Exhibit 10.1
Inducement Grant Nonqualified
Stock Option Agreement
This Option
Agreement (the " Agreement ") is made this 17th day
of August 2009 (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 ").
WHEREAS, as an inducement for the Optionee to
accept employment with the Company, 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 Company hereby
grants to the Optionee the right and option (the "
Option ") to purchase 50,000 Common Shares at an
exercise price of $26.77 per share (the " Exercise
Price "), which Exercise Price is 100% of the Fair Market
Value per share on the date the Optionee became an employee of the
Company.
2. Nature of the Option
. The Option shall be a Nonqualified Stock Option.
3. Vesting . Subject to
earlier termination in accordance with this Agreement and the terms
and conditions 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.
4. 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.
5. 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 this Agreement.
Exhibit 10.1
(b) Termination
of Employment Other than for Cause, Death, Permanent Disability or
Voluntary Termination . If, prior to vesting, the Optionee's
employment is terminated or the Optionee retires in accordance with
the Company's retirement policies, then the Option shall be
considered vested and be immediately exercisable as of the date of
such termination of employment with respect to the aggregate number
of Common Shares as to which the Option would have been vested as
of December 31 of the year in which such termination of employment
occurs. The Optionee shall have the right, subject to the other
terms and conditions set forth in this Agreement, to exercise the
Option, to the extent it has vested as of the date of such
termination of employment, at any time within 180 days after the
date of such termination of employment, subject to the earlier
expiration of the Option as provided in Section 4 hereof. To the
extent the vested portion of the Option is not exercised within
such 180 day period, the Option shall be cancelled and revert back
to the Company and the Optionee shall have no further right or
interest therein. The unvested portion of any Option shall be
cancelled and revert back to the Company as of the date of the
Optionee's termination of employment 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.
(c) Termination
of Employment for Cause; Voluntary Termination . 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, 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, 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 4 hereof.
(d) 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 10 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 4
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.
(e) 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.
(f) Discretion
of Committee . In connection with the Optionee's termination of
employment, the Committee shall have the discretion to accelerate
the vesting, exercisability or settlement of, eliminate the
restrictions and conditions applicable to, or extend the
post-termination exercise period of any outstanding Options, which
provisions may be determined at a subsequent time. Similarly, the
Committee shall have full authority to determine the effect, if
any, of a change in control of the Company on the vesting,
exercisability, settlement, payment or lapse of restrictions
applicable to an award, which effect may be determined at a
subsequent time.
Exhibit 10.1
6. 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 5
hereof, subject to the earlier expiration of the Option as provided
in Section 4 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 7(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
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; Investment Intent . 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. The Committee may require the Optionee to represent
to and agree with the Company in writing that he is acquiring the
Common Shares subject to the Options for investment purposes and
not with a view to the distribution thereof. All certificates for
Common Shares delivered under this Agreement shall be subject to
such stock-transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any
exchange upon which the Common Shares are then listed, and any
applicable securities law, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate
reference to such restrictions.
Exhibit 10.1
(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, in the discretion of the Committee, 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). Shares
issued upon exercise of the Options may be either authorized and
unissued shares or shares held by the Company in its
treasury.
8.
Recapitalization or Reorganization .
(a) Authority
of the Company and Shareholders . The existence of this
Agreement and the Options granted hereunder shall not affect or
restrict in any way the right or power of the Company or the
shareholders of the Company to make or authorize any adjustment,
recapitalization, reorganization 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 of bonds, debentures, preferred or prior
preference stocks whose rights are superior to or affect the Common
Shares or the rights thereof or which are convertible into or
exchangeable for Common Shares, or the dissolution or liquidation
of the Company, or any sale or transfer of all or any part of its
assets or business, or an
