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 14 th
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 March 31, 2010.
(d) 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.
