Exhibit 10.6
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 effective as of [o],
2004 (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 [o] Common Shares at an exercise price of $[o] per share
(the "Exercise Price"), which represents the average of the highest and lowest
quoted selling prices of the Common Shares as reported on the Nasdaq National
Market on the Grant Date.
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 therein, the Option shall vest
and become exercisable with respect to thirty three and one-third percent (33
1/3%) of the shares covered thereby on each of the first (1st), second (2nd) and
third (3rd) 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 ten (10)
years from the Grant Date, subject to earlier termination in accordance with the
Plan or this Agreement; provided, however, 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 transactions in the Company's securities under such
Company policy.
6. 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
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.
(b) Termination of Employment Other than for Cause, Death or Permanent
Disability. If the Optionee's employment is terminated prior to vesting other
than for Cause, death or Permanent Disability, the Option shall be considered
vested 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 and the Plan, to
exercise the Option, to the extent it has vested as of the date of such
termination of employment, at any time within one hundred and eighty (180) days
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
vested portion of the Option is not exercised within such one hundred and eighty
(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.
(c) Termination of Employment for Cause. If the Optionee's employment
with the Company and its Subsidiaries is terminated by the Company or any of its
Subsidiaries for Cause prior to vesting, the unvested portion of the Option
shall be cancelled and revert to the Company, 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 such 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.
(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 and remain exercisable by the Optionee, a
Permitted Transferee or the Optionee's estate, personal representative or
beneficiary, as applicable, at any time within twelve (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 twelve (12) month period, the Option shall be cancelled
and revert back to the Company and the Optionee shall have no further right or
interest therein.
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 at any time within three (3) months after the date of
such Change in Control, subject to the earlier expiration of the Option as
provided in Section 5 hereof. To the extent the Option is not exercised within
such three (3) month period, the Option shall be cancelled and revert back to
the Company and the Optionee shall have no further right or interest therein.
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 notice to the Company signed
by the Optionee or a Permitted Transferee 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 full Purchase Price. 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 one hundred (100) shares (or such
number of shares as to which the Option is then exercisable if less than one
hundred (100)). In no event shall the Option be exercisable for a fractional
share.
(b) Payment. Prior to the issuance of a certificate pursuant to Section
8(e) hereof evidencing the Common Shares 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. 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 Share Certificate. Subject to the foregoing
conditions, as soon as is reasonably practicable after its receipt of a proper
notice of exercise and payment of the Purchase Price, the Company shall deliver
or cause to be delivered to the Optionee (or a Permitted Transferee 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.
Such Common Shares shall be fully paid and nonassessable and shall be issued in
the name of the Optionee (or a Permitted Transferee 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
delivery of any certificates evidencing Common Shares to be issued upon full or
partial exercise of the Option (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 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 required 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.
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. Miscellaneous Provisions.
(a) Notices. Any notice required by the terms of this Agreement shall
be given in writing and 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. Notice 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.
(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.
(e) Amendments. 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 Section 16 of the Plan, and any alteration or
amendment of the terms of the Option by 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 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 Option in any manner which is consistent with the Plan
and approved by the Committee.
(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.
14. 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
which such conviction or guilty plea occurs or (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).
"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 30% 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
(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, 30%
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; or
(iv) the approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
"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 one hundred and eighty (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.
"Purchase Price" shall mean the Exercise Price multiplied by the number
of Common Shares with respect to which the Option is being exercised.
EXECUTED effective as of the day and year first written above.
ORTHOFIX INTERNATIONAL N.V.
COMPANY:
By:
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Name:
Title:
OPTIONEE:
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Name:
