ex10_5.htm


    
      

    

    EXHIBIT
10.5

    


    


    Restricted
Stock Grant Agreement under

    the
Orthofix International N.V.

    Amended and Restated 2004
Long-Term Incentive Plan

    


    


    This
Restricted Stock Grant Agreement (the “Agreement”)
is made this ___ day of ________ 20__ (the “Grant
Date”) between Orthofix International N.V., a Netherlands Antilles
company (the “Company”),
and the person signing this Agreement adjacent to the caption “Award Recipient”
on the signature page hereof (the “Award
Recipient”).  Capitalized terms used and not otherwise defined
herein shall have the meanings attributed thereto in the Orthofix International
N.V. Amended and Restated 2004 Long-Term Incentive Plan (the “Plan”).

    


    WHEREAS,
pursuant to the Plan, the Company desires to afford the Award Recipient the
opportunity to acquire Common Shares on the terms and conditions set forth
herein;

    


    NOW,
THEREFORE, in connection with the mutual covenants hereinafter set forth and for
other good and valuable consideration, the parties hereto agree as
follows:

    


    1.           Grant of Restricted
Stock.

    


    (a)         Number of
Shares/Vesting.  The Company hereby grants to the Award
Recipient, on the Grant Date, an Award of _________ Common Shares under the Plan
subject to the vesting schedule and terms and conditions set forth below (the
“Restricted
Stock”).

    


    Subject
to earlier termination in accordance with the Plan or this Agreement and the
terms and conditions herein, Restricted Stock granted under this Agreement shall
vest with respect to one-hundred percent (100%) of the Common Shares granted
hereby on the third anniversary of the Grant Date.

    


    (b)         Additional
Documents.  The Award Recipient agrees to execute such
additional documents and complete and execute such forms as the Company may
require for purposes of this Agreement.

    


    (c)         Issuance of Restricted
Stock; Dividend and Distribution Rights.  Upon the vesting of
any Restricted Stock pursuant to the terms hereof, the restrictions of Sections
1 and 3 shall lapse with respect to such vested Restricted Stock.  As
soon as practicable following the vesting of any Restricted Stock, the Company
shall, in its sole discretion, either: (i) deliver or cause to be delivered to
the Award Recipient (or a Permitted Transferee, a transferee under a domestic
relations order, or following the Award Recipient's death, the Award Recipient's
estate, personal representative or beneficiary, as applicable) one or more share
certificates for the appropriate number of Common Shares that have vested (less
any Common Shares withheld under Section 7 below), or (ii) cause its third-party
recordkeeper to credit an account established and maintained in the name of the
Award Recipient (or a Permitted Transferee, a transferee under a domestic
relations order, or following the Award Recipient's death, the Award Recipient's
estate, personal representative or beneficiary, as applicable) with the number
of Common Shares that have vested (less any Common Shares withheld under Section
7 below); provided, however, that an actual share certificate shall be delivered
if requested by the Award Recipient (or a Permitted Transferee, a transferee
under a domestic relations order, or following the Award Recipient's death, the
Award Recipient's estate, personal representative or beneficiary, as
applicable). Such Common Shares shall be fully paid and nonassessable and shall
be issued in the name of the Award Recipient (or a Permitted Transferee, a
transferee under a domestic relations order, or following the Award Recipient's
death, the Award Recipient's estate, personal representative or beneficiary, as
applicable).


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    2.           Incorporation of
Plan. The Award Recipient acknowledges receipt of the Plan, a copy of
which is annexed hereto, and represents that he or she is familiar with its
terms and provisions and hereby accepts this grant of Restricted Stock subject
to all of the terms and provisions of the Plan and all interpretations,
amendments, rules and regulations which may, from time to time, be promulgated
and adopted pursuant to the Plan. The Plan is incorporated herein by reference.
In the event of any conflict or inconsistency between the Plan and this
Agreement, the Plan shall govern and this Agreement shall be interpreted to
minimize or eliminate any such conflict or inconsistency.

