Orthofix Medical Inc 8-K, filed Jan 5, 2023
Orthofix Medical Inc. (OFIX)
About this 8-K
Orthofix Medical Inc filed this 8-K on January 5, 2023, reporting on events of January 3, 2023.
Items reported
- Item 1.02: Ended a material agreement
- Item 2.01: Completed an acquisition or sale of assets
- Item 2.03: New debt or off-balance-sheet obligation
- Item 5.02: Director or officer change, or executive pay
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Introductory Note
Effective at 12:01 a.m. Eastern Time on January 5, 2023, Orthofix Medical Inc., a Delaware corporation (“Orthofix”), completed the transactions contemplated by the definitive Agreement and Plan of Merger, dated as of October 10, 2022 (the “Merger Agreement”), by and among Orthofix, Orca Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of Orthofix (“Merger Sub”) and SeaSpine Holdings Corporation, a Delaware corporation (“SeaSpine”). Pursuant to the Merger Agreement, Orthofix and SeaSpine combined through a merger of SeaSpine with and into Merger Sub, with Merger Sub continuing as the surviving entity and a wholly owned subsidiary of Orthofix (the “Merger”).
| Item 1.02 | Termination of a Material Definitive Agreement. |
In connection with the Merger, on January 5, 2023, SeaSpine is repaying all of the outstanding obligations in respect of principal, interest and fees under the Amended and Restated Credit Agreement (the “Credit Agreement”), dated July 27, 2018, among SeaSpine and Project Maple Leaf Holdings ULC, as guarantors, and SeaSpine Orthopedics Corporation, SeaSpine, Inc., ISOTIS, Inc., SeaSpine Sales LLC, ISOTIS Orthobiologics, Inc., Theken Spine, LLC, SeaSpine Orthopedics Intermediate Co, Inc., 7D Surgical USA Inc. and 7D Surgical ULC, as borrowers, the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent, and terminated all applicable commitments under the Credit Agreement.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The disclosure in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
Subject to the terms and conditions of the Merger Agreement, at the effective time (the “Effective Time”), and as a result of the Merger, each share of common stock of SeaSpine, par value $0.01 per share, issued and outstanding immediately prior to the Effective Time was converted into the right to receive 0.4163 shares of common stock of Orthofix, par value $0.10 per share (the “Orthofix common stock”). No fractional shares of Orthofix common stock were issued in the Merger. As a result of the Merger, former SeaSpine common stockholders will receive approximately 16 million shares of Orthofix common stock for their SeaSpine common shares, excluding shares of Orthofix common stock underlying the equity awards and stock options assumed by Orthofix as a result of the Merger.
In addition, at the Effective Time and as a result of the Merger, Orthofix assumed SeaSpine’s existing equity incentive plans in connection with the Merger, and outstanding SeaSpine equity awards were automatically converted into Orthofix equity awards (on the same vesting schedule and other terms and conditions as existed prior to such conversion). The conversion of such equity awards occurred at the same exchange ratio as applied to SeaSpine common stock in the Merger, and the exercise price of converted SeaSpine stock options were also correspondingly adjusted. The value of any fractional interests of shares of Orthofix common stock to which a holder was otherwise entitled was paid in cash, subject to applicable withholding taxes.
A copy of the Merger Agreement has been previously filed as Exhibit 2.1 to Orthofix’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 11, 2022 and is incorporated herein by reference. The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosure in Item 1.02 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.02 | Departure of Directors of Principal Officers; Election of Directors; Appointment of Principal Officers. |
Appointment of Officers
On January 3, 2023, the board of directors of Orthofix (the “Board”) appointed Keith C. Valentine as Orthofix’s President and Chief Executive Officer (succeeding Jon C. Serbousek, who will now serve as Executive Chairman), John J. Bostjancic as Orthofix’s Chief Financial Officer (succeeding Douglas C. Rice in such role) and Patrick L. Keran as Orthofix’s Chief Legal Officer (succeeding Kimberley A. Elting, who will now serve as President, Global Orthopedics). Each of the foregoing appointments were contingent upon, and became effective as of, the closing of the Merger at the Effective Time.
Keith C. Valentine, 55, served as SeaSpine’s Chief Executive Officer from May 2015 to January 2023 and President from July 2015 to January 2023. He also served on SeaSpine’s board of directors from May 2015 to January 2023. While at SeaSpine, Mr. Valentine oversaw SeaSpine’s formational spin-off transaction and oversaw the development and launch of numerous new products. Prior to joining SeaSpine, Mr. Valentine served as President and Chief Operating Officer of NuVasive, Inc. from January 2007 to January 2015 and as President from December 2004 to January 2007, prior to which he served in various senior executive roles in marketing, development and operations since joining NuVasive in 2001. Previously, Mr. Valentine served as Vice President of Marketing at ORATEC Interventions, Inc., a medical device company acquired by Smith & Nephew PLC, and spent eight years in various roles with Medtronic Sofamor Danek including, Vice President of Marketing for the Rods Division and Group Director for the BMP Biologics program, the Interbody Sales Development Effort, and International Sales and Marketing. Mr. Valentine currently serves on the board of directors of SI-BONE, Inc., a publicly traded medical device company focused on the treatment of musculoskeletal disorders of the sacro-pelvic anatomy, and serves as chair of its nominating and governance committee. Mr. Valentine received a B.B.A. in Management and Biomedical Sciences from Western Michigan University. We believe that Mr. Valentine adds value to our board of directors based on his extensive experience as an executive officer and director of multiple public and private companies in our industry.
John J. Bostjancic, 52, served as SeaSpine’s Chief Financial Officer from March 2015 to January 2023, Treasurer from July 2015 to January 2023, and Senior Vice President from February 2018 to January 2023. While at SeaSpine, Mr. Bostjancic oversaw investor relations, business development, certain treasury functions and finance operations, including accounting, business planning and forecasting, external and internal reporting, tax and competitive intelligence. Previously, Mr. Bostjancic served as Integra LifeSciences Holdings Corporation’s Senior Vice President of Global Supply Chain from February 2012 through November 2014, where he was responsible for global planning, kitting, distribution, logistics and customer service functions and led the project team implementing the U.S. Food and Drug Administration’s “unique device identifier” rule in 2014. From 2008 until January 2012, Mr. Bostjancic was Senior Vice President of Financial Planning & Analysis at Integra. Since Mr. Bostjancic joined Integra in 1999 through his departure in 2014, he held roles of increasing responsibility in the finance organization, including corporate controller from 2003 through 2006. Before joining Integra, Mr. Bostjancic was a manager in the accounting standards team at Merck & Co., Inc., a publicly traded global health care company, from 1998 through 1999 and worked in the business assurance organization at PricewaterhouseCoopers from 1993 through 1998. He received his B.S. in accounting from the College of New Jersey.
Patrick L. Keran, 51, served as SeaSpine’s General Counsel from October 2015 to January 2023, Secretary from June 2016 to January 2023, and Senior Vice President from June 2020 to January 2023. While at SeaSpine, Mr. Keran, oversaw all legal, corporate governance, and compliance matters. Prior to joining SeaSpine, Mr. Keran provided strategic and business advisory services to a variety of life sciences companies, including acting as Chief Legal Officer to NAIA Pharmaceuticals, Inc., a privately held international drug development company. From February 2010 to February 2015, Mr. Keran served as President and Chief Operating Officer of Mast Therapeutics, Inc., a publicly held clinical stage biopharmaceutical company, and from August 2006 to February 2010, he served as its General Counsel. He also served as Mast’s Secretary from September 2006 to February 2015 and as its principal financial officer from July 2009 to January 2013. Previously, from 2004 to 2006, Mr. Keran was Associate General Counsel at Ionis Pharmaceuticals, Inc. (formerly known as Isis Pharmaceuticals, Inc.), a publicly held drug discovery and development company. From 1999 to 2004, Mr. Keran practiced corporate law at the law firms of Heller Ehrman LLP and Brobeck Phleger & Harrison LLP, specializing in public and private financings, licensing arrangements, mergers and acquisitions and corporate governance matters. Mr. Keran is licensed to practice law in the State of California. Mr. Keran received a B.A. from the University of California at San Diego and a J.D. from the University of California at Berkeley, Boalt Hall School of Law.
Other than pursuant to the Merger Agreement, there were no arrangements or understandings between Orthofix’s newly appointed officers and any person pursuant to which they were appointed. None of Orthofix’s newly appointed officers has a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Offer Letters
In connection with the consummation of the Merger, Orthofix entered into offer letters (the “Offer Letters”) with each of Mr. Valentine, Mr. Bostjancic and Mr. Keran. The respective Offer Letters describe the applicable executive officer’s base salary, target bonus, and equity grants being made in connection with consummation of the Merger, and include certain other terms related to the applicable executive officer’s employment following the Merger.
The foregoing description of the Offer Letters does not purport to be complete and is qualified in its entirety by reference to the full text of the Offer Letters, which are filed as Exhibits 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Resignations of Directors
In connection with the Merger and effective as of the Effective Time, Wayne Burris, Lilly Marks, John E. Sicard and Thomas A. West resigned as directors of Orthofix. The decision to resign by each of Ms. Marks and Messrs. Burris, Sicard, and West is not because of a disagreement with Orthofix or the Board on any matter relating to Orthofix’s operations, policies or practices.
Appointment of Directors
On January 3, 2023, consistent with the terms of the Merger Agreement, the Board approved the appointments of Mr. Valentine, Stuart M. Essig, Ph.D., John B. Henneman, III and Shweta Singh Maniar to fill the vacancies created by resignations of Mr. Burris, Ms. Marks, Mr. Sicard, and Mr. West, in each case subject to consummation of the Merger and effective immediately following the Effective Time. These appointments, which were consistent with recommendations made by the Board’s Nominating, Governance and Sustainability Committee, became effective on January 5, 2023. Catherine M. Burzik, Jason M. Hannon, James F. Hinrichs, Michael E. Paolucci and Mr. Serbousek remain as continuing directors. Each new and continuing director will serve until the 2023 annual meeting of Orthofix’s stockholders and until his or her successor is duly elected and qualified. Ms. Burzik, who previously served as Chair of the Board, was appointed Lead Independent Director, and Mr. Serbousek was appointed as Executive Chairman of the Board.
