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Exhibit 10.24
AMENDED & RESTATED
PERFORMANCE ACCELERATED
STOCK OPTIONS AGREEMENT
This
AMENDED & RESTATED PERFORMANCE ACCELERATED STOCK OPTIONS
AGREEMENT (this Agreement
”), dated as of the 14 th
day of November, 2007 by and between Orthofix International
N.V. (the “ Company
”) and Mr. Bradley R. Mason (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 Bradley R. Mason, 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);
(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
(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 (4 th
) 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 ”);
(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
employmen
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