EXHIBIT 4.4
Form of Performance Accelerated
Stock Option Agreement (PASO)
PERFORMANCE ACCELERATED
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the ____ day of ____, ____ by and between
Orthofix International N.V. (the "Company") and ____________ (the "Optionee").
WITNESSETH:
WHEREAS, the Optionee is an employee of the Company, and the Company
wishes to grant the Optionee options to purchase shares of the Company's Common
Shares, par value US $0.10 per share ("Stock"), on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, 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
the Optionee's (i) involvement in fraud, misappropriation or embezzlement
related to the business or property of the Company or (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 the
applicable law).
(c) "Change in Control" means:
(i) the acquisition by any individual, entity or group of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the United States Securities Exchange Act of 1934, as amended) of
30% or more of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors or of equity
securities having a value equal to 30% or more of the total value of
all equity securities of the Company, provided, however, that the
following acquisitions of shares or other securities shall not
constitute a Change in Control: (I) any acquisition directly from the
Company, (II) any acquisition by the Company, (III) any acquisition by
an employee benefit plan (or related trust) sponsored or maintained by
the Company or any of its affiliates or (IV) any acquisition by any
individual, entity or group who owned Common Shares as of the date
prior to the effective date of the Company's registration statement on
Form F-1 relating to the public offering in the United States of up to
3,737,500 of the Company's Stock (the "Initial Public Offering"); or
(ii) individuals who as of the effective date of the Initial
Public Offering constitute the Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board, except that
any director whose election or nomination for election was approved by
the vote of at least a majority of directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding for this purpose any
individual whose initial assumption of office occurs as the result of
either an actual or threatened election contest of other actual or
threatened solicitation of proxies or consents by or on behalf of a
person other than the Board.
(d) "Expiration Date" means the date that is the 10 year anniversary of
the Grant Date.
(e) "Permanent Disability" means 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 of the
Company and that has continued at least 180 days and can reasonably by 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.
SECTION 2. Grant of Option. Subject to the terms and conditions set forth
in this Agreement, the Company hereby grants to the Optionee, during the period
commencing on ______________ (the "Grant Date") and ending on the tenth
anniversary of the Grant Date (the "Option Period"), an option to purchase from
the Company ________ shares of Stock at an exercise price of _______ per share,
which equals the price of the Stock on __________, the date on which the
Option was approved by the Company's shareholders (the "Option").
SECTION 3. Limitations on Exercise of Option. Subject to the terms and
conditions set forth in this Agreement, the Option shall be subject to the
following vesting and exercisability requirements:
(a) All shares subject to the Option shall vest and become fully
exercisable on the ______ anniversary of the Grant Date and shall be exercisable
thereafter until and including the Expiration Date. Notwithstanding the
foregoing, _____ shares subject to the Option shall be eligible for accelerated
vesting as of the first anniversary of the Grant Date; and an additional ______
shares subject to the Option shall be eligible for accelerated vesting on the
_____________________ anniversaries of the Grant Date, subject to the
attainment of the following stock price targets: each ___ increase in the market
price of the Stock above $__ (each a "Stock Price Target") that is attained
during each one-year period beginning on the Grant Date and ending on each of
the first ____ anniversaries of the Grant Date (each such date a "Grant Date
Anniversary") shall, without duplication for Options vested in prior years,
result in one-eighth of the shares subject to the Option and that are eligible
for accelerated vesting in such year to vest effective as of the applicable
Grant Date Anniversary; provided, however, that no portion of the Option shall
be exercisable prior to __________. As soon as practicable after each Grant
Date Anniversary, the Board shall determine the number of Stock Price Target
increases attained during the one-year period preceding such Grant Date
Anniversary. For purposes of the Stock
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Price Target increase determination, the Board shall assume that the market
price of the Stock was ___ on the first day of each one-year period.
Based on the foregoing, if, on any Grant Date Anniversary, the number of Stock
Price Target increases on such Grant Date Anniversary is equal to or exceeds the
number of Stock Price Target increases attained on the previous Grant Date
Anniversary, then the number of Options vested during the one-year period ending
on such Grant Date Anniversary shall equal (A) less (B), where:
(A) equals the product of (x) the shares eligible
for accelerated vesting on such Grant Date
Anniversary and (y) the product of a fraction,
the numerator of which is the total number of
Stock Price Targets attained during the one-year
period ending on such Grant Date Anniversary
(which, for purposes of this calculation, assumes
the market price of the Stock was ___ on the
first day of such one-year period), and the
denominator of which is 8, and
(B) equals the total number of Option shares
previously vested.
