Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report 89 435K
3: EX-10.11 Employment Agreement-Mason 17 63K
2: EX-10.5 Form Performnce Acceleratd Stock Option Inducemnt 11 50K
4: EX-14.1 Code of Ethics 23 68K
5: EX-21.1 List of Subsidiaries of the Company 1 6K
6: EX-23.1 Consent of Independent Auditors 1 8K
7: EX-23.2 Consent of Independent Accountants 1 7K
8: EX-31.1 CEO Certification 2± 10K
9: EX-31.2 CFO Certification 2± 10K
10: EX-32.1 Section 1350 CEO Certification 1 7K
11: EX-32.2 Section 1350 CFO Certification 1 7K
EX-10.11 — Employment Agreement-Mason
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[ORTHOFIX LOGO]
EXECUTION COPY
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EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
20th of November, 2003, by and between Orthofix International N.V., Inc., a
company organized under the laws of the Netherlands Antilles, ("ORTHOFIX"), and
Bradley R. Mason ("Employee").
W I T N E S S E T H:
WHEREAS, in connection with the transaction contemplated by the
Acquisition Agreement, dated as of November 20, 2003 (the "Acquisition
Agreement"), among ORTHOFIX, Trevor Acquisition, Inc., a Delaware corporation
and an indirect wholly owned subsidiary of ORTHOFIX, Breg, Inc., a California
corporation ("Employer"), and Bradley R. Mason, as shareholders' representative,
ORTHOFIX desires to have the benefits of Employee's knowledge and experience as
a full-time senior executive of Employer without distraction by
employment-related uncertainties and ORTHOFIX considers such employment a vital
element to protecting and enhancing the best interests of ORTHOFIX and its
subsidiaries and shareholders, and Employee desires to be employed full-time
with ORTHOFIX.
WHEREAS, ORTHOFIX desires to assure itself of the services of Employee
to ORTHOFIX, and Employee is willing to render services to ORTHOFIX on the terms
and subject to the conditions set forth in this Agreement.
WHEREAS, pursuant to the terms of the Acquisition Agreement and the
Voting and Subscription Agreement, dated as of November 20, 2003, Employee, who
is a substantial shareholder of Breg, Inc., will vote his shares of common
stock, no par value, of Breg, Inc. in favor of a business combination
transaction pursuant to which Trevor Acquisition, Inc., a Delaware corporation
and an indirect wholly owned subsidiary of ORTHOFIX, will merge with and into
Breg, Inc. and Employee will receive the Merger Consideration (as defined in the
Acquisition Agreement) in exchange for his shares of common stock of Employer.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the parties agree as follows:
1. Effectiveness of this Agreement.
This Agreement shall constitute a binding obligation of ORTHOFIX and
Employee upon execution hereof; provided that, notwithstanding any other
provision of this Agreement, the terms hereof shall become automatically
effective upon the consummation of the transaction contemplated in the
Acquisition Agreement as of the Effective Time (as defined in the Acquisition
Agreement) (the "Effective Date"). In the event that the Acquisition Agreement
is terminated for any reason prior to the Effective Time (as defined in the
Acquisition Agreement) or the Effective Time (as defined in the
PRIVILEGED & CONFIDENTIAL
Acquisition Agreement) does not occur, this Agreement shall be null and void and
shall be terminated without further obligation or liability of either Employee
or ORTHOFIX, or any of its subsidiaries or affiliates.
2. Term.
ORTHOFIX hereby agrees to employ Employee for a minimum two-year
period commencing on the Effective Date and ending on the second anniversary
thereof, unless sooner terminated as provided in Sections 6 and 7 of this
Agreement. Effective as of the second anniversary of the Effective Date and the
third anniversary of the Effective Date, the term of Employee's employment with
ORTHOFIX shall be automatically extended for one additional year beyond the
minimum two-year period, unless either party hereto delivers to the other party
a written notice of its or his election not to extend such employment, at least
sixty (60) days prior to such date. In addition, if a Change of Control (as
defined in Section 8(d)) occurs when less than one-year remains prior to the
expiration of Employee's term of employment hereunder, such term shall be
automatically extended until the first anniversary of the date on which the
Change of Control first occurred. The period during which Employee is employed
by ORTHOFIX hereunder is referred to herein as the "Employment Period."
