orthofix, Breg, Inc., a California corporation, and Xxxxxxx
X. Xxxxx, as shareholder’s representative, and the Optionee’s employment with
the Company, the Company granted the Optionee Options (as defined herein)
to
purchase shares of the Company’s common stock, par value U.S. $0.10 per share
(“Common Stock”), on the terms and conditions set forth in that certain
Performance Accelerated Stock Options Agreement between the Company and the
Optionee dated November 20, 2003 (the “Prior Agreement”).
WHEREAS,
all Options not currently vested will vest as of December 30, 2007, pursuant
to
the terms of the Prior Agreement.
WHEREAS,
in connection with the extension of Optionee’s Employment Agreement through
December 30, 2008, the Company and the Optionee have agreed to modify the
provisions relating to the exercise of the Options and desire to amend and
restate the Prior Agreement in its entirety by executing this
Agreement.
NOW,
THEREFORE, in consideration of the covenants and agreements set forth herein,
the parties hereto hereby agree as follows:
SECTION
1.
Definitions. For
the purpose of this Agreement, the following terms shall have the meanings
specified below:
(a) “Board”
means the Board of Directors of the Company.
(b) “Cause”
means termination of the Optionee’s employment because of any of the following
events:
(i) Any
of
the events or circumstances under the definition of “Cause” pursuant to the
Optionee’s employment agreement with the Company, dated November 20, 2003 (as
amended, the “Employment Agreement”), if such Employment Agreement is in
effect; or
(ii) The
Optionee’s (A) involvement in fraud, misappropriation or embezzlement related to
the business or property of the Company, (B) conviction for, or guilty plea
to,
a felony or crime of similar gravity in the jurisdiction which such conviction
or guilty plea occurs, or (C) 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 the applicable
law).
(c) “Change
in Control” means, notwithstanding the terms of any applicable plan or
arrangement to the contrary, any of the following events:
(i) Any
person, as that term is used in Section 13(d) and Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
becomes, is discovered to be, or files a report on Schedule 13D or 14D-1
(or any
successor schedule, form or report) disclosing that such person is, a beneficial
owner (as defined in Rule 13d-3 under the Exchange Act or any successor rule
or
regulation), directly or indirectly, of securities of the Company representing
twenty percent (20%) or more of the combined voting power of the Company’s then
outstanding securities entitled to vote generally in the election of directors
(unless such person is known by Optionee to be already such beneficial owner
on
the date of this Agreement);
1
(ii) Individuals
who, as of the date of this Agreement, constitute the Board cease for any
reason
to constitute at least a majority of the Board, unless any such change is
approved by a unanimous vote of the members of the Board in office immediately
prior to such cessation;
(iii) The
Company is merged, consolidated or reorganized into, or with another corporation
or other legal person, or securities of the Company are exchanged for securities
of another corporation or other legal person, and immediately after such
merger,
consolidation, reorganization or exchange less than a majority of the combined
voting power of the then-outstanding securities of such corporation or person
immediately after such transaction are held, directly or indirectly, in the
aggregate by the holders of securities entitled to vote generally in the
election of directors of the Company immediately prior to such
transaction;
(iv) The
Company, in any transaction or series of related transactions, sells all
or
substantially all of its assets to any other corporation or other legal person,
and less than a majority of the combined voting power of the then outstanding
securities of such corporation or person immediately after such sale or sales
are held, directly or indirectly, in the aggregate by the holders of securities
entitled to vote generally in the election of directors of the Company
immediately prior to such sale;
(v) The
Company and its affiliates shall sell or dispose of (in a single transaction
or
series of related transactions) business operations that generated two-thirds
of
the consolidated revenues (determined on the basis of the Company’s four (4)
most recently completed fiscal quarters for which reports have been filed
under
the Exchange Act) of the Company and its subsidiaries immediately prior
thereto;
(vi) The
Company files a report or proxy statement with the Securities and Exchange
Commission pursuant to the Exchange Act, disclosing in response to Form 8-K
or
Schedule 14A (or any successor schedule, form or report or item therein)
that a
change in control of the Company has or may have occurred or will or may
occur
in the future pursuant to any then existing contract or transaction;
or
(vii) Any
other
transaction or series of related transactions occur that have substantially
the
effect of the transactions specified in any of the preceding clauses in this
sentence.