In the circumstance described in the preceding paragraph, the total number of
vested Option shares on any Grant Date Anniversary shall equal the sum of (A)
and (B) (each as determined above) (the "Grant Date Anniversary Vested Shares").
If, on any Grant Date Anniversary, the number of Stock Price Target increases
during the one-year period ending on such Grant Date Anniversary is less than
the number of Stock Price Target increases attained on the previous Grant Date
Anniversary, then the number of vested Option shares during such one-year period
shall equal the product of (x) _______, and (y) the product of a fraction, the
numerator of which is the total number of Stock Price Targets attained during
the one-year period ending on the Grant Date Anniversary (which, for purposes of
this calculation, assumes the market price of the Stock was ___ on the first day
of such one-year period), and the denominator of which is 8. In the circumstance
described in the preceding sentence, the total number of vested Option shares on
any Grant Date Anniversary shall equal the sum of (aa) the Grant Date
Anniversary Vested Shares (as of the preceding Grant Date Anniversary) and, (bb)
the number of vested Option shares determined pursuant to the immediately
preceding sentence.
EXAMPLE
o If during the first year the price of the Stock exceeded ___, then
2 of the 8 Stock Price Targets would have been met.
o By multiplying the total number of Option shares eligible for
vesting (______ in year one from above) and the number of Stock
Price Targets met in that year, the number of Option shares
that would vest would be ______________.
o Continuing the example, if during year two the stock price exceeds
___, then 4 of 8 Stock Price Targets would have been met. The
number of Option shares vesting in year two would be ___________,
less __________ Option
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shares vested in year one = ______, bringing the total number of
Option vested Option shares to _________________.
o If the number of Stock Price Targets met in any given year is less
than the number of Stock Price Targets met in any prior year, the
number of Option shares vesting would be determined by multiplying
the number of Option shares eligible for vesting in that year by
the number of Stock Price Targets met in that year. Prior vested
Option shares are not affected in any way. Continuing the example,
if in year three, the stock price does not exceed ___, then only 2
of 8 Stock Price Targets would have been met in that year,
and thus only ______ additional Option shares will vest, bringing
the total number of vested Option shares to ______________________.
(b) The number of Stock Price Targets attained during any one-year
period ending on a Grant Date Anniversary shall be determined based upon the
highest market price attained during such one-year period for at least ten
consecutive trading days on the National Association of Securities Dealers
Automated Quotation Market System ("NASDAQ"), or on the principal securities
exchange on which the Stock is then traded (the "Sustained Trading Period").
(c) Shares subject to the Option that vest pursuant to Section 3(a)
shall become exercisable on each Grant Date Anniversary and, subject to Section
4, shall remain exercisable until the Expiration Date; provided that no vested
Option shares shall be exercisable prior to _______________.
(d) If the market price of a share of Stock equals or exceeds ____ for
the Sustained Trading Period at any time on or before ________________, the
Option shall vest pursuant to the requirements of Section 3(a), provided that
all shares subject to the Option shall be fully vested and exercisable on
_________________.
SECTION 4. Termination of Employment or Change in Control.
(a) If, prior to the Expiration Date, the Optionee shall cease to be
employed by the Company by reason of a Permanent Disability, the Option shares
shall remain exercisable until the earlier of the Expiration Date or one year
after the date of cessation of employment to the extent the Option shares were
exercisable as of the date of the Optionee's termination of employment by reason
of a Permanent Disability.
(b) If, prior to the Expiration Date, the Optionee shall enter
retirement (in accordance with any qualified retirement plan maintained by the
Company) from employment or cease to be employed by the Company by reason of
death, or the Optionee shall die while entitled to exercise any of the Options
pursuant to Section 4(a) or the final sentence of Section 4(c), the executor or
administrator of the estate of the Optionee or the person or persons to whom the
Option shares shall have been validly transferred by the executor or
administrator pursuant to will or the laws of descent and distribution shall
have the right, until the earlier of the Expiration Date or one year after the
date of retirement or death, to exercise the Option shares to the extent that
the Optionee was entitled to exercise them on the date of death, subject to any
other limitation contained herein on the exercise of the Option shares in effect
on the date of exercise.
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(c) If the Optionee voluntarily terminates employment with the Company
for reasons other than death, Permanent Disability, or retirement (a "Voluntary
Termination"), or if the Optionee's employment with the Company is terminated
for Cause, the Option shares, to the extent not exercised prior to such
termination, shall lapse and be canceled. If the Company terminates the
Optionee's employment without Cause, the Option shares, to the extent
exercisable as of the date of Optionee's termination, shall continue to be
exercisable until the earlier of the Expiration Date or 90 days after the date
of such termination.