3. Duties.
Subject to the terms and conditions of this Agreement, Employee shall
serve as the President of Employer and shall exercise the authority and assume
the responsibilities of the President, of a company of the size and nature of
Employer, including without limitation such positions and duties with ORTHOFIX
or any of its other subsidiaries as are assigned by the Board of Directors of
ORTHOFIX. Throughout the Employment Period, Employee agrees to devote
substantially all of Employee's time, attention and best efforts during normal
business hours (subject to vacations, sick leave and other absences in
accordance with the policies of ORTHOFIX as in effect from time to time for
executive officers of Employer prior to a Change of Control) to the performance
of his duties. Without the prior approval of the Chief Executive Officer or the
Board of Directors of ORTHOFIX, during the Employment Period Employee will not
render any services as a director, trustee, officer, employee, or consultant to
any business or other organization.
4. Compensation.
During the Employment Period, ORTHOFIX shall compensate Employee for
the services rendered under this Agreement as follows:
(a) A base annual salary determined by the Board of Directors or
Compensation Committee of ORTHOFIX consistent with its practices for
executive officers of Employer, but not less than $250,000 per year,
payable in accordance with the customary payroll practices of ORTHOFIX
for the payment of executive officers of Employer;
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PRIVILEGED & CONFIDENTIAL
(b) Such bonuses under ORTHOFIX's Executive Annual Incentive
Plan, as amended, or subsequent plan, if any, as shall be determined
by the Board of Directors or Chief Executive Officer of ORTHOFIX
consistent with its practices for executive officers of Employer;
(c) If Employee's base annual salary is increased at any time, it
shall not thereafter be decreased during the Employment Period, unless
such decrease is the result of a general reduction (on the same
percentage basis) affecting the base salaries of substantially all
other executive officers of Employer and is subject to subsection (a)
above; and
(d) An automobile allowance of not less than $900 per month, or
in such greater amount as may be payable pursuant to any automobile
allowance plan or program maintained by ORTHOFIX for the executive
officers of Employer.
5. Employee Benefits.
(a) During the Employment Period, Employee shall be entitled, on
a basis commensurate with Employee's position with Employer, to full
participation in, and service credit for benefits as provided under,
all life, accident, medical payment, health and disability insurance,
retirement, pension, salary continuation, expense reimbursement and
other employee benefit and perquisite policies, plans, programs and
arrangements that generally are made available to executive officers
of Employer, except for such arrangements that the Board of Directors
of ORTHOFIX, in its sole discretion, shall adopt for select employees
to compensate them for special or extenuating circumstances.
(b) During the Employment Period, Employee shall be entitled to
annual vacation leave, at full pay, as may be provided by ORTHOFIX's
vacation policy applicable to executive officers of Employer.
(c) Effective upon the Effective Date, Employee shall be granted
performance accelerated stock options pursuant to a Performance
Accelerated Stock Options Agreement, dated November 20, 2003 (the
"PASO Agreement"), to purchase from ORTHOFIX one hundred and fifty
thousand (150,000) shares of common stock in accordance with the terms
and conditions specified in the Performance Accelerated Stock Options
Agreement.
(d) Nothing in this Agreement shall limit Employee's
participation in any other benefit plans or arrangements as are from
time to time approved by ORTHOFIX, as determined by the Board of
Directors of ORTHOFIX, in its sole discretion.
(e) Under no circumstances will Employee's place of employment be
moved by ORTHOFIX more than 25 miles from Employee's current work
location, without the express consent of Employee.
6. Termination by ORTHOFIX. Employee's employment hereunder may be
terminated by ORTHOFIX during the Employment Period without any breach of this
Agreement, and
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PRIVILEGED & CONFIDENTIAL
Employee will not be entitled to the benefits provided by Sections 8 and 9
hereof, only under the following circumstances:
(a) Death, Total Disability or Retirement. Employee's employment
shall be deemed terminated by ORTHOFIX upon Employee's death or
retirement. In addition, if as a result of Employee's incapacity
resulting from physical or mental illness or disease that is likely to
be permanent, Employee shall have been unable to perform Employee's
duties hereunder for a period of more than 120 consecutive days during
any 12-month period, and Employee is qualified and eligible to receive
disability benefits under ORTHOFIX's long-term disability plan then in
effect for executive officers of Employer, ORTHOFIX may terminate
Employee's employment hereunder.