    


    3.           Restrictions on
Transfer.  Unless the Committee determines otherwise after the
Grant Date, the Restricted Stock shall not be transferable other than by will or
by the laws of descent and distribution or pursuant to a domestic relations
order; provided, however, the Restricted Stock may be transferred to the Award
Recipient’s family members or to one or more trusts or partnerships established
in whole or in part for the benefit of one or more of such family members
(collectively, the “Permitted
Transferees”). Any Restricted Stock transferred to a Permitted Transferee
shall be further transferable only by will or the laws of descent and
distribution or, for no consideration, to another Permitted Transferee of the
Award Recipient. The Committee may in its discretion permit transfers of
Restricted Stock other than those contemplated by this Section.  Any
Restricted Stock transferred pursuant to this Section 3 will remain subject to
the provisions contained in Section 1(a), this Section 3 and Section
5.

    


    4.           Notification of Election
Under Section 83(b) of the Code.  If the Award Recipient shall,
in connection with the grant of Restricted Stock under this Agreement, make the
election permitted under Section 83(b) of the Internal Revenue Code of 1986, as
amended (the “Code”),
(i.e., an election to
include in gross income in the year of transfer the amounts specified in Section
83(b) of the Code), then the Award Recipient must make such election using a
form provided by the Company and shall promptly request such form from the
Company.  The election must be received by the Internal Revenue
Service within 30 calendar days following the Grant Date.  The Award
Recipient shall also provide the Company with a copy of such election within 10
calendar days of filing a notice of election with the Internal Revenue Service
and shall, at the same time as such notice of election is provided to the
Company, remit to the Company in cash an amount sufficient to satisfy any tax
withholding obligations.

    


    5.           Termination of
Employment.

    


    (a)         General. A
termination of employment shall be deemed to have occurred if the Award
Recipient is no longer employed by, or otherwise providing services to, the
Company or any of its Subsidiaries for any reason. The Committee shall have
discretion to determine whether an authorized leave of absence (as a result of
disability or otherwise) shall constitute a termination of employment for
purposes of the Plan and this Agreement.

    


    (b)         Termination of Employment
Other than for Cause, Death, Permanent Disability or Voluntary Termination – No
Award Recipient Employment Agreement.  If, prior to vesting,
the Award Recipient's employment is terminated or the Award Recipient retires in
accordance with the Company’s retirement policies, the Restricted Stock shall be
considered vested as of the date of such termination of employment with respect
to the aggregate number of Common Shares as to which the Restricted Stock would
have been vested as of December 31 of the year in which such termination of
employment occurs. The unvested portion of the Restricted Stock shall be
forfeited by the Award Recipient, a Permitted Transferee, or a transferee under
a domestic relations order, as applicable, and cancelled by the Company as of
the date of the Award Recipient’s termination of employment, and the Award
Recipient shall have no further right or interest therein.  This
Section 5(b) only applies if the Award Recipient does not have an Employment
Agreement.  In no event shall this Section 5(b) apply if termination
is (i) for Cause, (ii) by reason of death or Permanent Disability or (iii) as a
result of a Voluntary Termination.


    
      
         


      

      
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    (c)         Termination of Employment
Other than for Cause, Death, Permanent Disability or Voluntary Termination –
Award Recipient has Employment Agreement. Notwithstanding Section 5(b)
above, in the event the Award Recipient has an Employment Agreement and, prior
to vesting, the Award Recipient's employment is terminated or the Award
Recipient retires in accordance with the Company’s retirement policies, then the
Restricted Stock shall be considered vested as of the date of such termination
of employment.  For the avoidance of doubt, a resignation by the Award
Recipient for “good reason” or words of similar meaning under any Employment
Agreement shall constitute a termination subject to the terms and provisions of
this Section 5(c) and upon such event the Restricted Stock shall be considered
vested as of the date of such termination of employment.  In no event
shall this Section apply if termination is (i) for Cause, (ii) by reason of
death or Permanent Disability or (iii) as a result of a Voluntary
Termination.