The Board also determined on January 3, 2023, taking into account the consummation of the Merger, that each of Ms. Burzik, Dr. Essig, Mr. Hannon, Mr. Henneman, Mr. Hinrichs, Ms. Maniar and Mr. Paolucci are independent directors under applicable Nasdaq listing standards.
The January 3, 2023 actions by the Board also approved the following Board committee compositions as of immediately following the Effective Time:
| • | Audit and Finance Committee: Mr. Hinrichs (Chair), Dr. Essig and Mr. Hannon |
| • | Compensation and Talent Development Committee: Mr. Paolucci (Chair), Mr. Henneman, Mr. Hinrichs and Ms. Maniar |
| • | Compliance and Ethics Committee: Mr. Hannon (Chair), Ms. Maniar and Mr. Serbousek |
| • | Nominating, Governance and Sustainability Committee: Dr. Essig (Chair), Ms. Burzik, Mr. Henneman and Mr. Paolucci |
The Board has determined (i) (A) that each of the members of the Audit and Finance Committee are independent under applicable Nasdaq listing standards and Rule 10A-3 of Schedule 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (B) that each of such members has the financial sophistication and literacy required under applicable Nasdaq rules, and (C) that Mr. Hinrichs is an “audit committee financial expert” under applicable SEC rules (ii) that each of the members of the Compensation and Talent Development Committee are independent under independent directors under applicable Nasdaq listing standards and satisfy the qualification standards of Section 162(m) of the Internal Revenue Code and Section 16 of the Exchange Act.
Biographies of New Directors
Biographical information for the newly appointed directors is set forth below (except for Mr. Valentine, whose information can be found above under “—Appointment of Officers.”
Stuart M. Essig, Ph.D., 61, served on SeaSpine’s board of directors from June 2015 to January 2023 and served as SeaSpine’s Lead Independent Director from July 2015 to January 2023. Dr. Essig currently serves as Managing Director of Prettybrook Partners LLC, which he cofounded in 2012. He is also currently Chair of the board of directors of Integra LifeSciences Holdings Corporation, where he has served as Chair since January 2012 and as a director since he joined Integra in December 1997. He was Integra’s Chief Executive Officer from December 1997 until January 2012. Before joining Integra, Dr. Essig was Managing Director of the medical technology practice at Goldman, Sachs & Co. Dr. Essig had broad health care experience at Goldman Sachs serving as a senior merger and acquisitions advisor to a broad range of domestic and international medical technology, pharmaceutical and biotechnology clients. Dr. Essig has chaired audit, compensation and nominating and governance committees, served as lead director, and participated in CEO succession processes on the boards of numerous public companies, ranging in size from several hundred million dollars to over $25 billion in levered market capitalization. Dr. Essig currently serves on the board of directors of Idexx Laboratories, Availity, and Breg, Inc. He is a Venture Partner at Wellington Partners Advisory AG, a venture capital firm. He also serves as a Senior Advisor to TowerBrook Capital Partners and Water Street Healthcare Partners. He serves on the Leadership Counsel of the Princeton University School of Engineering and Applied Sciences, and the NACD Compensation Committee Chair Advisory Counsel. Dr. Essig previously served on the board of St. Jude Medical Corporation from 1999 to 2017, prior to its sale to Abbott Corporation. From 2013 until August 2019, he served on the board of directors of Owens and Minor, Inc.; from March 2005 until August 2008, he served on the board of directors of Zimmer Holdings, Inc.; and from 1998 to 2002, he served on the board of directors of Vital Signs, Inc. Dr. Essig has also served on the executive committee, nominating and governance committee and as treasurer of ADVAMED, the Advanced Medical Technology Association. Dr. Essig is also involved in several nonprofit charitable organizations, including from time to time serving on their boards. Dr. Essig received an A.B. degree and graduated with magna cum laude and Phi Beta Kappa honors from the Woodrow Wilson School of Public and International Affairs at Princeton University. Dr. Essig completed his M.B.A. and Ph.D. degrees in Financial Economics from the University of Chicago, Graduate School of Business.
John B. Henneman, III, 61, served on SeaSpine’s board of directors from July 2015 to January 2023. Mr. Henneman has more than 25 years of combined financial and operational management experience in the life sciences industry. Mr. Henneman served as Executive Vice President and Chief Financial Officer of NewLink Genetics Corporation from October 2014 to July 2018, and as its Chief Administrative Officer from July 2018 to November 2018. Prior to joining NewLink Genetics, Mr. Henneman served Integra LifeSciences in various capacities between 1998 and 2014. Before becoming Integra’s Chief Financial Officer in 2007, Mr. Henneman served Integra as General Counsel and Chief Administrative Officer, responsible at various times for Integra’s business development, regulatory affairs, quality systems, clinical affairs, human resources, information systems and legal affairs functions and the management of Integra’s surgical instruments business. Mr. Henneman also serves on the board of directors of R1 RCM, Inc., a public company based in Chicago providing revenue cycle management services to hospitals, Aprea Therapeutics, Inc., a public biotechnology company based in Boston and Stockholm, Anika Therapeutics, Inc., a public medical device company based in Boston focused on joint preservation and health, and Alafair Biosciences, Inc., a privately-held medical device company based in Austin, Texas. Mr. Henneman received an A.B. in politics from Princeton University and a J.D. from the University of Michigan Law School.
Shweta Singh Maniar, 39, served on SeaSpine’s board of directors from April 2021 to January 2023. She has also served on the board of RXSight, Inc. since December 2021. Since July 2018, Ms. Maniar has served as Global Leader, Healthcare & Life Sciences Solutions & Strategy, Google Cloud focused in BioPharma at Google, a multinational technology company that specializes in Internet-related services and products, where she leads vision, strategy, and execution of Google Cloud’s industry product strategy and go-to-market model. Prior to joining Google, from November 2013 to June 2018, Ms. Maniar worked in various capacities at Genentech, where she led market growth strategies relevant to technology accelerators for therapies and diagnostics. Before Genentech, from February 2012 to July 2013, Ms. Maniar served as Director for the Center of Minimally Invasive Therapeutics at Summa Health. Earlier in her career, Ms. Maniar spent several years working in a research capacity at the Cleveland Clinic and the Austen BioInnovation Institute in Akron where she was primarily focused on medical devices and minimally invasive therapeutics. Ms. Maniar received a B.A. in Economics from the University of California, San Diego.
Non-Employee Director Compensation Arrangements
On January 3, 2023, the Board approved compensation arrangements for non-employee directors, which apply to all directors other than Messrs. Serbousek and Valentine, who are employees. The new annual retainer fee for non-employee director service is $75,000 ($150,000 in the case of Ms. Burzik in her capacity as Lead Independent Director). In addition, the Board has granted, effective as of the close of business on January 5, 2023, each of the new and continuing non-employee directors an award of deferred stock units with a grant date fair market value of $300,000, which will vest on the earlier of June 30, 2024 or the date of Orthofix’s annual meeting of stockholders in 2024. The deferred stock unit awards are being made pursuant to Orthofix’s Amended and Restated 2012 Long-Term Incentive Plan, as amended. Other than the foregoing, there were no arrangements or understandings between Orthofix’s newly appointed non-employee directors and any person pursuant to which they were elected. None of Orthofix’s newly appointed non-employee directors has a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Indemnification Agreements
On January 5, 2023, immediately following the occurrence of the Effective Time, Orthofix entered into indemnification agreements (the “Indemnification Agreements”) with each of Mr. Bostjancic, Dr. Essig, Mr. Henneman, Mr. Keran, Ms. Maniar and Mr. Valentine, in the form of Orthofix’s standard form of indemnification agreement. Subject to certain terms and conditions, the indemnification agreements provide for the indemnification of, and advancement of expenses to, each such person in connection with actions, suits or proceedings arising as a result of such person’s service as an officer or director of Orthofix.
The above description of the Indemnification Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of indemnification agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Inducement Plan
On January 3, 2023, Orthofix established the Orthofix Medical Inc. Inducement Plan for SeaSpine Employees (the “SeaSpine Inducement Plan”), a broad-based incentive plan which allows for the issuance of option awards and stock unit awards to persons employed by SeaSpine immediately prior to the Merger as an inducement material to the individual’s continuing their employment with Orthofix or its current or future subsidiaries upon consummation of the Merger and to promote the success of the business of the Orthofix and its current or future subsidiaries. An aggregate of 1,332,193 shares are reserved for issuance under the SeaSpine Inducement Plan, all of which will be issuable pursuant to stock options and/or restricted stock units that are being granted as of the close of business on January 5, 2023 to persons employed by SeaSpine immediately prior to the Merger. The SeaSpine Inducement Plan was adopted by the Board without stockholder approval pursuant to Rule 5635(c)(4) of the Nasdaq Listing Rules, and all awards made thereunder have been approved by the Compensation and Talent Development Committee.
A copy of the SeaSpine Inducement Plan has been previously filed as Exhibit 4.3 to Orthofix’s Registration Statement on Form S-8 (Registration No. 333-269116) filed with the Securities and Exchange Commission on January 4, 2023. The foregoing description of the SeaSpine Inducement Plan does not purport to be complete and is qualified in its entirety by reference to the full text of the SeaSpine Inducement Plan.
The disclosure in the Introductory Note is incorporated herein by reference.
| Item 8.01 | Other Events. |
On January 4, 2023, Orthofix issued a press release announcing the completion of the Merger. A copy of the press release is furnished herewith as Exhibit 99.1 and is incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
(a) Financial Statements of Business Acquired
The financial information required by this Item 9.01 is not being filed herewith. It will be filed not later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
(b) Pro Forma Financial Information
The financial information required by this Item 9.01 is not being filed herewith. It will be filed not later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
(d) Exhibits
| * | Filed herewith |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Orthofix Medical Inc. | ||||||
| Date: January 5, 2023 | By: | /s/ Kimberley A. Elting | ||||
| Kimberley A. Elting | ||||||
| President of Global Orthopedics | ||||||
Exhibit 10.1
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is dated as of the 5th day of January, 2023, by and between ORTHOFIX MEDICAL INC., a Delaware corporation, (the “Company”) and [Name] (the “Indemnitee”).