(b) Cause. ORTHOFIX may terminate Employee's employment hereunder
for Cause, which for purposes of this Agreement shall be defined to
mean (i) the willful and continued failure by Employee to follow the
reasonable instructions of the Board of Directors of ORTHOFIX or Chief
Executive Officer of ORTHOFIX after written notice of such failure has
been given to Employee by the Board of Directors of ORTHOFIX or Chief
Executive Officer of ORTHOFIX; (ii) the willful commission by Employee
of acts that are dishonest and demonstrably and materially injurious
to ORTHOFIX or its subsidiaries, monetarily or otherwise; (iii) the
commission by Employee of a felonious act; (iv) drug addiction; (v)
intentional wrongful disclosure of Confidential Information (as
defined in Section 16) or (vi) intentional wrongful engagement in any
Competitive Activity (as defined in Section 14).
The termination of Employee's employment by ORTHOFIX during the
Employment Period for any reason other than those specified in this Section 6
shall be deemed to be a termination without cause. No breach or default by
Employee shall be deemed to have occurred hereunder unless written notice
thereof shall have been given by ORTHOFIX to Employee within 60 days after
ORTHOFIX first learns of such breach or default and it is not cured within 30
days after notice thereof is given to Employee.
Notwithstanding anything to the contrary, in the event Employee's
employment is terminated for any reason at any time by ORTHOFIX or Employee
terminates Employee's employment for any reason at any time, Employee shall be
required to relinquish his equity interest of one-tenth of one percent (0.1%) in
Breg Mexico S. de R.I. de C.V. to ORTHOFIX for no consideration prior to or on
the date of his termination of employment.
7. Termination by Employee. Employee shall be entitled to terminate
Employee's employment, with the right to severance compensation and benefits as
provided in this Agreement, during the Employment Period for Good Reason;
provided, that Employee terminates Employee's employment with ORTHOFIX not later
than 90 days following the occurrence of the event constituting Good Reason. For
purposes of this Agreement, "Good Reason" means the occurrence of any of the
following:
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PRIVILEGED & CONFIDENTIAL
(a) Without the express written consent of Employee, any duties
are assigned to Employee that are materially inconsistent with
Employee's position, duties and status with ORTHOFIX as contemplated
by this Agreement;
(b) Any action by ORTHOFIX that results in a material adverse
change in the nature or scope of the position, duties, authorities,
responsibilities or functions of Employee with ORTHOFIX as
contemplated by this Agreement, except for strategic reallocations of
the personnel reporting to Employee;
(c) The base annual salary of Employee, as the same may hereafter
be increased from time to time, is reduced, unless the reduction is a
general reduction (on the same percentage basis) affecting the base
salaries of substantially all other executive officers of Employer;
there is a change or termination of Employee's right to participate,
on a basis substantially consistent with practices applicable to
executive officers of Employer generally on the Effective Date, in any
policy, plan, program or arrangement of the type referred to in
Section 5(c) of this Agreement; or there is a termination or denial of
Employee's right, on a basis substantially consistent with practices
applicable generally to executive officers of Employer on the
Effective Date, to benefits of the type referred to in Section 5(a) of
this Agreement;
(d) Without the express consent of Employee, the permanent
relocation by ORTHOFIX of Employee to a location not within 25 miles
of Employee's current work location; and
(e) Without limiting the generality or effect of the foregoing,
ORTHOFIX fails to comply with any of its obligations hereunder in any
material respect.
Termination by Employee of Employee's employment with ORTHOFIX
pursuant to this Section 7 shall be deemed to be termination of Employee's
employment by ORTHOFIX without Cause.
Notwithstanding anything to the contrary, in the event Employee's
employment is terminated for any reason at any time by ORTHOFIX or Employee
terminates Employee's employment for any reason at any time, Employee shall be
required to relinquish his equity interest of one-tenth of one percent (0.1%) in
Breg Mexico S. de R.I. de C.V. to ORTHOFIX for no consideration prior to or on
the date of his termination of employment.
8. Severance Payment after Change of Control.
(a) If, during the Employment Period and following the occurrence
of a Change of Control, ORTHOFIX terminates Employee's employment
without cause or an event occurs as a result of which Employee
terminates Employee's employment pursuant to Section 7 hereof,
Employee shall be entitled to a lump sum severance payment equal to
one year of Employee's Base Amount (as defined in subsection (b)).