    


    (d)         Termination of Employment
for Cause; Voluntary Termination.  If, prior to vesting, (i)
the Award Recipient's employment with the Company and its Subsidiaries is
terminated by the Company or any of its Subsidiaries for Cause, or (ii) the
Award Recipient terminates employment under circumstances constituting a
Voluntary Termination, the unvested portion of the Restricted Stock shall be
forfeited by the Award Recipient, a Permitted Transferee, or a transferee under
a domestic relations order, as applicable, and cancelled by the Company as of
the date of the Award Recipient’s termination of employment, and the Award
Recipient, Permitted Transferee, or transferee under a domestic relations order,
as applicable, shall have no further right or interest therein unless the
Committee in its sole discretion shall determine otherwise.

    


    (e)         Termination of Employment
for Death or Permanent Disability. If the Award Recipient's employment
with the Company and its Subsidiaries terminates by reason of death or Permanent
Disability, the Restricted Stock shall automatically vest in full as of the date
of the Award Recipient’s termination of employment.

    


    (f)     
    Effect of Employment
Agreements Generally.  Terms of an Employment Agreement
expressly defining whether and in what manner (including upon termination of
employment) the unvested portion of any Restricted Stock shall vest, be
exerciseable or be cancelled shall control over the terms of this
Agreement.

    


    6.      
    Change in Control.
Upon the occurrence of a Change in Control, the Restricted Stock shall
automatically vest in full.

    


    7.           Withholding.  The
Award Recipient (or a Permitted Transferee, a transferee under a domestic
relations order, or following the Award Recipient’s death, the Award Recipient’s
estate, personal representative, or beneficiary, as applicable) shall be liable
for any and all U.S. federal, state or local taxes of any kind required by law
to be withheld with respect to the vesting of Restricted Stock, as well as for
any and all applicable withholding tax requirements of any other country or
jurisdiction.  When the Restricted Stock vests, the Company may, in
its discretion, permit or require the Award Recipient (or a Permitted
Transferee, a transferee under a domestic relations order, or following the
Award Recipient’s death, the Award Recipient’s estate, personal representative,
or beneficiary, as applicable) to satisfy all or part of his or her tax
withholding obligations by (a) paying cash to the Company, (b) having the
Company withhold an amount from any cash amounts otherwise due or to become due
from the Company to the Award Recipient, (c) having the Company withhold a
number of Common Shares that would otherwise become vested having a Fair Market
Value not in excess of the minimum amount of tax withholding obligations
required by law to be withheld with respect to such vesting, or (d) any
combination of the foregoing.


    
      
         


      

      
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    8.           No Employment or Other
Rights.  This grant of Restricted Stock does not confer upon
the Award Recipient any right to be continued in the employment of, or otherwise
provide services to,  the Company or any Subsidiary or other affiliate
thereof, or interfere with or limit in any way the right of the Company or any
Subsidiary or other affiliate thereof to terminate such Award Recipient’s
employment or other service relationship at any time.  For purposes of
this Agreement only, the term “employment” shall include circumstances under
which Award Recipient provides consulting or other services to the Company or
any of its Subsidiaries as an independent contractor, but such Award Recipient
is not, nor shall be considered, an employee; provided, however, nothing in this
Section 8 or this Agreement shall create an employment relationship between such
person and the Company or its applicable Subsidiary, as the usages described in
this Section are for convenience only.

    


    9.           Adjustment of and Changes in
Common Shares. In the event of any merger, consolidation,
recapitalization, reclassification, stock dividend, extraordinary dividend, or
other event or change in corporate structure affecting the Common Shares, the
Committee shall make such adjustments, if any, as it deems appropriate in the
number and class of shares subject to the Restricted Stock. The foregoing
adjustments shall be determined by the Committee in its sole
discretion.

    


    10.         Rights as a
Shareholder.  Except as otherwise provided in this Agreement,
the Award Recipient shall have all rights of a stockholder with respect to the
Restricted Stock granted under this Agreement, including voting
rights.  Notwithstanding the foregoing, the Award Recipient shall have
no rights to receive dividends with respect to any Restricted Stock granted
under this Agreement until the Award Recipient shall become the holder of record
thereof, and no adjustment shall be made for dividends or distributions or other
rights in respect of any Restricted Stock for which the record date is prior to
the date upon which the Award Recipient shall become the holder of record
thereof.