WHEREAS, the Company’s Board of Directors (the “Board of Directors”) has determined that having the ability to attract and retain qualified persons to serve as directors and/or officers is in the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be adequate certainty of protection through insurance and indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the Company; and
WHEREAS, Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”), among other things, empowers the Company to indemnify and advance expenses to its officers and directors and to indemnify and advance expenses to persons who serve, at the request of the Company, as directors, officers, employees, or agents of other corporations or enterprises, and expressly provides that the indemnification provided by Section 145 of the DGCL is not exclusive; and
WHEREAS, the Company has adopted provisions in its Bylaws addressing indemnification and advancement of expenses to its officers and directors, and providing that the Company may enter into indemnification agreements that further specify the rights and obligations of the Company and such persons with respect to indemnification, advancement of expenses and related matters; and
WHEREAS, in order to induce and encourage highly experienced and capable persons such as the Indemnitee to serve or continue to serve as directors and officers of the Company and in other capacities with respect to the Company and its affiliates, and to otherwise promote the desirable end that such persons will resist what they consider unjustified lawsuits and claims made against them in connection with the good faith performance of their duties to the Company, with the knowledge that certain costs, judgments, liabilities and expenses incurred by them in their defense of such litigation are to be borne by the Company, the Board of Directors has determined that the following Agreement is reasonable and prudent to promote and ensure the best interests of the Company and its stockholders; and
NOW, THEREFORE, in consideration of the Indemnitee’s service as a director or officer of the Company, or service at the Company’s request as a director, officer, employee, or agent of other enterprises or entities, as of or after the date hereof, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Service by Indemnitee. The Indemnitee will serve and/or continue to serve as a director or officer of the Company faithfully and to the best of the Indemnitee’s ability so long as the Indemnitee is duly elected or appointed and until such time as the Indemnitee is removed, terminated, or tenders a resignation.
Section 2. Indemnification.
(a) General. The Company shall indemnify the Indemnitee (i) as provided in this Agreement and (ii) subject to the provisions of this Agreement, to the full extent permitted by applicable law and in a manner permitted by such law.
(b) Proceedings Other Than Proceedings by or in the Right of the Company. Except as provided in Section 4 hereof, the Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(b) if, by reason of the Indemnitee’s Corporate Status (as hereinafter defined), the Indemnitee is or was, or is or was threatened to be made, a party to or is or was otherwise involved in a Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company to procure a judgment in its favor. The Indemnitee shall be indemnified pursuant to and in accordance with this Section 2(b) against all Losses actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in connection with such a Proceeding or any claim, issue, or matter therein, but only if the Indemnitee acted in good faith and in a manner that the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
(c) Proceedings by or in the Right of the Company. Except as provided in Section 4 hereof, the Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(c) if, by reason of the Indemnitee’s Corporate Status, the Indemnitee is or was, or is or was threatened to be made, a party to or is or was otherwise involved in a Proceeding brought by or in the right of the Company to procure a judgment in its favor. The Indemnitee shall be indemnified pursuant to and in accordance with this Section 2(c) against all Expenses actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in connection with such a Proceeding or any claim, issue, or matter therein, but only if the Indemnitee acted in good faith and in a manner that the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; provided, however, that no indemnification for such Expenses shall be made in respect of any claim, issue, or matter in such Proceeding as to which the Indemnitee shall have been adjudged liable to the Company unless (and only to the extent that) the Court of Chancery of the State of Delaware or the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or such other court shall deem proper. Anything in this Agreement to the contrary notwithstanding, if the Indemnitee, by reason of the Indemnitee’s Corporate Status, is or was, or is or was threatened to be made, a party to any Proceeding by or in the right of the Company to procure a judgment in its favor, then the Company shall not indemnify the Indemnitee for any judgment, fines, or amounts paid in settlement to the Company in connection with such Proceeding.
2
(d) Indemnification for Expenses if Indemnitee is Wholly or Partly Successful. Anything in this Agreement to the contrary notwithstanding, to the extent that the Indemnitee, by reason of the Indemnitee’s Corporate Status, is or was, or is or was threatened to be made, a party to any Proceeding and is successful, on the merits or otherwise, in defending such Proceeding (including dismissal without prejudice), the Indemnitee shall be indemnified to the maximum extent permitted by law against all Expenses actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in connection with the defense of such Proceeding. If the Indemnitee is not wholly successful in defending any such Proceeding but is successful, on the merits or otherwise, in defending one or more but less than all claims, issues, or matters in such Proceeding (including dismissal without prejudice of certain claims), the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in defending each such successfully resolved claim, issue, or matter. To the extent the Indemnitee has been successful, on the merits or otherwise, in defending any Proceeding, or in defending any claim, issue, or matter therein, the Indemnitee shall be entitled to indemnification as provided in this Section 2(d) regardless of whether the Indemnitee met the standards of conduct set forth in Sections 2(b) and 2(c) hereof.
(e) Indemnification for Expenses as a Witness. Anything in this Agreement to the contrary notwithstanding, to the fullest extent permitted by applicable law, to the extent that the Indemnitee, by reason of the Indemnitee’s Corporate Status, is or was, or is or was threatened to be made, a witness in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in connection therewith. To the extent permitted by applicable law, the Indemnitee shall be entitled to indemnification for Expenses incurred in connection with being or threatened to be made a witness, as provided in this Section 2(e), regardless of whether the Indemnitee met the standards of conduct set forth in Sections 2(b) and 2(c) hereof.
(f) Partial Indemnification. If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Losses actually and reasonably incurred by the Indemnitee in a Proceeding, but not for the total amount thereof, the Company shall indemnify the Indemnitee for the portion of such Losses to which the Indemnitee is entitled.
Section 3. Advancement of Expenses. Anything in this Agreement to the contrary notwithstanding, but subject to Section 4 hereof, if, by reason of the Indemnitee’s Corporate Status, the Indemnitee is or was, or is or was threatened to be made, a party to, or is or was otherwise involved in, or is or was, or is or was threatened to be made, a witness to any Proceeding (including, without limitation, a Proceeding brought by or in the right of the Company to procure a judgment
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in its favor), then the Company shall advance all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection with any such Proceeding in advance of the final disposition of such Proceeding within ten (10) calendar days after the receipt by the Company of a written request for such advance or advances from time to time. Such written request shall include or be accompanied by a statement or statements reasonably evidencing the Expenses incurred by or on behalf of the Indemnitee and for which advancement is requested, and shall include or be preceded or accompanied by an undertaking by or on behalf of the Indemnitee to repay any Expenses advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that the Indemnitee is not entitled to be indemnified against such Expenses under this Agreement or otherwise. Such undertaking shall be sufficient for purposes of this Section 3 if it is in substantially the form attached hereto as Exhibit A. Any advances and undertakings to repay pursuant to this Section 3 shall be unsecured and interest free. The Indemnitee shall be entitled to advancement of Expenses as provided in this Section 3 regardless of any determination by or on behalf of the Company that the Indemnitee has not met the standards of conduct set forth in Sections 2(b) and 2(c) hereof.
Section 4. Proceedings Against the Company; Certain Securities Laws Claims.
(a) Anything in Section 2 or Section 3 hereof to the contrary notwithstanding, except as provided in Section 7(d) hereof, with respect to a Proceeding initiated against the Company by the Indemnitee (whether initiated by the Indemnitee in or by reason of such person’s capacity as an officer or director of the Company or in or by reason of any other capacity, including, without limitation, as a director, officer, employee, or agent of Another Enterprise), the Company shall not be required to indemnify or to advance Expenses to the Indemnitee in connection with prosecuting such Proceeding (or any part thereof) or in defending any counterclaim, cross-claim, affirmative defense, or like claim of the Company in such Proceeding (or part thereof) unless such Proceeding was authorized by the Board of Directors. For purposes of this Section 4, a compulsory counterclaim by the Indemnitee against the Company in connection with a Proceeding initiated against the Indemnitee by the Company shall not be considered a Proceeding (or part thereof) initiated against the Company by the Indemnitee, and the Indemnitee shall have all rights of indemnification and advancement with respect to any such compulsory counterclaim in accordance with and subject to the terms of this Agreement.
(b) Anything in Section 2 (other than Section 2(d)) or Section 3 hereof to the contrary notwithstanding, except as provided in Section 2(d) hereof with respect to indemnification of Expenses in connection with whole or partial success on the merits or otherwise in defending any Proceeding, the Company shall not be required to indemnify the Indemnitee in connection with any claim made against Indemnitee for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934 or similar provisions of state statutory law or common law, or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee
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from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934 (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act).
Section 5. Procedure for Determination of Entitlement to Indemnification; Independent Counsel.