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PRIVILEGED & CONFIDENTIAL
(b) As used in this Agreement, "Base Amount" shall mean an
amount equal to the sum of:
(i) The average of Employee's annual base salary at the
highest rate in effect in the 90-day period immediately
prior to the termination of Employee's employment with
ORTHOFIX and Employee's annual base salary for the
annual compensation period immediately preceding the
annual compensation period in which termination of
Employee's employment with ORTHOFIX occurs or, if
greater, the average of Employee's annual base salary
in effect immediately prior to the date on which a
Change of Control occurs and Employee's annual base
salary for the annual compensation period immediately
preceding the annual compensation period in which a
Change of Control occurs provided, however, that if
Employee was not employed by ORTHOFIX during such
immediately preceding compensation period, the amount
included pursuant to this clause shall be the greater
of Employee's annual base salary at the highest rate in
effect in the 90-day period immediately prior to (A)
the termination of Employee's employment with ORTHOFIX
or (B) the date on which a Change of Control occurs;
plus
(ii) The average incentive compensation payable to Employee
with respect to the two consecutive annual incentive
compensation periods ending immediately prior to the
termination of Employee's employment with ORTHOFIX or,
if greater, with respect to the two consecutive annual
incentive compensation periods ending immediately prior
to the date on which a Change of Control occurs;
provided, however, that if Employee was not eligible to
participate in ORTHOFIX's incentive compensation
program for such two consecutive incentive compensation
periods, the amount included pursuant to this clause
shall be the most recent incentive compensation paid or
payable to Employee by ORTHOFIX; plus
(iii) The monthly automobile allowance Employee is entitled
to receive pursuant to Section 4(d) hereof, multiplied
by 12.
(c) If a Change of Control shall occur, notwithstanding the terms
of any applicable plan or arrangement to the contrary:
(i) Employee shall have immediate vesting of, and the
immediate right to exercise, all stock options and
stock appreciation rights theretofore granted to
Employee; provided, however, that all terms and
conditions, including, without limitation, those
relating to vesting and exercisability, of the
performance accelerated stock options granted pursuant
to the PASO Agreement shall be governed by the terms
and conditions contained in the PASO Agreement; and
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PRIVILEGED & CONFIDENTIAL
(ii) Any risk of forfeiture included in restricted stock
grants theretofore made to Employee shall immediately
lapse and Employee shall have immediate vesting of
Employee's rights in all other employee benefit and
compensation plans; provided, however, that Employee's
rights under any plan or arrangement of ORTHOFIX
described in Section 280G(b)(6) of the Internal Revenue
Code of 1986, as amended (the "Code"), or any successor
provision thereto, shall not be altered as a result of
this.
(d) A Change of Control shall occur, notwithstanding the terms of
any applicable plan or arrangement to the contrary, upon 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 ORTHOFIX representing 20% or more of
the combined voting power of ORTHOFIX's then
outstanding securities entitled to vote generally in
the election of directors (unless such person is known
by Employee to be already such beneficial owner on the
date of this Agreement);
(ii) Individuals who, as of the Effective Date, constitute
the Board of Directors of ORTHOFIX cease for any reason
to constitute at least a majority of the Board of
Directors of ORTHOFIX, unless any such change is
approved by a unanimous vote of the members of the
Board of Directors of ORTHOFIX in office immediately
prior to such cessation;
(iii) ORTHOFIX is merged, consolidated or reorganized into,
or with another corporation or other legal person, or
securities of ORTHOFIX 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 ORTHOFIX immediately prior to such
transaction;
(iv) ORTHOFIX, 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
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PRIVILEGED & CONFIDENTIAL
vote generally in the election of directors of ORTHOFIX
immediately prior to such sale;
(v) ORTHOFIX 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 ORTHOFIX's four most recently completed
fiscal quarters for which reports have been filed under
the Exchange Act) of ORTHOFIX and its subsidiaries
immediately prior thereto;
(vi) ORTHOFIX 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 ORTHOFIX
has or may have occurred or will or may occur in the
future pursuant to any then-existing contract or
transaction;
(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; or
(viii) Employee is terminated by ORTHOFIX, or removed from
Employee's office or position with ORTHOFIX, without
cause within the period of 90 days before the
occurrence of a Change of Control.
