SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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Orthofix International N.V.
(Exact name of Registrant as specified in its charter)
Netherlands Antilles Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
7 Abraham de Veerstraat
Curacao, Netherlands Antilles
(Address of Registrant's principal executive offices)
ORTHOFIX INTERNATIONAL N.V.
2004 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Orthofix International N.V.
10115 Kincey Avenue
Suite 250
Huntersville, North Carolina 28078
(704) 948-2600
(Name, address and telephone number of agent for service)
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Copies to:
John J. Cannon, III
Shearman & Sterling LLP
599 Lexington Avenue, New York, NY 10022-6069
(212) 848-4000
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Aggregate Offering Price Registration Fee
(1) Security (2)
Common Stock, par value U.S.
$ 0.10 per share ("Common Stock") 509,000 $37.881 $19,281,429 $2,270
1,491,000 $39.20 $58,447,200 $6,880
--------- ---- ----
2,000,000 $77,728,629 $9,150
========================================================================================================================
(1) 2,000,000 shares of Common Stock are being registered under the
Orthofix International N.V. 2004 Long-Term Incentive Plan (the
"Plan"). In addition, this Registration Statement, pursuant to
Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), shall cover any additional shares of Common
Stock that become issuable under the Plan by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which
results in an increase in the number of shares of Common Stock of
Orthofix International N.V. (the "Registrant").
(2) The Proposed Maximum Offering Price Per Share and the Proposed
Maximum Aggregate Offering Price are based on (I) with respect to
509,000 shares of Common Stock under the Plan underlying stock
options previously awarded, the weighted average exercise price of
$37.881 and (II) with respect to 1,491,000 shares of Common Stock
under the Plan available for future awards under the Plan,
estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(h) and 457(c) under the Securities Act,
based upon the average of the bid and asked prices for the
Registrant's shares of Common Stock reported on the Nasdaq
National Market (the "Nasdaq") on March 15, 2005.
Page 1 of 10
Exhibit Index Appears on Page 10
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
----------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the "Note" to Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which we have been filed with the Securities
and Exchange Commission (the "Commission") are incorporated herein by reference
and made part of this Registration Statement:
(a) our Annual Report on Form 10-K (Commission File No. 0-19961) for
the fiscal year ended December 31, 2004, filed on March 15, 2005 (the "Form
10-K"); and
(b) the description of our shares of Common Stock contained in our
Registration Statement on Form 8-A (Commission File No. 0-19961), filed with the
Commission on March 20, 1992, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the description of the Rights of the
Registrant contained in our Registration Statement on Form 8-A (Commission File
No. 0-19961), filed with the Commission on August 21, 1995.
In addition, all documents subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Registration Statement but before we file a post-effective amendment to this
Registration Statement which indicate that all securities offered have been sold
or which deregister all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and are a part thereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Article 11 of the Registrant's Articles of Association generally
provides, in relevant part:
The Company will have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason
of the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or entity, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 that his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company.
The Company will have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or entity, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company and except that no indemnification will be made in respect of any
claim, issue or matter as to which such person shall have been finally adjudged
to be liable to the Company for improper conduct unless and only to the extent
that the court in which such action or suit was brought or any other court
having appropriate jurisdiction shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses,
judgments, fines and amounts paid in settlement which the court in which the
action or suit was brought or such other court having appropriate jurisdiction
shall deem proper.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in the two preceding paragraphs, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Any indemnification under the first two paragraphs of Article 11
(unless ordered by a court) will be made by the Company only as authorized by
contract approved, or by-laws, resolution or other action adopted or taken, by
the Board of Directors or by the shareholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Company as authorized by Article 11.
The indemnification and advancement of expenses provided by or granted
pursuant to the other paragraphs of Article 11 shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any law, by-law, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of the estate of such a person.
The Company shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under the provisions of Article 11.
For purposes of Article 11, reference to the "Company" shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, and
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of Article 11 with respect to the resulting or surviving
corporation if its separate existence had continued.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See attached "Index to Exhibits" list.
Item 9. Undertakings.