(a) To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company (following the final disposition of the applicable Proceeding) a written request for indemnification, including therein or therewith, except to the extent previously provided to the Company in connection with a request or requests for advancement pursuant to Section 3 hereof, a statement or statements reasonably evidencing all Losses incurred or paid by or on behalf of the Indemnitee and for which indemnification is requested. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that the Indemnitee has requested indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant to the first sentence of Section 5(a) hereof, if required by applicable law and to the extent not otherwise provided pursuant to the terms of this Agreement, a determination with respect to the Indemnitee’s entitlement to indemnification shall be made in the specific case as follows: (i) if a Change in Control (as hereinafter defined) shall have occurred and if so requested in writing by the Indemnitee, by Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors; or (ii) if a Change in Control shall not have occurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in subpart (i) of this Section 5(b)), (A) by a majority vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum of the Board of Directors, or (B) by a committee of Disinterested Directors designated by majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board of Directors, or (D) by the Company’s stockholders in accordance with applicable law. Notice in writing of any determination as to the Indemnitee’s entitlement to indemnification shall be delivered to the Indemnitee promptly after such determination is made, and if such determination of entitlement to indemnification has been made by Independent Counsel in a written opinion to the Board of Directors, then such notice shall be accompanied by a copy of such written opinion. If it is determined that the Indemnitee is entitled to indemnification, then payment to the Indemnitee of all amounts to which the Indemnitee is determined to be entitled shall be made within ten (10) calendar days after such determination. If it is determined that the Indemnitee is not entitled to indemnification, then the written notice to the Indemnitee (or, if such determination has been made by Independent Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall disclose the basis upon which
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such determination is based. The Indemnitee shall cooperate with the person, persons, or entity making the determination with respect to the Indemnitee’s entitlement to indemnification, including providing to such person, persons, or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to the Indemnitee and reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof, the Independent Counsel shall be selected as provided in this Section 5(c). If a Change in Control shall not have occurred (or if a Change in Control shall have occurred but the Indemnitee shall not have requested that indemnification be determined by Independent Counsel as provided in subpart (i) of Section 5(b)), then the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to the Indemnitee advising the Indemnitee of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred and the Indemnitee shall have requested that indemnification be determined by Independent Counsel, then the Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and the Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, the Indemnitee or the Company, as the case may be, may, within 10 calendar days after such written notice of selection has been given, deliver to the Company or to the Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the law firm or person so selected does not meet the requirements of “Independent Counsel” as defined in Section 23 of this Agreement, and the objection shall set forth the basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the law firm or person so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Court of Chancery of the State of Delaware or another court of competent jurisdiction in the State of Delaware has determined that such objection is without merit. If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof and, following the expiration of twenty (20) calendar days after submission by the Indemnitee of a written request for indemnification pursuant to Section 5(a) hereof, Independent Counsel shall not have been selected, or an objection thereto has been made and not withdrawn, then either the Company or the Indemnitee may petition the Court of Chancery of the State of Delaware or other court of competent jurisdiction in the State of Delaware for resolution of any objection that shall have been made by the Company or the Indemnitee to the other’s selection of Independent Counsel and/or for appointment as Independent Counsel of a law firm or person selected by such court (or selected by such person as the court shall designate), and the law firm or person with respect to whom all objections are so resolved or the law firm or person so appointed shall act as Independent Counsel under Section 5(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 7(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in
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such capacity (subject to the applicable standards of professional conduct then prevailing). If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof, then the Company agrees to pay the reasonable fees and expenses of such Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities, and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
Section 6. Burden of Proof; Defenses; and Presumptions.
(a) In any judicial proceeding or arbitration pursuant to Section 7 hereof brought by the Indemnitee to enforce rights to indemnification or to an advancement of expenses hereunder, or in any action, suit, or proceeding brought by the Company to recover an advancement of expenses (whether pursuant to the terms of an undertaking or otherwise), the burden shall be on the Company to prove that the Indemnitee is not entitled to be indemnified, or to such an advancement of expenses, as the case may be.
(b) It shall be a defense in any judicial proceeding or arbitration pursuant to Section 7 hereof to enforce rights to indemnification under Section 2(b) or Section 2(c) hereof (but not in any judicial proceeding or arbitration pursuant to Section 7 hereof to enforce a right to an advancement of expenses under Section 3 hereof) that the Indemnitee has not met the standards of conduct set forth in Section 2(b) or Section 2(c), as the case may be, but the burden of proving such defense shall be on the Company. With respect to any judicial proceeding or arbitration pursuant to Section 7 hereof brought by the Indemnitee to enforce a right to indemnification hereunder, or any action, suit, or proceeding brought by the Company to recover an advancement of expenses (whether pursuant to the terms of an undertaking or otherwise), neither (i) the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of such action, suit, proceeding, or arbitration that indemnification is proper in the circumstances because the Indemnitee has met the applicable standards of conduct, nor (ii) an actual determination by the Company (including by its directors or Independent Counsel) that the Indemnitee has not met such applicable standards of conduct, shall create a presumption that the Indemnitee has not met the applicable standards of conduct or, in the case of a judicial proceeding or arbitration pursuant to Section 7 hereof brought by the Indemnitee seeking to enforce a right to indemnification, be a defense to such proceeding or arbitration.
(c) The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendre or its equivalent, shall not, of itself, adversely affect the right of the Indemnitee to indemnification hereunder or create a presumption that the Indemnitee did not act in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
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(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company or Other Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Company or Other Enterprise in the course of their duties, or on the advice of legal counsel for the Company or Other Enterprise or on information or records given or reports made to the Company or Other Enterprise by an independent certified public accountant or by an appraiser or other expert selected by the Company or Other Enterprise. The provisions of this Section 6(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any other director, officer, agent, or employee of the Company or of Another Enterprise shall not be imputed to the Indemnitee for purposes of determining the Indemnitee’s right to indemnification under this Agreement.
Section 7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 5 of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 3 of this Agreement, (iii) except when the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof, no determination of entitlement to indemnification shall have been made pursuant to Section 5(b) of this Agreement within sixty (60) calendar days after receipt by the Company of the Indemnitee’s written request for indemnification, (iv) under circumstances in which the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof, no determination of entitlement to indemnification shall have been made pursuant to Section 5(b) hereof within eighty (80) calendar days after receipt by the Company of the Indemnitee’s written request for indemnification (unless an objection to the selection of such Independent Counsel has been made and substantiated and not withdrawn, in which case the applicable time period shall be seventy (70) calendar days after the Court of Chancery of the State of Delaware or another court of competent jurisdiction in the State of Delaware (or such person appointed by such court to make such determination) has determined or appointed the person to act as Independent Counsel pursuant to Section 5(b) hereof), (v) payment of indemnification is not made pursuant to Section 2(d) or Section 2(e) of this Agreement within twenty (20) calendar days after receipt by the Company of a written request therefor, or (vi) payment of indemnification pursuant to Section 2(b) or Section 2(c) of this Agreement is not made within twenty (20) calendar days after a determination has been made pursuant to Section 5(b) that the Indemnitee is entitled to indemnification, then the Indemnitee shall be entitled to seek an adjudication by the Court of Chancery of the State of Delaware of the Indemnitee’s entitlement to such indemnification or advancement of Expenses. Alternatively, if the foregoing conditions have been satisfied, the Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
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Arbitration Association. The Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 calendar days following the date on which the Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by the Indemnitee to enforce his or her rights to indemnification under Section 2(d) of this Agreement.
(b) In the event that a determination shall have been made pursuant to Section 5(b) of this Agreement that the Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and the Indemnitee shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to Section 5(b) of this Agreement that the Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 7, absent (i) a misstatement or misrepresentation by the Indemnitee (or anyone acting on the Indemnitee’s behalf) of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement (or statements of persons acting on behalf of the Indemnitee) not materially misleading, in connection with the request for indemnification or in connection with the provision of information or documentation pursuant to the last sentence of Section 5(b), or (ii) a prohibition of such indemnification under applicable law.
(d) In the event that the Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of or an award in arbitration to enforce the Indemnitee’s rights under, or to recover damages for breach of, this Agreement, then the Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by or on behalf of such Indemnitee in such judicial adjudication or arbitration, but only if (and only to the extent) the Indemnitee prevails therein. If it shall be determined in said judicial adjudication or arbitration that the Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, the expenses incurred by the Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.
Section 8. Non-Exclusivity. Except to the extent expressly provided herein, and only to such extent, the rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may at any time be entitled under applicable law, the Company’s Certificate of Incorporation, the Company’s Bylaws, any agreement, a vote of stockholders, a resolution of directors, or otherwise, both as to action in or by reason of the Indemnitee’s Corporate Status and as to action in or by reason of any other capacity of the Indemnitee while serving as a director or officer of the Company. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. In the
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event of any change after the date of this Agreement in any applicable law, statute, or rule that expands the power of a Delaware corporation to indemnify a member of its board of directors or an officer, employee, agent, or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greatest benefits afforded by such change. Anything in this Section 8 to the contrary notwithstanding, to the extent the time periods specified in Section 3 and Section 7(a) hereof with respect to the time at which the Indemnitee shall be entitled to seek an adjudication or an award in arbitration as to the Indemnitee’s entitlement to indemnification or advancement differ from similar time periods specified in the Company’s Certificate of Incorporation or Bylaws, the time periods set forth in Section 3 and Section 7(a) hereof shall control and be binding on the Indemnitee and the Company and shall be deemed a waiver of any contrary right specified in the Company’s Certificate of Incorporation or Bylaws. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
Section 9. Insurance; Subrogation; Other Sources of Payment.
(a) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Company or Another Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Company or Another Enterprise, the provision of directors’ and officers’ liability insurance as provided in this Section 9(a) shall be in addition to the Company’s obligations under Sections 2 and 3 hereof and shall not be deemed to be in satisfaction of those obligations.
(b) In the event of any payment to or on behalf of the Indemnitee under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(c) Except to the extent required by applicable law, the Company shall not be liable under this Agreement to make any payment to Indemnitee with respect to amounts otherwise indemnifiable hereunder (or for which advancement is otherwise provided hereunder) if and to the extent that the Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement, or otherwise. Nothing hereunder is intended to affect any right of contribution of or against the Company in the event the Company and any other person or persons have co-equal obligations to indemnify or advance expenses to Indemnitee.
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(d) The Company’s obligation to indemnify or advance Expenses hereunder to the Indemnitee, in connection with or by reason of Indemnitee’s service at the request of the Company as a director, officer, employee, agent, or fiduciary of Another Enterprise, shall be reduced by any amount that the Indemnitee has actually received as indemnification or advancement of Expenses from such Other Enterprise with respect to the Proceeding for which indemnification or advancement of Expenses is sought.