Notwithstanding
the foregoing provisions, unless otherwise determined in a specific case
by
majority vote of the Board, a “Change of Control” shall not be deemed to
have occurred for purposes of this Agreement solely because:
(i) The
acquisition of, or issuance by, Orthofix of its securities; or
(ii) An
entity
in which Orthofix directly or indirectly beneficially owns fifty percent
(50%)
or more of the voting securities, or any Orthofix-sponsored employee stock
ownership plan, or any other employee benefit plan of Orthofix, either files
or
becomes obligated to file a report or a proxy statement under or in response
to
Schedule 13D, Schedule 14D-1, Form 8K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act, disclosing
beneficial ownership by form or report or item therein) under the Exchange
Act,
disclosing beneficial ownership by it of shares of Common Stock of Orthofix,
or
because Orthofix reports that a Change in Control of Orthofix has or may
have
occurred or will or may occur in the future by reason of such beneficial
ownership; or
2
(iii) Any
Orthofix-sponsored employee stock ownership plan, or any other employee benefit
plan of Orthofix, either files or becomes obligated to file a report or a
proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8K or
Schedule 14A (or any successor schedule, form or report or item therein)
under
the Exchange Act, disclosing beneficial ownership by form or report or item
therein) under the Exchange Act, disclosing beneficial ownership by it of
shares
of Common Stock of Orthofix, or because Orthofix reports that a Change in
Control of Orthofix has or may have occurred or will or may occur in the
future
by reason of such beneficial ownership.
(d) “Committee”
means the Compensation Committee of the Board.
(e) “Expiration
Date” means the date that is the ten (10) year anniversary of the Grant
Date.
(f) “Permanent
Disability” means termination of the Optionee’s employment because of any of
the following events:
(i) Any
of
the events or circumstances under the description of “Permanent Disability”
pursuant to the Optionee’s Employment Agreement, if such Employment Agreement is
in effect; or
(ii) The
Optionee’s incapacity resulting from physical or mental illness or disease which
substantially prevents the Optionee from performing his duties as an employee
of
the Company and that has continued at least one hundred and eighty (180)
days
and can be 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 Board
or the
Committee.
SECTION
2. Grant
of Options. Pursuant to the Prior Agreement, the Company granted
to the Optionee, as of the Grant Date (as defined in the Prior Agreement)
and
through the Expiration Date (the “Option Period”), options to purchase
from the Company one hundred and fifty thousand (150,000) shares of Common
Stock
at an exercise price of $38.00 per share (the “Options”).
SECTION
3. Exercise
of Options. Subject to the terms and conditions set forth in this
Agreement, the Options shall be subject to the following vesting and
exercisability requirements:
(a) Generally. All
shares subject to the Options that are not vested as of the date hereof shall
vest and become fully exercisable on the fourth (4th) anniversary
of
the Grant Date and shall be exercisable thereafter until and including the
Expiration Date, subject to the Optionee’s exercise elections set forth in
Section 3(b) hereof and any limitations on exercise in effect on the date
of
exercise. For the avoidance of doubt, 22,500 Options are vested as of the
date
hereof.
(b) Election
to Exercise Options. Notwithstanding any other provision of this
Agreement to the contrary:
(i) provided
the Optionee’s employment with the Company does not terminate on or prior to
December 31, 2007, the Optionee hereby voluntarily elects (pursuant to Internal
Revenue Notice 2006-79, Section 3.02) to fix the period that the Optionee
may
exercise any Options, to the extent vested, to the period beginning January
1,
2009, and ending on December 31, 2009 (the “Exercise
Period”);
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(ii) in
the
event the Optionee’s employment with the Company terminates (for a reason other
than death or termination by the Company for Cause) on or prior to December
31,
2007, the Optionee elects to exercise the Options with respect to 22,500
shares
upon the earlier to occur of the (A) Optionee’s death or (B) the date that is
six months and one day following the date of the Optionee’s termination of
employment; provided, however, that the Optionee shall not be
deemed to have elected such exercise if the exercise price of the Options
is
greater than the fair market value of the Common Stock on such
date;
(iii) in
the
event the Optionee’s employment with the Company terminates on or prior to
December 31, 2007 as a result of his death, the Optionee elects to exercise
the
Options with respect to 22,500 shares upon the date of his death;
provided, however, that the Optionee shall not be deemed to have
elected such exercise if the exercise price of the Options is greater than
the
fair market value of the Common Stock on such date;
(iv) in
the
event the Optionee’s employment with the Company is terminated by the Company
for Cause on or prior to December 31, 2007, the Options shall lapse and be
canceled; and
(v) the
Optionee further elects that any amounts payable shall be paid in a lump
sum
payment upon exercise of any Options pursuant to this Section 3(b).