(e) Notwithstanding any provision of this Agreement to the
contrary, if any amount or benefit to be paid or provided under this
Agreement or otherwise would be an "Excess Parachute Payment," within
the meaning of Section 280G of the Code, or any successor provision
thereto, but for the application of this sentence, then the payments
and benefits to be so paid or provided shall be reduced to the minimum
extent necessary (but in no event to less than zero), so that no
portion of any such payment or benefit as so reduced, constitutes an
Excess Parachute Payment. The determination of whether any reduction
in such payments or benefits to be provided under this Agreement or
otherwise is required pursuant to the preceding sentence shall be made
at the expense of ORTHOFIX, if requested by Employee or ORTHOFIX, by
ORTHOFIX's independent accountants. If any payment or benefit intended
to be provided under this Agreement or otherwise is required pursuant
to this subsection (e) Employee shall be entitled to designate the
payments and/or benefits to be so reduced in order to give effect to
this subsection (e). ORTHOFIX shall provide Employee with all
information reasonably requested by Employee to ORTHOFIX shall provide
Employer with all information reasonably requested by Employee to
permit Employee to make such designation. In the event that Employee
fails to make such designation within ten (10) business days of the
termination of Employee's employment with ORTHOFIX, ORTHOFIX may
effect such reduction in any manner it deems appropriate.
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PRIVILEGED & CONFIDENTIAL
Notwithstanding the provisions of Section 8(d)(i) or 8(d)(vi) hereof, unless
otherwise determined in a specific case by majority vote of the Board of
Directors of ORTHOFIX, 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 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
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
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.
(f) If Employee's employment is not terminated as provided in
Section 8(a), then the rights and obligations of the parties for the
balance of the Employment Period shall be governed by this Agreement
exclusive of the provisions contained in this Section 8, except this
Section 8 shall continue and become applicable if a subsequent Change
of Control occurs during the Employment Period.
Notwithstanding anything to the contrary, in the event Employee's
employment is terminated for any reason at any time by ORTHOFIX or Employee
terminates Employee's employment for any reason at any time, Employee shall be
required to relinquish his equity interest of one-tenth of one percent (0.1%) in
Breg Mexico S. de R.I. de C.V. to ORTHOFIX for no consideration prior to or on
the date of his termination of employment.
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PRIVILEGED & CONFIDENTIAL
9. Other Severance Benefits.
(a) If at any time during the Employment Period, Employee is
terminated without Cause, or Employee resigns for Good Reason,
Employee is not entitled to the severance payment provided by Section
8 hereof, then Employee shall be entitled to be paid a severance
payment equal to one time the Base Amount for termination without
Cause, and one-half time the Base Amount for resignation for Good
Reason.
(b) If, at any time during the Employment Period, Employee is
terminated without Cause, or Employee resigns for Good Reason, then
Employee shall be entitled without remuneration to ORTHOFIX to
continuation or provision of basic employee group benefits referred to
in Section 4(a) that are welfare benefits, but not pension, retirement
or similar compensatory benefits, for Employee and Employee's
dependents substantially similar to those they are receiving or to
which they are entitled immediately prior to the termination of
Employee's employment for the lesser of one year after termination or
until Employee secures new employment. Notwithstanding anything to the
contrary herein, all terms and conditions, including, without
limitation, those relating to vesting and exercisability, of the
performance accelerated stock options granted pursuant to the PASO
Agreement shall be governed by the terms and conditions contained in
the PASO Agreement. Any stock option agreements for Employee (other
than the PASO Agreement) shall provide for a continuance of the option
exercise period for at least one year from the date of Employee's
termination, without Cause and at least one-half year from the date of
Employee's resignation for Good Reason, except that in the case of
Employee's death, continuance of the option exercise period shall be
at least two years and the exercise period of an option shall not be
extended beyond the date on which it would have terminated had
Employee continued to be employed by ORTHOFIX. The preceding sentence
shall not apply to any "incentive stock option," as that term is
defined in Section 422 of the Code, heretofore granted to Employee.
(c) If, at any time during the Employment Period, Employee is
terminated without Cause, or Employee resigns for Good Reason,
ORTHOFIX shall promptly (and in any event within five business days
after a request by Employee therefor) either pay or reimburse Employee
for the costs and expenses of any executive outplacement firm selected
by Employee; provided, however, that ORTHOFIX's liability hereunder
shall be limited to the first $20,000 of such expenses incurred by
Employee. Employee shall provide ORTHOFIX with reasonable
documentation of the occurrence of such outplacement costs and
expenses.
10. Timing of Payment. Any severance or other payment payable to
Employee under this Agreement shall be paid within thirty (30) days after the
event giving rise to Employee's separation from employment.
11. Other Benefits. The provisions of Sections 8 and 9 shall not
affect Employee's participation in, or terminating distributions and vested
rights under, any pension, profit sharing,
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PRIVILEGED & CONFIDENTIAL
insurance or other employee benefit plan of ORTHOFIX to which Employee is
entitled pursuant to the terms of such plans, except for the acceleration of
vested benefits in certain employee benefits pursuant to Section 8(c) and as
provided in Section 9(b).