(d) Whether employment has been or could have been terminated for the
purposes of this Agreement, and the reasons therefore, shall be determined by
the Board, whose determination shall be final, binding and conclusive.
(e) After the expiration of any exercise period described in either of
Section 4(a), 4(b) or 4(c) hereof, the Option shares shall terminate together
with all of the Optionee's rights hereunder, to the extent not previously
exercised. Except as set forth herein, all vesting with respect to the Option
shares shall cease upon the Optionee's termination of employment and all Option
shares to the extent unvested as of the Date of Termination shall expire.
(f) Notwithstanding the vesting and exercise requirements of Section 3,
in the event of a Change in Control, the Option shares shall become fully vested
and exercisable.
SECTION 5. Method of Exercising Option.
(a) Upon becoming exercisable pursuant to Section 3 hereof, the Option
shares may be exercised, in whole or in part, by delivery of written notice of
exercise to the Board accompanied by payment of the full exercise price. The
exercise price may be payable in (i) in immediately available funds in United
States dollars or in such other currency as the Company may accept for such
purposes, by certified or bank cashier's check, (ii) by surrender to the Company
of shares of Stock which have been held by the Optionee for at least six months,
(iii) by a combination of cash and shares of Stock, or (iv) by any other means
approved by the Board.
(b) At the time of exercise, (i) the Company shall have the right to
withhold from the number of shares of Stock to be issued upon exercise or (ii)
at the discretion of the Board, the Optionee shall be obligated to pay to the
Company such amount, as the Company deems necessary to satisfy its obligation to
withhold all applicable taxes incurred by reason of the exercise or the transfer
of shares thereupon.
SECTION 6. Issuance of Share Certificates. As soon as is reasonably
practical after its receipt of a proper notice of exercise and payment of the
option price for the number of shares with respect to which an Option is
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 Stock issued in connection with such exercise. Such shares shall be
fully paid and nonassessable and shall be issued in the name of the Optionee.
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
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the executors, the administrators, or the person or persons to whom the Option
may be transferred by will or by the laws of descent and distribution, the word
"Optionee" shall be deemed to include such person or persons.
SECTION 8. Non-Transferability. The Option is not transferable by the
Optionee otherwise than by will or the laws of descent and distribution and are
exercisable during the Optionee's lifetime only by Optionee. No assignment or
transfer of the Option, or of the rights represented thereby, whether voluntary
or involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right herein whatsoever, but immediately upon such assignment or transfer the
Option shall terminate and become of no further effect.
SECTION 9. Rights as Stockholder. No shares of Stock shall be issued in
respect of the exercise of an Option until full payment therefor has been made.
The holder of an Option shall have no rights as a shareholder with respect to
any shares covered by an Option until the date a certificate for such shares is
issued to him or her. Except as otherwise provided herein, no adjustments shall
be made for dividends or distributions of 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; No Right
to Employment.
(a) Neither the Plan nor the existence of any Option shall affect in
any way the right or power of the Company or its shareholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stocks ahead of or convertible into or otherwise affecting the
Stock or the rights thereof, 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.
(b) In addition, the existence of any Option shall not be deemed to
limit or restrict the right of the Company to terminate an Optionee's employment
at any time, for any reason, with or without Cause.
SECTION 11. Adjustment of and Changes in Stock. In the event of any merger,
consolidation, recapitalization, reclassification, stock split, stock dividend,
distribution of property, special cash dividend, or other change in corporate
structure affecting the Stock, the Board shall make such equitable adjustments,
if any, as it deems appropriate in the number and class of shares subject to,
and the exercise price of, outstanding Options granted under the Plan or
available to be granted under the Plan. The foregoing equitable adjustment shall
be determined by the Board in its sole discretion.
SECTION 12. Compliance with Law. Notwithstanding any of the provisions
hereof, the Optionee hereby agrees that Optionee will not exercise the Option,
and that the Company will not be obligated to issue or transfer any shares 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
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Company of any provisions of any law or regulation of any governmental
authority. Any determination in this connection by the Board shall be final,
binding and conclusive.
SECTION 13. Tax Withholding. The Optionee agrees as a condition of this
Agreement, to pay to the Company, or make arrangements satisfactory to the
Company regarding payment to the Company of, the aggregate amount of federal,
state and local income and payroll taxes that the Company is required to
withhold in connection with the exercise of the Option.
SECTION 14. 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 15. Non-Qualified Option. The Option is not an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
SECTION 16. Binding Effect. Subject to Section 7 hereof, this Agreement
shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.
SECTION 17. Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the Netherlands Antilles.
SECTION 18. Signature in 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.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ORTHOFIX INTERNATIONAL N.V.
By:
---------------------------------
Name:
Title
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Optionee
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