Section 10. Contribution. To the fullest extent permitted by applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, for any and all Losses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company, on the one hand, and Indemnitee, on the other hand, as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents), on the one hand, and Indemnitee, on the other hand, in connection with such event(s) and/or transaction(s), including any relevant equitable considerations. To the extent the Proceeding or any claim or issue in the Proceeding involves allegations concerning the misstatement or omission of material facts or other disclosure-based claims, the relative fault of the Company and Indemnitee shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Indemnitee and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.
Section 11. Settlements. Notwithstanding anything in this Agreement or the Company’s Certificate of Incorporation or the Bylaws to the contrary, the Company shall have no obligation to indemnify the Indemnitee under this Agreement for any amounts paid by or on behalf of the Indemnitee in settlement of any Proceeding, unless the Company has consented in writing to such settlement, which consent shall not be unreasonably withheld. The Company shall not settle any Proceeding or claim therein in any manner that would impose any fine, penalty, limitation or material obligation on, or require payment from, the Indemnitee without the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld.
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Section 12. Survival of Rights; Binding Effect; Successors and Assigns.
(a) The indemnification and advancement of Expenses and other rights provided by, or granted pursuant to, this Agreement shall continue during the period that the Indemnitee is a director or officer of the Company and shall continue through and after the Termination Date so long as Indemnitee shall be subject to any possible Proceeding (including any appeal thereto), by reason of Indemnitee’s Corporate Status, with respect to claims arising from any action taken or omitted (or that are alleged to have been taken or omitted) by the Indemnitee, or from any facts or events that occurred (or that are alleged to have occurred), on or before the Termination Date, and shall further continue for such period of time following the conclusion of any such Proceeding as may be reasonably necessary for Indemnitee to enforce rights and remedies pursuant to this Agreement as provided in Section 7 of this Agreement.
(b) This Agreement shall be binding upon the Indemnitee and upon the Company and its successors and assigns, and shall inure to the benefit of the Indemnitee, the Indemnitee’s heirs, personal representatives, executors, administrators, and assigns and to the benefit of the Company and its successors and assigns.
(c) The Company further agrees that in the event the Company or any of its successors or assigns (i) consolidates with or merges into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any corporation or entity, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Company as a result of such transaction assume the obligations of the Company set forth in this Agreement, including, without limitations, the requirements with respect to directors’ and officers’ liability insurance set forth in Section 9.
Section 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable for any reason whatsoever: (a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, each such portion of any Section of this Agreement containing any such provision held to be invalid, illegal, or unenforceable, that is not itself held to be invalid, illegal, or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each such portion of any Section of this Agreement containing any such provision held to be invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held to be invalid, illegal, or unenforceable.
Section 14. Acknowledgement. The Company expressly acknowledges, confirms, and agrees that it has entered into this Agreement and has assumed the obligations imposed on the Company hereby in order to induce the Indemnitee to serve or continue to serve as a director or officer of the Company, and the Company acknowledges that the Indemnitee is relying upon this Agreement in serving or continuing to serve in such capacity. In addition, both the Company and Indemnitee acknowledge that in certain instances, federal law or applicable public policy may
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prohibit the Company from indemnifying its directors, officers, employees, agents or fiduciaries under this Agreement or otherwise. Indemnitee understands and acknowledges that the Company may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s rights under public policy to indemnify Indemnitee.
Section 15. Notice by Indemnitee. The Indemnitee agrees to notify the Company promptly and in writing upon being served with any summons, citation, subpoena, complaint, petition, indictment, information, or other document relating to the commencement or threatened commencement of any Proceeding or matter that may be subject to indemnification or advancement of Expenses covered hereunder. The failure of the Indemnitee to so notify the Company shall not relieve the Company of any obligation that it may have to the Indemnitee under this Agreement or otherwise, except to the extent the Company is materially prejudiced by such failure.
Section 16. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) if delivered by hand to the party to whom said notice or other communication shall have been directed, on the date so delivered, or (ii) if mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed. All such notices, requests, demands, and other communications shall be delivered to the Indemnitee or to the Company, as the case may be, at the following addresses:
| (a) | If to the Indemnitee, to the address set forth on the signature page hereto |
| (b) | If to the Company, to: |
Orthofix Medical Inc.
3451 Plano Parkway, Lewisville, Texas 75056
Attn: Patrick Keran, Chief Legal Officer
or to such other address as may have been furnished to the Indemnitee by the Company or to the Company by the Indemnitee, as the case may be, by like notice.
Section 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.
Section 18. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
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Section 19. Entire Agreement; Prior Indemnification Agreements. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written, and implied, between the parties hereto with respect to the subject matter hereof. This Agreement shall supersede and replace any prior indemnification agreements entered into by and between the Company and the Indemnitee and any such prior agreements shall be deemed automatically terminated upon execution and delivery of this Agreement by the Company and the Indemnitee.
Section 20. Modification and Waiver.
(a) No amendment, modification, supplementation, or repeal of this Agreement or any provision hereof shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
(b) No amendment, modification, supplementation, or repeal of this Agreement or of any provision hereof shall limit or restrict any rights of the Indemnitee under this Agreement in respect of any action taken or omitted by the Indemnitee in or by reason of the Indemnitee’s Corporate Status prior to such amendment, modification, supplementation, or repeal.
Section 21. Governing Law; Submission to Jurisdiction; Service of Process.
(a) This Agreement and the legal relations among the parties with respect to the matters addressed hereby shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.
(b) Except with respect to any arbitration commenced by the Indemnitee pursuant to Section 7(a) of this Agreement and except to the extent permitted by Section 2(c) hereof with respect to a determination by a court in which an underlying Proceeding was brought that the Indemnitee is entitled to indemnification of Expenses notwithstanding an adjudication of liability to the Company, the Company and the Indemnitee each hereby irrevocably and unconditionally (i) agrees and consents to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any action, suit, or proceeding that arises out of or relates to this Agreement and agrees that any such action instituted under this Agreement shall be brought only in the Court of Chancery of the State of Delaware (or in any other state court of the State of Delaware if the Court of Chancery does not have subject matter jurisdiction over such action), and not in any other state or federal court in the United States of America or any court or tribunal in any other country; (ii) consents to submit to the exclusive jurisdiction of the courts of the State of Delaware for purposes of any action or proceeding arising out of or in connection with this Agreement; (iii) waives any objection to the laying of venue of any such action or proceeding in the courts of the State of Delaware; and (iv) waives, and agrees not to plead or to make, any claim that any such action or proceeding brought in the courts of the State of Delaware has been brought in an improper or otherwise inconvenient forum.
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(c) Each of the Company and the Indemnitee hereby consents to service of any summons and complaint and any other process that may be served in any action, suit, or proceeding arising out of or relating to this Agreement in any court of the State of Delaware by mailing by certified or registered mail, with postage prepaid, copies of such process to such party at its address for receiving notice pursuant to Section 16 hereof. Nothing herein shall preclude service of process by any other means permitted by applicable law.
Section 22. Nature of Agreement. This Agreement shall not be deemed an employment contract between the Company and the Indemnitee, and, if Indemnitee is an officer or employee of the Company, Indemnitee specifically acknowledges that Indemnitee may be discharged as an officer or employee of the Company at any time for any reason, with or without cause, and with or without severance compensation, except as may be otherwise provided in a separate written contract between the Company and the Indemnitee.
Section 23. Definitions. For purposes of this Agreement:
(a) “Another Enterprise” and “Other Enterprise” refer to a corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or any other form of enterprise, other than the Company.
(b) “Change in Control” means, and shall be deemed to have occurred if, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total voting power represented by the Company’s then outstanding voting stock, (ii) during any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that would result in the voting stock of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting stock of the surviving entity) at least fifty percent (50%) of the total voting power represented by the voting
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stock of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company (in one transaction or a series of related transactions) of all or substantially all of the Company’s assets.
(c) “Corporate Status” describes (1) the Indemnitee’s status as a present or former director or officer of the Company, (2) the Indemnitee’s present or former status, at any time while serving as a director or officer of the Company, as a director, officer, employee, agent, or fiduciary of Another Enterprise to the extent the Indemnitee is or was serving in such capacity with respect to such Other Enterprise at the request of Company, and (3) the Indemnitee’s present or former status as a director, officer, employee, agent, or fiduciary of Another Enterprise to the extent the Indemnitee served in such capacity with respect to such Other Enterprise while serving as a director or officer of the Company, continued serving in such capacity with respect to such Other Enterprise after ceasing to be a director or officer of the Company, and is or was serving in such capacity with respect to such Other Enterprise at the request of Company.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by the Indemnitee.
(e) “Expenses” includes, without limitation, reasonable attorneys’ fees; retainers; disbursements of counsel; court costs; filing fees; transcript costs; fees and expenses of experts; fees and expenses of witnesses; fees and expenses of accountants and other consultants (excluding public relations consultants unless approved in advance by the Company); travel expenses; duplicating and imaging costs; printing and binding costs; telephone charges; facsimile transmission charges; computer legal research costs; postage; delivery service fees; fees and expenses of third-party vendors; the premium, security for, and other costs associated with any bond (including supersedeas or appeal bonds, injunction bonds, cost bonds, appraisal bonds or their equivalents), in each case incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding (including, without limitation, any judicial or arbitration Proceeding brought to enforce the Indemnitee’s rights under, or to recover damages for breach of, this Agreement), as well as all other “expenses” within the meaning of that term as used in Section 145 of the DGCL and all other disbursements or expenses of types customarily and reasonably incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, actions, suits, or proceedings similar to or of the same type as the Proceeding with respect to which such disbursements or expenses were incurred; but, notwithstanding anything in the foregoing to the contrary, “Expenses” shall not include amounts of judgments, penalties, or fines actually levied against the Indemnitee in connection with any Proceeding.
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(f) “Independent Counsel” means a law firm, or a person admitted to practice law in any State of the United States, that is experienced in matters of corporation law and neither presently is, nor in the past three (3) years has been, retained to represent: (i) the Company or the Indemnitee in any matter material to either such party (other than with respect to serving as Independent Counsel (or similar independent legal counsel position) as to matters concerning the rights of Indemnitee under this Agreement, the rights of other indemnitees under similar indemnification agreements, or the rights of Indemnitee or other indemnitees to indemnification under the Company’s Certificate of Incorporation or Bylaws), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any law firm or person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s rights under this Agreement. For the avoidance of doubt, the term “Independent Counsel” shall not include any law firm or person who represented or advised any entity or person in connection with a Change in Control of the Company.