    


    11.         Discretionary Nature of
Plan.  The Plan is discretionary in nature, and the Company may
suspend, modify, amend or terminate the Plan in its sole discretion at any time,
subject to the terms of the Plan and any applicable limitations imposed by
law.  This Restricted Stock grant under the Plan is a one-time benefit
and does not create any contractual or other right to receive additional
Restricted Stock or other benefits in lieu of Restricted Stock in the
future.  Future grants, if any, will be at the sole discretion of the
Committee, including, but not limited to, the timing of any grant, the number of
shares of Restricted Stock granted, and the vesting provisions.

    


    12.         Miscellaneous
Provisions.

    


    (a)          Applicable
Law.  The validity, construction, interpretation and effect of
this instrument will be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.

    


    (b)         Notice.  Any
notice required by the terms of this Agreement shall be delivered or made
electronically, over the Internet or otherwise (with request for assurance of
recipient in a manner typical with respect to communications of that type), or
given in writing.  Any notice given in writing shall be deemed
effective upon personal delivery or upon deposit with the United States Postal
Service, by registered or certified mail, with postage and fees prepaid, and
shall be addressed to the Company at its principal executive office and to the
Award Recipient at the address that he or she has most recently provided to the
Company.  Any notice given electronically shall be deemed effective on
the date of transmission.


    
      
         


      

      
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    (c)         Headings.                      The
headings of sections and subsections are included solely for convenience of
reference and shall not affect the meaning of the provisions of this
Agreement.

    


    (d)         Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.

    


    (e)         Amendments. The Board
and the Committee shall have the power to alter or amend the terms of the grant
of Restricted Stock as set forth herein from time to time, in any manner
consistent with the provisions of Sections 16 and 19 of the Plan, and any
alteration or amendment of the terms of this grant of Restricted Stock by the
Board or the Committee shall, upon adoption, become and be binding on all
persons affected thereby without requirement for consent or other action with
respect thereto by any such person. The Committee shall give notice to the Award
Recipient of any such alteration or amendment as promptly as practicable after
the adoption thereof. The foregoing shall not restrict the ability of the Award
Recipient and the Board or the Committee by mutual written consent to alter or
amend the terms of this grant of Restricted Stock in any manner which is
consistent with the Plan.

    


    (f)     
    Binding Effect. This
Agreement shall be binding upon the heirs, executors, administrators and
successors of the Award Recipient and the Company.

    


    (g)         Entire
Agreement.  This Agreement and the Plan contain the entire
agreement between the Award Recipient and the Company regarding the grant of
Restricted Stock and supersede all prior arrangements or understandings with
respect thereto.  In the event the Award Recipient has an Employment
Agreement with the Company, any conflicts or ambiguities shall be resolved first
by reference to the Plan, then the Employment Agreement and finally to this
Agreement.  In the event such conflict or ambiguity cannot be resolved
by reference to the Plan, reference shall be made to the Employment
Agreement.  Finally, and only in the event such conflict or ambiguity
cannot be resolved by reference to the Plan and Employment Agreement, reference
shall be made to this Agreement.

    


    13.         Definitions. For
purposes of this Agreement, the following capitalized words shall have the
meanings set forth below.

    


    “Cause”
shall mean termination of the Award Recipient's employment because of the Award
Recipient's (i) involvement in fraud, misappropriation or embezzlement related
to the business or property of the Company, (ii) conviction for, or guilty plea
to, a felony or crime of similar gravity in the jurisdiction in which such
conviction or guilty plea occurs, (iii) unauthorized disclosure of any trade
secrets or other confidential information relating to the Company's business and
affairs (except to the extent such disclosure is required under applicable law),
or (iv) such other circumstances constituting a termination for cause under any
Employment Agreement.