(c) Any
portion of the Options that are not exercised by midnight Eastern Time on
the
last day of the Exercise Period shall not be exercisable thereafter and shall
terminate and be cancelled immediately following such date and time;
provided, however, if the Optionee’s termination of employment
occurs on or prior to December 31, 2007 for a reason other than termination
by
the Company for Cause, then any portion of the Options that are not exercised
or
exercisable on the date of the Optionee’s death or, if termination is for a
reason other than death, on the earlier to occur of the Optionee’s death or the
date that is six months and one day following the date of the Optionee’s
termination of employment, shall not be exercisable thereafter and shall
terminate and be cancelled immediately following the earlier to occur of
the
Optionee’s death or the date that is six months and one day following the date
of the Optionee’s termination of employment.
(d) Any
exercise described in Section 3(b) shall be delayed to the extent required
to
avoid a violation of federal securities laws or other applicable laws;
provided, however, such exercise shall not be delayed beyond the
earliest date at which the Company reasonably anticipates that such exercise
will not cause such violation. An exercise that would cause inclusion
in gross income or the application of any penalty provision or other provision
of the Code is not treated as a violation of applicable law.
(e) Upon
the
death of the Optionee, the executor or administrator of the estate of the
Optionee or the person or persons to whom the Options shall have been validly
transferred by the executor or administrator pursuant to will or the laws
of
descent and distribution shall have the right to exercise the Options to
the
extent that the Optionee was entitled to exercise them on the date of death
under Section 3(b).
SECTION
4. Termination
of Employment.
(a) General. A
termination of employment shall be deemed to have occurred if the Optionee
is no
longer employed by the Company or any of its subsidiaries for any
reason. The Board and the Committee each shall have the discretion to
determine whether employment has been or could have been terminated for the
purposes of this Agreement, and the reasons therefore. Any such
determination shall be final, binding and conclusive.
4
(b) Change
in Control. Upon the occurrence of a Change in Control, the
Options shall automatically vest in full, provided, however, the
vested Options shall continue to be subject to the limitations on exercise
set
forth in Section 3 hereof and any other limitation on the exercise of the
Options in effect on the date of exercise. The vested Options shall
continue to be exercisable for three months following the Change in Control,
subject to such limitations.
SECTION
5. Methods
of Exercising Options.
(a) Notice
of Exercise. Subject to the terms and conditions of this
Agreement, the Options may be exercised by written notice to the Company
signed
by the Optionee or a Permitted Transferee and stating the number of shares
of
Common Stock in respect of which the Options are being
exercised. Such notice shall be accompanied by payment of the full
exercise price. The date of exercise of the Options shall be the
later of (i) the date on which the Company receives the notice of exercise
or
(ii) the date on which any requisite conditions are satisfied, including,
without limitation, the conditions set forth below in Sections 8
hereof. Notwithstanding any other provision of this Agreement, the
Optionee may not exercise the Options and no shares of Common Stock 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
Options may not be exercised at any one time as to less than one hundred
(100)
shares (or such number of shares as to which the Options are then exercisable
if
less than one hundred (100)). In no event shall the Options be
exercisable for a fractional share.
(b) Payment. Prior
to the issuance of a certificate pursuant to Section 14 hereof evidencing
the
shares of Common Stock in respect of which all or a portion of the Options
shall
have been exercised, the Optionee shall have paid to the Company the exercise
price for all shares of Common Stock purchased pursuant to the exercise of
such
Options. 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 shares of Common Stock
owned by the Optionee, or in any combination of cash or such mature shares
as
the Board or the Committee (as the case may be) in their sole discretion
may
approve. The Company may also permit the Optionee to pay for such
shares of Common Stock by directing the Company to withhold shares of Common
Stock that would otherwise be received by the Optionee, pursuant to such
rules
as the Board or the Committee may establish from time to time. In the
discretion of the Board or the Committee, and in accordance with rules and
procedures established by the Board or the Committee, the Optionee may be
permitted to make a “cashless” exercise of all or a portion of the
Options.