(g) “Losses” means all Expenses, judgments, penalties, fines, liabilities, and amounts paid in settlement in connection with a Proceeding.
(h) “Proceeding” means any threatened, pending, or completed action, suit, arbitration, alternative dispute resolution mechanism, investigation (including any internal investigation), inquiry, administrative hearing, or any other threatened, pending, or completed proceeding, whether brought by or in the right of the Company or otherwise, and whether civil, criminal, administrative, or investigative.
(i) “Termination Date” shall mean the date on which the Indemnitee is no longer a director or officer of the Company; provided, however, that if (1) the Indemnitee continues to serve as a director, officer, employee, agent, or fiduciary of Another Enterprise after the date on which the Indemnitee is no longer a director or officer of the Company, (2) the Indemnitee is serving in such capacity with respect to such Other Enterprise at the request of the Company, and (3) the Indemnitee served in such capacity with respect to such Other Enterprise while serving as a director or officer of the Company, then “Termination Date” shall mean such later date which the Indemnitee is no longer serving in such capacity with respect to such Other Enterprise.
(j) References herein to “fines” shall include any excise tax assessed with respect to any employee benefit plan.
(k) References herein to a director of Another Enterprise or a director of an Other Enterprise shall include, in the case of any entity that is not managed by a board of directors, such other position, such as manager or trustee or member of the governing body of such entity, that entails responsibility for the management and direction of such entity’s affairs, including, without limitation, the general partner of any partnership (general or limited) and the manager or managing member of any limited liability company.
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(l) (i) References herein to serving at the request of the Company as a director, officer, employee, agent, or fiduciary of Another Enterprise shall include any service as a director, officer, employee, or agent of the Company that imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan of the Company or any of its affiliates, other than solely as a participant or beneficiary of such a plan; and (ii) if the Indemnitee has acted in good faith and in a manner such the Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, the Indemnitee shall be deemed to have acted in a manner not opposed to the best interests of the Company for purposes of this Agreement.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the Company and the Indemnitee have executed this Agreement, on the day and year first above written.
| ORTHOFIX MEDICAL INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| INDEMNITEE | ||
| By: | ||
| Name: | ||
| Address: | ||
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Exhibit A
UNDERTAKING
I _____________________________________, agree to reimburse the Company for all expenses paid to me or on my behalf by the Company in connection with my involvement in [name or description of proceeding or proceedings], in the event, and to the extent, that it shall ultimately be determined that I am not entitled to be indemnified by the Company for such expenses.
| Signature | ||
| Typed Name |
___________________) ss:
Before me ___________________ , on this day personally appeared ___________________, known to me to be the person whose name is subscribed to the foregoing instrument, and who, after being duly sworn, stated that the contents of said instrument is to the best of his/her knowledge and belief true and correct and who acknowledged that he/she executed the same for the purpose and consideration therein expressed.
GIVEN under my hand and official seal at _____, this _____ day of __________, 20__.
| Notary Public |
My commission expires:
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Exhibit 10.2
December 30, 2022
Keith Valentine
c/o SeaSpine Holdings Corporation
5770 Armada Drive
Carlsbad, CA 92008
Dear Keith,
Per our discussions, it gives me great pleasure to present this offer to join Orthofix Medical Inc. (“Parent” and, together with its direct and indirect current and future subsidiaries, and giving effect to any change of name that may occur in the future, the “Company”). This offer is made in connection with the pending merger of your current employer, SeaSpine Holdings Corporation or a direct or indirect subsidiary thereof (“SeaSpine”), into a wholly owned subsidiary of the Company (the “Merger”), and is made contingent upon and subject to the closing of the Merger (the “Closing”) pursuant to the terms of the merger agreement between the Company, SeaSpine and the aforementioned Company subsidiary (the “Merger Agreement”).
Starting Date: Your starting date as Parent’s President and Chief Executive Officer (the “Position”) will be on the date that the Closing occurs (the “Closing Date”). We currently anticipate that the Closing will occur in January 2023, subject to, among other things, the stockholders of SeaSpine adopting the Merger Agreement and the stockholders of the Company approving the issuance of shares of common stock of Parent (“Parent Common Stock”) that will occur in the Merger, in each case, at the respective special meeting of stockholders currently scheduled for January 4, 2023.
Compensation: Your compensation will be determined by the Compensation & Talent Development Committee (the “Compensation Committee”) of the Company’s Board of Directors (the “Board”). The Compensation Committee has approved the following compensation arrangements for you, effective as of the Closing:
Base Salary: An initial annual base salary of $825,000, to be paid in accordance with the Company’s regular payroll practices and less applicable deductions and tax withholdings.
Cash Incentive Bonus: You will be eligible to receive annual bonus compensation under and subject to the terms and conditions of the Company’s annual cash incentive program based on the achievement of goals established by the Compensation Committee and/or the Board from time-to-time. For 2023, your target bonus opportunity under the program will be equal to 110% of your annual base salary amount.
Equity Awards: You will be eligible to receive stock-based compensation, whether restricted stock units, performance-based stock units, stock options or otherwise, under the Company’s 2012 Long Term Incentive Plan, as amended, or other stock-based compensation plans that the Company may establish from time-to-time. In addition, to induce your acceptance of employment with the Company effective upon the Closing, the Compensation Committee has approved grants to you, effective upon and as of the close of business on the Closing Date, of (i) restricted stock units that settle in shares of Parent Common Stock (the “Sign-On RSUs”) and (ii) stock options to purchase shares of Parent Common Stock (the “Sign-On Common Stock,” and collectively with the Sign-On RSUs, the “Sign-On Award”). The Sign-On RSUs will vest in annual 33 1/3% installments over three years, and 1/3 of the Sign-On Stock Options will vest on the first anniversary the Closing Date, and remaining 2/3 of the Sign-On Stock Options will vest in eight equal quarterly installments thereafter, subject to your continued employment on each applicable vesting date. Notwithstanding anything in any agreement with or plan of SeaSpine to the contrary (including the Existing Employment Agreement, as defined below), the Sign-On Award will not be subject to any automatic accelerated vesting without continued service through an applicable vesting date except in cases of (i) involuntary termination following a future “Change in Control” (as defined in the Company’s most recently publicly filed form of Change in Control and Severance Agreement (the “CIC and Severance Agreement”)) that occurs with respect to the Company after the Closing Date, (ii) death, or (iii) disability. The grant date value of the Sign-On RSUs will be $3,000,000 and the grant date value of the Sign-On Stock Options will be $3,000,000 (in each case, subject to rounding to the nearest whole share), for a total grant value of $6,000,000. The Sign-On Award and future stock-based compensation grants made to you, will be subject to the terms and conditions of applicable plan documents and award agreements, which will be separately made available to you.
Change in Control and Severance Agreement: As of the Closing Date, your employment with the Company will be governed by your existing employment agreement with SeaSpine, dated April 28, 2015, as further amended on April 30, 2019 (the “Existing Employment Agreement”). In consideration for the offer being made by the Company pursuant to this letter and your acceptance of such offer, the Company and you agree that (i) (A) your acceptance and performance of the Position (including the existence of the Company’s headquarters being in Lewisville, Texas, and your periodic need to visit such headquarters), (B) any titles, authorities and responsibilities with the subsidiaries of Parent while in the Position that may be different than those contemplated by Sections 2 and 4(a) of the Existing Employment Agreement, and (C) any future reduction of your equity-based compensation solely as a result of across-the-board reductions to equity-based compensation levels that apply the applicable reduction percentage substantially similarly to all executives, shall in the case of each of clauses (A), (B) and (C) not provide you with “Good Reason” under the Existing Employment Agreement, (ii) the Merger shall constitute a “Change in Control” under the Existing Employment Agreement, and following the Merger you will maintain the rights related thereto as set forth in the Existing Employment Agreement, except that the provisions of and rights contained in Sections 12(c)(iii) and 12(d) shall not apply with respect to the Sign-On Award or any other Company equity-based compensation granted to you by the Company after the Closing Date unless a future “Change in Control” (as defined
in the CIC and Severance Agreement) occurs with respect to the Company after the Closing Date. Notwithstanding the foregoing, it is the intent of the Company to offer you the ability to enter into, within sixty (60) days of the Closing Date, a new agreement that is substantially equivalent to the CIC and Severance Agreement, which if entered into, would supersede your Existing Employment Agreement (though the new CIC and Severance Agreement will memorialize that you will remain protected under the new agreement during the two-year period following the Merger in the same manner that you are under the Existing Employment Agreement, i.e., you will be in a “CIC Period” under the new CIC and Severance Agreement for two years). The final terms of such CIC and Severance Agreement will be subject to review and approval by the Compensation Committee, as constituted following the Closing. Notwithstanding the foregoing, you understand and acknowledge that, if you become employed by the Company, you will be an “at-will” employee at all times during your employment.
D&O Indemnification Agreement: Under separate cover, you will receive a D&O Indemnification Agreement.
We very much look forward to working with you following consummation of the Merger.
Sincerely,
/s/ Michael E. Paolucci
Michael E. Paolucci
Chair of the Compensation Committee
| ACKNOWLEDGED, ACCEPTED, AND AGREED: |
| /s/ Keith Valentine |
| Keith Valentine |
Exhibit 10.3
December 30, 2022
John Bostjancic
c/o SeaSpine Holdings Corporation
5770 Armada Drive
Carlsbad, CA 92008
Dear John,
Per our discussions, it gives me great pleasure to present this offer to join Orthofix Medical Inc. (“Parent” and, together with its direct and indirect current and future subsidiaries, and giving effect to any change of name that may occur in the future, the “Company”). This offer is made in connection with the pending merger of your current employer, SeaSpine Holdings Corporation or a direct or indirect subsidiary thereof (“SeaSpine”), into a wholly owned subsidiary of the Company (the “Merger”), and is made contingent upon and subject to the closing of the Merger (the “Closing”) pursuant to the terms of the merger agreement between the Company, SeaSpine and the aforementioned Company subsidiary (the “Merger Agreement”).
