Restricted Stock Grant Agreement under the Orthofix International N.V. Amended and Restated 2004 Long-Term Incentive Plan
Exhibit
10.7
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 __________ (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 33 1/3% of the shares covered hereby on each of the first,
second and third anniversaries of the Grant Date (each, a “Vesting
Date”); provided, however, that there shall be no proportionate or
partial vesting in the periods prior to each Vesting 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).
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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.
(b) Termination
of
Employment Other than for Cause, Death or Permanent Disability. If the Award
Recipient's employment is terminated prior to vesting other than for Cause,
death or Permanent Disability, 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.
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(c)
Termination of Employment for Cause. If the Award Recipient's
employment with the Company and its Subsidiaries is terminated by the Company
or
any of its Subsidiaries for Cause prior to vesting, the unvested portion of
the
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.
(d)
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.
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.
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.
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.
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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.
(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.
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(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.
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
(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.
“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.
(Remainder
of page intentionally left blank)
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EXECUTED
on the date first written
above.
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COMPANY:
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ORTHOFIX
INTERNATIONAL N.V.
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By:
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Name:
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Title:
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AWARD
RECIPIENT:
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By:
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Name:
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Title:
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