SECTION
6. Withholding. The
Company shall have the right, prior to the delivery of any certificates
evidencing shares of Common Stock to be issued upon full or partial exercise
of
the Options (whether by the Optionee or any Permitted Transferees), to require
the Optionee to remit to the Company any amount sufficient to satisfy the
minimum required federal, state or local tax withholding
requirements. The Company may permit the Optionee to satisfy, in
whole or in part, such obligation to remit taxes, by directing the Company
to
withhold shares of Common Stock that would otherwise be received by the
Optionee, pursuant to such rules as the Board or 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 Options
the
minimum required federal, state or local taxes required to be withheld with
respect to such payments.
SECTION
7. Optionee. Whenever
the word “Optionee” is used in any provision of this Agreement under
circumstances where the provision should logically be construed to apply
to the
executors, the administrators, the person or persons to whom the Options
may be
transferred by will or by the laws of descent and distribution or Permitted
Transferees (as defined below in Section 8 hereof), the word “Optionee” shall be
deemed to include such person or persons.
SECTION
8. Non-Transferability. Unless
the Board or the Committee determines otherwise on or after the Grant Date,
no
Options shall be transferable by the Optionee other than by will or by the
laws
of descent and distribution or pursuant to a domestic relations order;
provided, however, that the Board or the Committee may, in their
discretion and subject to such terms and conditions as they shall specify,
permit the transfer of the Options for no consideration 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,
“Permitted Transferees”). Any Options 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 Board or the Committee may in their
discretion permit transfers of Options other than those contemplated by this
Section 8. During the lifetime of the Optionee, the Options shall be
exercisable only by the Optionee or by a Permitted Transferee to whom such
Options have been transferred in accordance with this Section 8. The
grant of the Options shall impose no obligation on the Optionee to exercise
the
Options.
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SECTION
9. Shareholder
Rights. No shares of Common Stock shall be issued in respect of
the exercise of the Options until full payment therefor has been
made. The holder of the Options shall have no rights as a shareholder
with respect to any shares of Common Stock covered by the Options until the
date
the Optionee or his nominee becomes the holder of record of such
shares. Except as otherwise provided herein, no adjustments shall be
made for dividends or other rights for which the record date is prior to
the
date such share certificate is issued.
SECTION
10. No
Restriction on Right to Effect Corporate Changes. Neither this
Agreement nor the existence of any Options granted hereunder shall affect
or
restrict in any way the right or power of the Company or the shareholders
of the
Company to make or authorize any adjustments, recapitalizations, reorganizations
or other change in the Company’s capital structure or business, any merger or
consolidation of the Company, any issue of stock or of options, warrants
or
rights to purchase stock or bond, debentures, preferred or prior preference
stocks whose rights are superior to or affect the shares of Common Stock
or the
rights thereof or which are convertible into or exchangeable for shares of
Common Stock, or the dissolution or liquidation of the Company, or any sale
or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
SECTION
11. Changes
in Capitalization. Notwithstanding any provision of this
Agreement, the number and kind of shares authorized for issuance under Section
2
hereof may be equitably adjusted in the sole discretion of the Board or the
Committee in the event of a stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, extraordinary dividend, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to
purchase shares of Common Stock at a price substantially below fair market
value
or other similar corporate event affecting the shares of Common Stock in
order
to preserve, but not increase, the benefits or potential benefits intended
to be
made available under this Agreement. In addition, upon the occurrence
of any of the foregoing events, the number of outstanding Options and the
number
and kind of shares subject to any outstanding Options and the exercise price
per
share under any outstanding Options may be equitably adjusted (including
by
payment of cash to the Optionee) in the sole discretion of the Board or the
Committee in order to preserve the benefits or potential benefits intended
to be
made available to the Optionee. Such adjustments shall be made by the
Board or the Committee, in their sole discretion, whose determination as
to what
adjustments shall be made, and the extent thereof, shall be
final. Unless otherwise determined by the Board or the Committee,
such adjusted Options shall be subject to the same restrictions (including,
without limitations, the limitations on exercise set forth in Section 3 hereof)
and vesting schedule to which the underlying Options are subject.
SECTION
12. No
Right to Employment. Neither this Agreement, the grant of Options
under this Agreement, nor any action taken or omitted to be taken under this
Agreement shall be deemed to create or confer on the Optionee any right to
be
retained in the employ of the Company or any subsidiary or other affiliate
thereof, or to interfere with or to limit in any way the right of the Company
or
any subsidiary or other affiliate thereof to terminate the employment of
such
Optionee at any time.