Starting Date: Your starting date as Parent’s Chief Financial Officer (the “Position”) will be on the date that the Closing occurs (the “Closing Date”). We currently anticipate that the Closing will occur in January 2023, subject to, among other things, the stockholders of SeaSpine adopting the Merger Agreement and the stockholders of the Company approving the issuance of shares of common stock of Parent (“Parent Common Stock”) that will occur in the Merger, in each case, at the respective special meeting of stockholders currently scheduled for January 4, 2023.
Compensation: Your compensation will be determined by the Compensation & Talent Development Committee (the “Compensation Committee”) of the Company’s Board of Directors (the “Board”). The Compensation Committee has approved the following compensation arrangements for you, effective as of the Closing:
Base Salary: An initial annual base salary of $500,000 to be paid in accordance with the Company’s regular payroll practices and less applicable deductions and tax withholdings.
Cash Incentive Bonus: You will be eligible to receive annual bonus compensation under and subject to the terms and conditions of the Company’s annual cash incentive program based on the achievement of goals established by the Compensation Committee and/or the Board from time-to-time. For 2023, your target bonus opportunity under the program will be equal to 70% of your annual base salary amount.
Equity Awards: You will be eligible to receive stock-based compensation, whether restricted stock units, performance-based stock units, stock options or otherwise, under the Company’s 2012 Long Term Incentive Plan, as amended, or other stock-based compensation plans that the Company may establish from time-to-time. In addition, to induce your acceptance of employment with the Company effective upon the Closing, the Compensation Committee has approved grants to you, effective upon and as of the close of business on the Closing Date, of (i) restricted stock units that settle in shares of Parent Common Stock (the “Sign-On RSUs”) and (ii) stock options to purchase shares of Parent Common Stock (the “Sign-On Common Stock,” and collectively with the Sign-On RSUs, the “Sign-On Award”). The Sign-On RSUs will vest in annual 33 1/3% installments over three years, and 1/3 of the Sign-On Stock Options will vest on the first anniversary the Closing Date, and remaining 2/3 of the Sign-On Stock Options will vest in eight equal quarterly installments thereafter, subject to your continued employment on each applicable vesting date. Notwithstanding anything in any agreement with or plan of SeaSpine to the contrary (including the SLRSP, as defined below), the Sign-On Award will not be subject to any automatic accelerated vesting without continued service through an applicable vesting date except in cases of (i) involuntary termination following a future “Change in Control” (as defined in the Company’s most recently publicly filed form of Change in Control and Severance Agreement (the “CIC and Severance Agreement”)) that occurs with respect to the Company after the Closing Date, (ii) death, or (iii) disability. The grant date value of the Sign-On RSUs will be $750,000 and the grant date value of the Sign-On Stock Options will be $750,000 (in each case, subject to rounding to the nearest whole share), for a total grant value of $1,500,000. The Sign-On Award and future stock-based compensation grants made to you, will be subject to the terms and conditions of applicable plan documents and award agreements, which will be separately made available to you.
Change in Control and Severance Agreement: As of the Closing Date, you will remain a “Participant” under SeaSpine’s Senior Leadership Retention and Severance Plan (the “SLRSP”). In consideration for the offer being made by the Company pursuant to this letter and your acceptance of such offer, the Company and you agree that (i) (A) your acceptance and performance of the Position, and (B) any future reduction of your equity-based compensation solely as a result of across-the-board reductions to equity-based compensation levels that apply the applicable reduction percentage substantially similarly to all executives, shall in the case of each of clauses (A) and (B) not provide you with “Good Reason” under the SLRSP, (ii) the Merger shall constitute a “Change in Control” under the SLRSP, and following the Merger you will maintain the rights related thereto as set forth in the SLRSP, except that the provisions of and rights contained in Section 4 of the SLRSP (taking into account the provisions of Section 7 of the SLRSP) shall not apply with respect to the Sign-On Award or any other Company equity-based compensation granted to you by the Company after the Closing Date unless a future “Change in Control” (as defined in the CIC and Severance Agreement) occurs with respect to the Company after the Closing Date. Notwithstanding the foregoing, it is the intent of the Company to offer you the ability to enter into, within sixty (60) days of the Closing Date, a new agreement that is substantially equivalent to the CIC and Severance Agreement, which if entered into, would supersede
your rights under the SLRSP (though the new CIC and Severance Agreement will memorialize that you will remain protected under the new agreement during the two-year period following the Merger in the same manner that you are during the one-year “Protection Period” under the SLRSP, i.e., you will be in a “CIC Period” under the new CIC and Severance Agreement for two years). The final terms of such CIC and Severance Agreement will be subject to review and approval by the Compensation Committee, as constituted following the Closing. Notwithstanding the foregoing, you understand and acknowledge that, if you become employed by the Company, you will be an “at-will” employee at all times during your employment.
D&O Indemnification Agreement: Under separate cover, you will receive a D&O Indemnification Agreement.
We very much look forward to working with you following consummation of the Merger.
Sincerely,
/s/ Michael E. Paolucci
Michael E. Paolucci
Chair of the Compensation Committee
| ACKNOWLEDGED, ACCEPTED, AND AGREED: |
| /s/ John Bostjancic |
| John Bostjancic |
Exhibit 10.4
December 30, 2022
Patrick Keran
c/o SeaSpine Holdings Corporation
5770 Armada Drive
Carlsbad, CA 92008
Dear Patrick,
Per our discussions, it gives me great pleasure to present this offer to join Orthofix Medical Inc. (“Parent” and, together with its direct and indirect current and future subsidiaries, and giving effect to any change of name that may occur in the future, the “Company”). This offer is made in connection with the pending merger of your current employer, SeaSpine Holdings Corporation or a direct or indirect subsidiary thereof (“SeaSpine”), into a wholly owned subsidiary of the Company (the “Merger”), and is made contingent upon and subject to the closing of the Merger (the “Closing”) pursuant to the terms of the merger agreement between the Company, SeaSpine and the aforementioned Company subsidiary (the “Merger Agreement”).
Starting Date: Your starting date as Parent’s Chief Legal Officer (the “Position”) will be on the date that the Closing occurs (the “Closing Date”). We currently anticipate that the Closing will occur in January 2023, subject to, among other things, the stockholders of SeaSpine adopting the Merger Agreement and the stockholders of the Company approving the issuance of shares of common stock of Parent (“Parent Common Stock”) that will occur in the Merger, in each case, at the respective special meeting of stockholders currently scheduled for January 4, 2023.
Compensation: Your compensation will be determined by the Compensation & Talent Development Committee (the “Compensation Committee”) of the Company’s Board of Directors (the “Board”). The Compensation Committee has approved the following compensation arrangements for you, effective as of the Closing:
Base Salary: An initial annual base salary of $480,000 to be paid in accordance with the Company’s regular payroll practices and less applicable deductions and tax withholdings.
Cash Incentive Bonus: You will be eligible to receive annual bonus compensation under and subject to the terms and conditions of the Company’s annual cash incentive program based on the achievement of goals established by the Compensation Committee and/or the Board from time-to-time. For 2023, your target bonus opportunity under the program will be equal to 70% of your annual base salary amount.
Equity Awards: You will be eligible to receive stock-based compensation, whether restricted stock units, performance-based stock units, stock options or otherwise, under the Company’s 2012 Long Term Incentive Plan, as amended, or other stock-based compensation plans that the Company may establish from time-to-time. In addition, to induce your acceptance of employment with the Company effective upon the Closing, the Compensation Committee has approved grants to you, effective upon and as of the close of business on the Closing Date, of (i) restricted stock units that settle in shares of Parent Common Stock (the “Sign-On RSUs”) and (ii) stock options to purchase shares of Parent Common Stock (the “Sign-On Common Stock,” and collectively with the Sign-On RSUs, the “Sign-On Award”). The Sign-On RSUs will vest in annual 33 1/3% installments over three years, and 1/3 of the Sign-On Stock Options will vest on the first anniversary the Closing Date, and remaining 2/3 of the Sign-On Stock Options will vest in eight equal quarterly installments thereafter, subject to your continued employment on each applicable vesting date. Notwithstanding anything in any agreement with or plan of SeaSpine to the contrary (including the SLRSP, as defined below), the Sign-On Award will not be subject to any automatic accelerated vesting without continued service through an applicable vesting date except in cases of (i) involuntary termination following a future “Change in Control” (as defined in the Company’s most recently publicly filed form of Change in Control and Severance Agreement (the “CIC and Severance Agreement”)) that occurs with respect to the Company after the Closing Date, (ii) death, or (iii) disability. The grant date value of the Sign-On RSUs will be $750,000 and the grant date value of the Sign-On Stock Options will be $750,000 (in each case, subject to rounding to the nearest whole share), for a total grant value of $1,500,000. The Sign-On Award and future stock-based compensation grants made to you, will be subject to the terms and conditions of applicable plan documents and award agreements, which will be separately made available to you.