12. No Mitigation Obligation. It will be difficult, and may be
impossible, for Employee to find reasonably comparable employment following the
termination of Employee's employment with ORTHOFIX, and the non-competition
covenant contained in Section 14 hereof will further limit the employment
opportunities for Employee. In addition, ORTHOFIX's severance pay policy
applicable in general to its salaried employees does not provide for mitigation,
offset or reduction of any severance payment received thereunder. Accordingly,
the parties hereto expressly agree that the payment of severance compensation by
ORTHOFIX to Employee in accordance with the terms of this Agreement will be
liquidated damages, and that Employee shall not be required to seek other
employment, or otherwise, to mitigate any payment provided for hereunder.
13. No Right to Set Off. ORTHOFIX shall not be entitled to set off
against amounts payable to Employee hereunder any amounts earned by Employee in
other employment, or otherwise, after termination of his employment with
ORTHOFIX, or any amounts which might have been earned by Employee in other
employment had he sought such other employment.
14. Competitive Activity. During period ending one year following the
termination of Employee's employment with ORTHOFIX, if Employee shall have
received or shall be receiving the payments and benefits Employee is entitled to
receive under this Agreement, if any, Employee shall not, without the prior
written consent of the Board of Directors of ORTHOFIX, engage in any Competitive
Activity. For purposes of this Agreement, the term "Competitive Activity" means
Employee's participation, without the written consent of the Chief Executive
Officer of ORTHOFIX, in the management of any business enterprise if such
enterprise engages in substantial and direct competition with ORTHOFIX or any of
its subsidiaries or affiliates and such enterprise's sales of any product or
service competitive with any product or service of ORTHOFIX or any of its
subsidiaries or affiliates amounted to 25% of such enterprise's net sales for
its most recently completed fiscal year, and if the ORTHOFIX net sales of said
product or service amounted to 25% of ORTHOFIX's net sales for its most recently
completed fiscal year. "Competitive Activity" shall not include:
(a) The mere ownership of securities in any such enterprise and
exercise of rights appurtenant thereto or
(b) Participation in management of any such enterprise other than
in connection with the competitive operations of such enterprise.
15. No Solicitation of Customers; Employees. During a period ending
two years following the termination of Employee's employment with ORTHOFIX,
Employee shall not, without the prior written consent of the Board of Directors
of ORTHOFIX, directly or indirectly, for the purpose of conducting or engaging
in any business that manufacturers, produces or supplies products or services of
the kind manufactured, produced or supplied by the Company: (i) call upon,
solicit, advise or
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PRIVILEGED & CONFIDENTIAL
otherwise do, or attempt to do, business that pertains to the manufacture,
production or supply of products or services of the kind manufactured, produced
or supplied by ORTHOFIX or any of its subsidiaries or affiliates with any
clients or customers of ORTHOFIX or any of its subsidiaries or affiliates with
whom ORTHOFIX or any of its subsidiaries or affiliates had any prior dealings;
or (ii) take away or interfere or attempt to interfere with any custom, trade,
business or patronage of ORTHOFIX or any of its subsidiaries or affiliates; or
(iii) solicit for employment any person who is, or was within the then most
recent six-month period, an employee of ORTHOFIX or any of its subsidiaries or
affiliates.
16. Non-Disclosure of Information.
(a) For so long as Employee is employed by ORTHOFIX, and
thereafter except in the performance of Employee's obligations to
ORTHOFIX or one of its subsidiaries, Employee shall not, directly or
indirectly, use or authorize the use of any confidential or other
proprietary information of ORTHOFIX or one of its subsidiaries
("Confidential Information"), including but not limited to trade
secrets, product specifications and ideas, manuals, systems,
procedures, confidential reports, customer lists, sales or
distribution methods, patentable information and data and financial
information concerning ORTHOFIX or one of its subsidiaries, which
Confidential Information has been made known (whether or not with the
knowledge and permission of ORTHOFIX, and whether or not developed,
devised or otherwise created in whole or in part by the efforts of
Employee) to Employee by reason of Employee's activities on behalf of
ORTHOFIX or one of its subsidiaries. Employee shall not reveal,
divulge or make known any Confidential Information to any individual,
partnership, firm, corporation, or other business organization
whatsoever except in performance of Employee's obligations to
ORTHOFIX, with the express permission of the Board of Directors of
ORTHOFIX or its authorized representative or as otherwise required by
operation of law.