6
SECTION
13. Compliance
with Law. Notwithstanding any of the provisions hereof, the
Optionee hereby agrees that Optionee will not exercise the Options, and that
the
Company will not be obligated to issue or transfer any shares of Common Stock
to
the Optionee hereunder, if the exercise hereof or the issuance or transfer
of
such shares shall constitute a violation by the Optionee or the Company of
any
provision of any law or regulation of any governmental authority. Any
determination in this connection by the Board or the Committee (as the case
may
be) shall be final, binding and conclusive. In addition, the Board or
the Committee (as the case may be) may require the Optionee purchasing shares
of
Common Stock pursuant to this Agreement to represent to and agree with the
Company in writing that such Optionee is purchasing the shares Common Stock
for
investment purposes and not with a view to the distribution
thereof.
SECTION
14. Issuance
of Share Certificates. As soon as is reasonably practical after
its receipt of a proper notice of exercise and payment of the exercise price
for
the number of shares with respect to which the Options are exercised, the
Company shall deliver to the Optionee, at the principal office of the Company
or
at such other location as may be acceptable to the Company and the Optionee,
one
or more stock certificates for the appropriate number of shares of Common
Stock
issued in connection with such exercise. Such shares of Common Stock
shall be fully paid and nonassessable and shall be issued in the name of
the
Optionee. All certificates for shares of Common Stock delivered under
this Agreement shall be subject to such stock-transfer orders and other
restrictions as the Board or the Committee (as the case may be) may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any exchange upon which shares of Common Stock are
then
listed, and any applicable securities law, and the Board or the Committee
(as
the case may be) may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
SECTION
15. Notice. Every
notice or other communication relating to this Agreement shall be in writing,
and shall be mailed to or delivered to the party for whom it is intended
at such
address as may from time to time be designated by it in a notice mailed or
delivered to the other party as herein provided, provided that, unless and
until
some other address be so designated, all notices or communications by the
Optionee to the Company shall be mailed or delivered to the Company at its
principal executive office, and all notices or communications by the Company
to
the Optionee may be given to the Optionee personally or may be mailed to
Optionee at the Optionee’s last known address, as reflected in the Company’s
records.
SECTION
16. Non-Qualified
Options. The Options are not an “incentive stock option” within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended
or
any successor provision thereto.
SECTION
17. Binding
Effect. Subject to Section 7 hereof, this Agreement shall be
binding upon the heirs, executors, administrators and successors of the parties
hereto.
SECTION
18. Determinations;
Liability. All determinations by the Board or the Committee (as
the case may be) in construing and interpreting this Agreement shall be final,
binding and conclusive for all purposes and upon all persons interested
herein. No member of the Board or Committee shall be liable for any
action or determination made in connection with the operation or interpretation
of this Agreement and the Company shall indemnify, defend and hold harmless
each
such person from any liability arising from or in connection with this
Agreement, except where such liability results directly from such person’s
fraud, willful misconduct or failure to act in good faith. In the
performance of its responsibilities with respect to this Agreement, the Board
and the Committee shall be entitled to rely upon information and advice
furnished by the Company’s officers, the Company’s accountants, the Company’s
counsel and any other party the Board or the Committee deems necessary, and
no
member of the Board or the Committee shall be liable for any action taken
or not
taken in reliance upon any such advice.
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SECTION
19. Amendments. The
Board and the Committee each shall have the power to alter or amend the terms
of
the Options as set forth herein from time to time, and any alteration or
amendment of the terms of the Options 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,
provided, however, that no amendment or modification shall
materially and adversely alter or impair the rights of the Optionee in the
Options granted pursuant to this Agreement without the consent of the holder
thereof. The Committee shall give written 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 Company by mutual consent to alter or amend the terms of the Options
in
any manner approved by the Board or the Committee.
SECTION
20. Governing
Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York.
SECTION
21. Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
SECTION
22.
Code
Section 409A. This Agreement and the Options are intended to
comply with Section 409A of the Internal Revenue Code of 1986, as
amended. Notwithstanding any provision of this Agreement to the
contrary, this Agreement shall be interpreted and construed consistent with
this
intent. Notwithstanding the foregoing, the Company shall not be
required to assume any increased economic burden.
8
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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ORTHOFIX
INTERNATIONAL N.V.
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/s/
Xxxx X. Xxxxxxxxx
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| By: Xxxx X. Xxxxxxxxx | ||
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Title:
Chief Executive Officer
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|
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| /s/ Xxxxxxx X. Xxxxx | ||
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XXXXXXX
X. XXXXX
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