Change in Control and Severance Agreement: As of the Closing Date, you will remain a “Participant” under SeaSpine’s Senior Leadership Retention and Severance Plan (the “SLRSP”). In consideration for the offer being made by the Company pursuant to this letter and your acceptance of such offer, the Company and you agree that (i) (A) your acceptance and performance of the Position, and (B) any future reduction of your equity-based compensation solely as a result of across-the-board reductions to equity-based compensation levels that apply the applicable reduction percentage substantially similarly to all executives, shall in the case of each of clauses (A) and (B) not provide you with “Good Reason” under the SLRSP, (ii) the Merger shall constitute a “Change in Control” under the SLRSP, and following the Merger you will maintain the rights related thereto as set forth in the SLRSP, except that the provisions of and rights contained in Section 4 of the SLRSP (taking into account the provisions of Section 7 of the SLRSP) shall not apply with respect to the Sign-On Award or any other Company equity-based compensation granted to you by the Company after the Closing Date unless a future “Change in Control” (as defined in the CIC and Severance Agreement) occurs with respect to the Company after the Closing Date. Notwithstanding the foregoing, it is the intent of the Company to offer you the ability to enter into, within sixty (60) days of the Closing Date, a new agreement that is substantially equivalent to the CIC and Severance Agreement, which if entered into, would supersede
your rights under the SLRSP (though the new CIC and Severance Agreement will memorialize that you will remain protected under the new agreement during the two-year period following the Merger in the same manner that you are during the one-year “Protection Period” under the SLRSP, i.e., you will be in a “CIC Period” under the new CIC and Severance Agreement for two years). The final terms of such CIC and Severance Agreement will be subject to review and approval by the Compensation Committee, as constituted following the Closing. Notwithstanding the foregoing, you understand and acknowledge that, if you become employed by the Company, you will be an “at-will” employee at all times during your employment.
D&O Indemnification Agreement: Under separate cover, you will receive a D&O Indemnification Agreement.
We very much look forward to working with you following consummation of the Merger.
| Sincerely, |
| /s/ Michael E. Paolucci |
| Michael E. Paolucci |
| Chair of the Compensation Committee |
| ACKNOWLEDGED, ACCEPTED, AND AGREED: |
| /s/ Patrick Keran |
| Patrick Keran |
Exhibit 99.1
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Orthofix and SeaSpine Announce Completion of Merger of Equals to Create a Leading Global Spine and Orthopedics Company
Orthofix and SeaSpine Stockholders Approve Merger
Lewisville, Texas — January 4, 2023 — Orthofix Medical Inc. (NASDAQ: OFIX) and SeaSpine Holdings Corporation today announced the successful completion of their previously announced merger of equals following the approval of each company’s stockholders at respective special meetings of stockholders held today. Of votes cast, 99% of SeaSpine common shares were voted in approval of the merger, and 98% of Orthofix common shares were voted in approval of the merger.
The merger will officially become effective as of 12:01 a.m. Eastern Standard Time on January 5, 2023, at which time, under the terms of the merger, a wholly-owned subsidiary of Orthofix will merge with and into SeaSpine, with SeaSpine continuing as the surviving company and a wholly-owned subsidiary of Orthofix. SeaSpine shares will cease trading on the Nasdaq Global Select Market at 8:00 p.m. Eastern Standard Time today, and holders of SeaSpine common stock will receive 0.4163 shares of Orthofix common stock for each share of SeaSpine common stock owned. Orthofix, as the corporate parent entity in the combined company structure, will continue to trade on NASDAQ under the symbol “OFIX.” The combined company will be renamed at a later date and until then will continue to be known as Orthofix Medical Inc.
The combined Orthofix is a leading global spine and orthopedics company with a complementary portfolio of biologics, innovative spinal hardware solutions, market-leading bone growth therapies, specialized orthopedic solutions and a leading surgical navigation system. The Company has approximately 1,600 employees, products distributed in 68 countries world-wide, and a global R&D, commercial and manufacturing footprint.
“The completion of this merger catalyzes our ambition to be an industry leader in spine and orthopedics,” said Keith Valentine, President and CEO of Orthofix effective as of the closing. “I’m privileged to lead this talented team and excited for all of the opportunities that lie ahead. Together we are stronger and better positioned to deliver innovative, quality-driven solutions for surgeons in their work to improve patients’ lives.”
Jon Serbousek, Executive Chairman of the combined company’s Board of Directors, said, “With broad, differentiated technologies, extensive commercial reach and a strong financial profile, we expect our combined company to drive meaningful market share gains, sustainable growth and value creation. We look forward to setting new standards of innovation and delivering on the many benefits we expect to provide for our shareholders, surgeons and employees.”
Board of Directors and Executive Leadership Team
Effective as of the closing of the merger, Orthofix’s nine-member Board of Directors includes:
| • | Jon Serbousek, Executive Chairman (most recently President and CEO, Orthofix) |
| • | Keith Valentine, Director, President and CEO (most recently President and Chief Executive Officer, SeaSpine) |
| • | Cathy Burzik, Lead Independent Director (former President, and CEO, Kinetic Concepts, Inc.) |
| • | Stuart Essig, Ph.D., Independent Director (Managing Director, Prettybrook Partners LLC) |
| • | Jason Hannon, Independent Director (President, and CEO, Mainstay Medical International plc) |
| • | John Henneman, III, Independent Director (former Chief Financial Officer, Integra Lifesciences Holdings) |
| • | James Hinrichs, Independent Director (Co-Founder, Atmas Health) |
| • | Shweta Singh Maniar, Independent Director (Global Leader, Healthcare & Life Science Solutions and Strategy, Google Cloud) |
| • | Michael Paolucci, Independent Director (Executive Vice President, Chief People Officer, Mirati Therapeutics) |
In addition to Mr. Valentine, previously announced members of the combined company’s executive leadership team include:
| • | Suzanne Armstrong, Chief Human Resources Officer |
| • | John Bostjancic, Chief Financial Officer |
| • | Roberto Donadello, Senior Vice President, Global Operations |
| • | Kim Elting, President, Global Orthopedics |
| • | Ehab Esmail, Senior Vice President, Global Quality, Regulatory and Clinical Affairs |
| • | Kevin Kenny, President, Global Spine |
| • | Patrick Keran, Chief Legal Officer |
| • | Tyler Lipschultz, President, Global Biologics |
| • | Beau Standish, President, Global Enabling Technologies |
About the Combined Company
The newly merged Orthofix-SeaSpine organization is a leading global spine and orthopedics company with a comprehensive portfolio of biologics, innovative spinal hardware, bone growth therapies, specialized orthopedic solutions and a leading surgical navigation system. Its products are distributed in 68 countries worldwide.
The Company is headquartered in Lewisville, Texas, and has primary offices in Carlsbad, CA, with a focus on spinal product innovation and surgeon education, and Verona, Italy, with an emphasis on product innovation, production, and medical education for Orthopedics. The combined company’s global R&D, commercial and manufacturing footprint also includes facilities and offices in Irvine, CA, Toronto, Canada, Sunnyvale, CA, Wayne, PA, Olive Branch, MS, Maidenhead, UK, Munich, Germany, Paris, France and Sao Paulo, Brazil. Inducement Grants Related to Merger with SeaSpine
As inducements to enter into employment with Orthofix and its subsidiaries following the merger with SeaSpine, Mr. Valentine, Mr. Bostjancic and Mr. Keran are respectively being granted restricted stock units that settle into 140,515; 35,128; and 35,128 shares of Orthofix common stock, and options to purchase 338,264; 84,566; and 84,566 shares of Orthofix common stock, and 64 additional employees joining from SeaSpine are in the aggregate being granted restricted stock units that settle into 244,362 shares of Orthofix common stock and options to purchase 369,644 shares of Orthofix common stock. All awards vest over three years, with the first one-third tranche of each award vesting on the first anniversary of grant, and are conditioned on the applicable employee’s continued service with Orthofix and its subsidiaries through the applicable vesting dates. The grants, which were approved by the Compensation & Talent Development Committee of Orthofix’s Board of Directors (as constituted prior to the merger), are being made effective as of January 5, 2023 under a standalone inducement plan approved pursuant to Nasdaq Marketplace Rule 5635(c)(4), but on terms substantially the same as grants made in the ordinary course under the Company’s 2012 Long Term Incentive Plan, as amended.
Advisors
Perella Weinberg Partners LP served as financial advisor to Orthofix, and Hogan Lovells US LLP served as its legal counsel. Piper Sandler & Co. served as financial advisor to SeaSpine, and DLA Piper LLP (US) served as its legal counsel.
Forward-Looking Statements
This press release includes forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the Securities Act of 1933, as amended. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,” “intends,” “predicts,” “potential,” or “continue” or other comparable terminology. Forward-looking statements in this press release include, but are not limited to, statements about the benefits of the merger that combines
SeaSpine Holdings Corporation with and into Orthofix Medical Inc.; the combined company’s growth opportunities, path for profitability and long-term value for stockholders and its future financial outlook, including future revenues and cost synergies. Each forward-looking statement contained in this press release is subject to risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statement. Applicable risks and uncertainties include, among others, the failure to integrate the businesses and realize synergies and cost-savings from the transaction or delay in realization thereof; operating costs and business disruption following the transaction, including adverse effects on employee retention and on business relationships with third parties; transaction costs; actual or contingent liabilities; the adequacy of the combined company’s capital resources; other business effects, including the effects of industry, economic or political conditions outside of the combined company’s control; failure to achieve the anticipated benefits of new products, and the risks identified under the heading “Risk Factors” in Orthofix Medical Inc.’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, which was filed with the SEC on February 25, 2022, and SeaSpine Holdings Corporation’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 15, 2022, as well as both companies’ subsequent Quarterly Reports on Form 10-Q and other information filed by each company with the SEC. Investors should not place considerable reliance on the forward-looking statements contained in this press release. You are encouraged to read Orthofix’s and SeaSpine’s past filings with the SEC, as well as Orthofix’s current and future filings (as parent in the combined company structure), available at www.sec.gov, for a discussion of these and other risks and uncertainties. The forward-looking statements in this press release speak only as of the date of this release, and Orthofix undertakes no obligation to update or revise any of these statements. The combined company’s business is subject to substantial risks and uncertainties, including those referenced above. Investors, potential investors, and others should give careful consideration to these risks and uncertainties. Any forward-looking statement speaks only as of the date hereof, unless it is specifically otherwise stated to be made as of a different date. We undertake no obligation to update, and expressly disclaim any duty to update, our forward-looking statements, whether as a result of circumstances or events that arise after the date hereof, new information, or otherwise.
Contacts
Alexa Huerta
Investor Relations
Tel 214 937 3190
Denise Landry
Media Relations
Tel 214 937 2529