    


    “Change in
Control” shall mean:

     

    (i)    
the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange
Act”)) (a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (A) the then outstanding shares of the
Company's common stock (the “Outstanding
Common Stock”) or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the “Outstanding
Voting Securities”); excluding, however, the following: (1) any
acquisition directly from the Company, other than an acquisition by virtue of
the exercise of a conversion privilege unless the security being so converted
was itself acquired directly from the Company; (2) any acquisition by the
Company; (3) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any entity controlled by the Company;
or (4) any acquisition pursuant to a transaction which complies with clauses
(A), (B) and (C) of subsection (iii) of this definition of Change of Control;
or


    
      
         


      

      
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    (ii)   
a change in the composition of the Board such that the individuals who, as of
the date hereof, constitute the Board (such Board shall be hereinafter referred
to as the “Incumbent
Board”) cease for any reason to constitute at least a majority of the
Board; provided,  however, for purposes of this paragraph, that any
individual who becomes a member of the Board subsequent to the date hereof,
whose election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of those individuals who are members
of the Board and who were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as though such individual
were a member of the Incumbent Board; but  provided further that any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board shall not be so considered as a member of the Incumbent Board;
or

    


    (iii)   consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company (“Corporate
Transaction”);  excluding, however, such a Corporate
Transaction pursuant to which all of the following conditions are met: (A) all
or substantially all of the individuals and entities who are the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than 50% of, respectively, the outstanding
shares of common stock, and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Corporate Transaction
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Corporate Transaction,
of the Outstanding Common Stock and Outstanding Voting Securities, as the case
may be, (B) no Person (other than the Company, any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Corporate
Transaction) will beneficially own, directly or indirectly, 50% or more of,
respectively, the outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined voting power of the
outstanding voting securities of such corporation entitled to vote generally in
the election of directors except to the extent that such ownership existed prior
to the Corporate Transaction, and (C) individuals who were members of the
Incumbent Board will constitute at least a majority of the members of the board
of directors of the corporation resulting from such Corporate
Transaction;


    
      
         


      

      
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    (iv)   the
approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company; or

    


    (v) 
  any similar or other definition contained in any Employment
Agreement (even if broader than as defined above).

    


    “Committee”
shall mean the Compensation Committee of the Board or such other committee
appointed by the Board to administer the Plan.

    


    “Employment
Agreement” shall mean a written employment, change in control or change
of control agreement between the Award Recipient and the Company and/or a
Subsidiary.  Employment Agreement expressly does not include any offer
letter, at-will employment arrangements or an employment or similar agreement
entered into outside the United States solely for purposes of complying with
local law requirements with respect to employment.  For purposes of
this Agreement only and subject to Section 8, the term “Employment Agreement”
shall include a written agreement under which the Award Recipient provides
consulting or other services as an independent contractor to the
Company.

     

    “Permanent
Disability” shall mean termination of the Award Recipient's employment as
a result of a physical or mental incapacity which substantially prevents the
Award Recipient from performing his or her duties as an employee and that has
continued for at least 180 days and can reasonably be expected to continue
indefinitely. Any dispute as to whether or not the Award Recipient is disabled
within the meaning of the preceding sentence shall be resolved by a physician
selected by the Committee.

    


    “Voluntary
Termination” shall occur when the Award Recipient voluntarily ceases
employment with, or the provision of services to, the Company and its
Subsidiaries for any reason or no reason (e.g., the Award Recipient elects to
cease being an employee or provide consulting services or the Award Recipient
resigns or quits).  For the avoidance of doubt, a Voluntary
Termination shall not occur as a result of termination of employment as a result
of death, Permanent Disability (as provided hereunder), or termination for “good
reason” or similar words (as permitted hereunder and pursuant to an Employment
Agreement) or as the result of the Optionee’s retirement in accordance with the
Company’s retirement policies.

    


    


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    EXECUTED
on the date first written above.

    


    


    
      	
              COMPANY:

            	
              ORTHOFIX
      INTERNATIONAL N.V.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	
              Alan
      W. Milinazzo

            
	 
      	
              Title:

            	
              Chief
      Executive Officer

            
	 
      	 
      	 
      
	
              AWARD
      RECIPIENT:

            	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	
              [           ]

            
	 
      	
              Title:

            	
              [           ]

            


    

    


     

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