(b) Employee confirms that all Confidential Information is the
exclusive property of ORTHOFIX. All business records, papers and
documents kept or made by Employee relating to the business of
ORTHOFIX or any of its subsidiaries or affiliates shall be and remain
the property of ORTHOFIX and shall remain in the possession of
ORTHOFIX. Upon the termination of Employee's employment with ORTHOFIX,
or upon the request of ORTHOFIX, at any time, Employee shall promptly
deliver to ORTHOFIX, and shall retain no copies of, any written
materials, records and documents made by Employee or coming into
Employee's possession concerning the business and affairs of ORTHOFIX
or any of its subsidiaries or affiliates that contain Confidential
Information.
(c) Without intending to limit the remedies available to
ORTHOFIX, Employee acknowledges that a breach of any of the covenants
contained in Sections 14, 15 and 16 hereof may result in material
irreparable injury to ORTHOFIX or one of its subsidiaries for which
there is not adequate remedy at law, that it may not be possible to
measure damages for such injuries precisely and that, in the event of
such breach or threat thereof, ORTHOFIX may be entitled to obtain a
temporary restraining order and/or a preliminary or permanent
injunction restraining
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PRIVILEGED & CONFIDENTIAL
Employee from engaging in activities prohibited by Sections 14, 15 and
16 hereof or such other relief as many may be required to specifically
enforce any of the covenants in such Sections.
17. Inventions.
(a) Employee shall promptly and fully disclose to ORTHOFIX any
and all ideas, improvements, discoveries and inventions, whether or
not they are believed to be patentable ("Inventions"), which Employee
conceives of or first actually reduces to practice, either solely or
jointly with others, during Employee's employment with ORTHOFIX, and
which relate to the business now or thereafter carried on or
contemplated by ORTHOFIX or any of its subsidiaries or affiliates or
which result from any work performed by Employee for ORTHOFIX or any
of its subsidiaries or affiliates.
(b) Employee acknowledges and agrees that all Inventions shall be
the sole and exclusive property of ORTHOFIX, and during the term of
Employee's employment with ORTHOFIX and thereafter, whenever requested
to do so by ORTHOFIX, Employee shall execute and assign any and all
applications, assignments and other instruments that ORTHOFIX shall
deem necessary or appropriate in order to apply for and obtain Letters
Patent of the United States and/or of any foreign countries for such
Inventions and in order to assign and convey to ORTHOFIX or its
nominee the sole and exclusive right, title and interest in and to
such Inventions.
(c) ORTHOFIX acknowledges and agrees that the provisions of this
Section 17 do not apply to an Invention for which no equipment,
supplies, facility or Confidential Information of ORTHOFIX or any of
its subsidiaries or affiliates was used, that was developed entirely
on Employee's own time, and that does not relate (A) directly to the
business of ORTHOFIX or any of its subsidiaries or affiliates or (B)
to the actual or demonstrably anticipated research or development of
ORTHOFIX or any of its subsidiaries or affiliates, or (C) that does
not result from any work performed by Employee for ORTHOFIX or any of
its subsidiaries or affiliates.
18. Binding Arbitration: Legal Fees and Expenses. It is the intent of
ORTHOFIX that Employee not be required to bear the legal fees and related
expenses associated with the enforcement or defense of Employee's rights under
this Agreement by litigation or other legal action because having to do so would
substantially detract from the benefits intended to be extended to Employee
hereunder. Accordingly, the parties hereto agree as follows:
(a) Any dispute or controversy arising under or in connection
with this Agreement prior to the occurrence of a Change of Control
shall be resolved exclusively by binding arbitration in California, in
accordance with the rules of the American Arbitration Association then
in effect. Judgment may be entered on the arbitrator's award in any
court having jurisdiction. Each party shall bear his or its own costs
and expenses of arbitration, but if Employee is the prevailing party
in such arbitration, in whole, or in part, ORTHOFIX shall pay
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PRIVILEGED & CONFIDENTIAL
to Employee as part of the arbitration award to Employee an amount
equal to all attorneys' and related fees, costs and expenses incurred
by Employee in connection with such arbitration.