(a) We hereby undertake:
1. To file, during any period in which offers or sales are being made
of securities registered hereby, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission
by us pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) We hereby further undertake that, for purposes of determining any
liability under the Securities Act, each filing of our annual report filed on
Form 10-K pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of us pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by us of expenses incurred or paid by a director, officer or
controlling person of us in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
us is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Huntersville, State of North Carolina, on this 16th
day of March 2005.
ORTHOFIX INTERNATIONAL N.V.
By: /s/ Charles W. Federico
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Name: Charles W. Federico
Title: Chief Executive Officer and President
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints, jointly and severally, Charles W. Federico and
Thomas Hein, his true and lawful attorneys-in-fact and agents, each of whom may
act alone, with full powers of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign (1) a registration
statement or statements on Form S-8, or such other form as may be recommended by
counsel, to be filed with the Securities and Exchange Commission (the
"Commission"), and any and all amendments and post-effective amendments thereto,
and any and all post-effective amendments to registration statements or
statements on Form S-8 previously filed with the Commission, and any and all
instruments and documents filed as a part of or in connection with the said
registration statement or amendments thereto, with respect to the Orthofix
International N.V. 2004 Long-Term Incentive Plan, and (2) any registration
statements, reports and applications relating thereto to be filed by Orthofix
International N.V. (the "Company") with the Commission and/or any national
securities exchanges under the Securities Exchange Act of 1934, as amended, and
any and all amendments thereto, and any and all instruments and documents filed
as part of or in connection with such registration statements or reports or
amendments thereto; granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully for all intents and purposes as he
or she might or could do in person, and hereby ratifying and confirming all that
the said attorneys-in-fact and agents or any of them, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the indicated
capacities on this 16th day of March 2005.
Name and Signature Title
------------------ -----
*
------------------------ Chairman of the Board of Directors
James F. Gero
/s/ Charles W. Federico Chief Executive Officer, President and
--------------------------- Director (Principal Executive Officer)
Charles W. Federico
/s/ Thomas Hein Chief Financial Officer
--------------------------- (Principal Financial and Accounting Officer)
Thomas Hein
*
________________________ Director
Robert Gaines-Cooper
Name and Signature Title
------------------ -----
*
________________________ Director
Jerry C. Benjamin
*
________________________ Director
Peter J. Hewett
*
________________________ Director
Walter von Wartburg
*
________________________ Director
Thomas J. Kester
________________________ Director
Kenneth R. Weisshaar
________________________ Director
Guy Jordan
________________________ Director
Stefan Widensohler
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* By Thomas Hein,
(As Attorney-in-Fact)
EXHIBIT INDEX
Exhibit No. Description of Document
4.1 Articles of Association of Orthofix International N.V., as
amended to date (filed as an exhibit to the Quarterly Report on
Form 10-Q of Orthofix International N.V. for the quarter ended
September 30, 2004 and incorporated herein by reference)
4.2 Orthofix International N.V. 2004 Long-Term Incentive Plan, as
amended (filed as an exhibit to the Quarterly Report on Form 10-Q
of Orthofix International N.V. for the quarter ended September
30, 2004 and incorporated herein by reference)
4.3 Form of Nonqualified Stock Option Agreement under the Orthofix
International N.V. 2004 Long-Term Incentive Plan (filed as an
exhibit to the Annual Report on Form 10-K of Orthofix
International N.V. for the fiscal year ended December 31, 2004
and incorporated herein by reference)
4.4 Form of Nonqualified Stock Option Agreement for a Non-Employee
Director under the Orthofix International N.V. 2004 Long-Term
Incentive Plan (filed as an exhibit to the Annual Report on Form
10-K of Orthofix International N.V. for the fiscal year ended
December 31, 2004 and incorporated herein by reference)
**5 Opinion of Smeets Thesseling van Bokhorst Spigt, as to the
legality of the Common Shares being registered
**23.1 Consent of Ernst & Young LLP, independent auditors
**23.2 Consent of Smeets Thesseling van Bokhorst Spigt (included in
Exhibit 5)
**24 Power of Attorney (included on signature pages)
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** Filed herewith