(b) If, following the occurrence of a Change of Control, Employee
determines, in good faith, that ORTHOFIX has failed to comply with any
of its obligations under this Agreement or ORTHOFIX or any other
person takes or threatens to take action to declare this Agreement
void or unenforceable, or institutes any litigation, arbitration
proceeding or other action or proceeding designed to deny, or to
recover from, Employee the benefits provided or intended to be
provided to Employee hereunder, ORTHOFIX irrevocably authorizes
Employee from time to time to retain counsel of Employee's choice, at
the expense of ORTHOFIX as hereafter provided, to represent Employee
in connection with the initiation or defense of any litigation,
arbitration or other legal action, whether by or against ORTHOFIX or
any director, officer, stockholder or other person affiliated with
ORTHOFIX, in any jurisdiction. Within ten (10) business days after
receipt from Employee of a request referencing this Section 18(b),
ORTHOFIX shall, from time to time, pay or reimburse Employee for fees
and expenses incurred, or reasonably anticipated to be incurred, in
accordance with such request and this Section 18(b). Without respect
to whether Employee prevails, in whole or in part, in connection with
any of the foregoing, ORTHOFIX shall pay or cause to be paid and shall
be solely responsible for any and all attorneys' and related fees and
expenses incurred by Employee in connection with any of the foregoing,
excluding any such fees and expenses related to an unsuccessful appeal
filed by Employee of an adjudication on the merits, any motion for a
new trial filed by Employee after such an adjudication that is denied
or any other motion filed by Employee for reconsideration or review of
such an adjudication that is denied.
19. Withholding of Taxes. ORTHOFIX may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation ruling.
20. Notices. All notices, requests, demands, and other communications
called for or contemplated hereunder shall be in writing and shall be deemed to
have been duly given when delivered personally or when mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the parties, their successors in interest or assignees at the
following addresses or such other addresses as the parties may designate by
notice in the manner aforesaid:
If to ORTHOFIX:
Orthofix International N.V.
10115 Kincey Avenue, Suite 250
Huntersville, NC 28078
Facsimile No.: (704) 948-2690
Attention: Thomas Hein
Email: Tomhein@orthofix.com
14
PRIVILEGED & CONFIDENTIAL
with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
Facsimile No.: (212) 848-7179
Attention: John J. Cannon, III
Email: jcannon@shearman.com
If to Employee:
21. Law Governing. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without giving effect to
the principles of conflict of laws of such State.
22. Severability. ORTHOFIX and Employee recognize that the laws and
public policies of various jurisdictions may differ as to the validity and
enforceability of covenants similar to those set forth herein. It is the
intention of the parties that the provisions hereof be enforced to the fullest
extent permissible under the laws and policies of each jurisdiction in which
enforcement may be sought, and that the unenforceability (or the modification to
conform to such laws or policies) of any provisions hereof shall not render
unenforceable, or impair, the remainder of the provisions hereof. Accordingly,
if at the time of enforcement of any provision hereof, an arbitrator or a court
of competent jurisdiction holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope, or geographic area reasonable under such
circumstances will be substituted for the stated period, scope or geographical
area and that the arbitrator or the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and
geographical area permitted by law.
23. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. Any provision of this Agreement held to be invalid or unenforceable
shall be reformed to the extent necessary to make it valid and enforceable.
24. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof,
superseding all negotiations, prior discussions, preliminary agreements and
employment arrangements between Employee and ORTHOFIX or any of ORTHOFIX's
subsidiaries, affiliates or other related entities. This Agreement may not be
amended, nor may any of its provisions be waived, except in writing executed by
the parties hereto.
25. Effect on Successors in Interest. This Agreement shall inure to
the benefit of and be binding upon the heirs, administrators, executors and
successors of each of the parties, hereto including without limitation any
person acquiring, directly or indirectly, all or substantially all of the
15
PRIVILEGED & CONFIDENTIAL
business and/or assets of ORTHOFIX by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed
"ORTHOFIX" for purposes of this Agreement.
26. Agreement. This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in this Section. Without limiting the generality of the
foregoing, Employee's right to receive payments hereunder shall not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer Employee's will or by the laws
of descent and distribution and, in the event of any attempted assignment or
transfer contrary to this Section, ORTHOFIX shall have no liability to pay any
amount so attempted to be assigned, transferred or delegated.
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PRIVILEGED & CONFIDENTIAL
Executed and delivered as of the date first above written.
ORTHOFIX INTERNATIONAL N.V. EMPLOYEE
/s/ Charles Federico /s/ Bradley R. Mason
------------------------------------ -------------------------------------
By: Charles Federico Employee
------------------------------------
Title: Chief Executive Officer
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PRIVILEGED & CONFIDENTIAL
Dates Referenced Herein and Documents Incorporated by Reference
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