Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ORTHOFIX
INTERNATIONAL N.V.
(Exact
name of Registrant as specified in its charter)
Netherlands
Antilles
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Not
Applicable
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification Number)
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|
|
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7
Abraham de Veerstraat
Curacao,
Netherlands Antilles
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Not
Applicable
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Stock
Options Granted Pursuant to
Inducement
Grant Nonqualified Stock Option Agreement
between
Orthofix
International N.V. and Robert S. Vaters
(Full
title of the plan)
Orthofix
International N.V.
800
Boylston Street
39th
Floor
The
Prudential Tower
Boston,
Massachusetts 02199
(617)
912-9210
(Name,
address and telephone number of agent for service)
Copies
to:
Jonathan
B. Newton
Baker
& McKenzie LLP
Pennzoil
Place, South Tower
711
Louisiana, Suite 3400
Houston,
Texas 77002
(713)
427-5000
CALCULATION
OF REGISTRATION FEE
Title
of Each Class of
Securities
to be
Registered
(1)
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price Per
Share
(2)
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Proposed
Maximum
Aggregate
Offering
Price
(2)
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Amount
of
Registration
Fee
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Common
Stock, par value $0.10 per share (“Common
Stock”)
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150,000 |
(1) |
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$ |
12.62 |
|
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$ |
1,893,000 |
|
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$ |
74.45 |
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(1)
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150,000
shares of Common Stock of Orthofix International N.V. (the “Company”) being
registered hereby relate to a certain stock option agreement between the
Company and Robert S. Vaters, the Company’s Executive Vice President and
Chief Financial Officer. In addition, this Registration
Statement, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the “Securities
Act”), shall cover any additional shares of Common Stock that
become issuable 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.
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(2)
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The
Proposed Maximum Offering Price Per Share and the Proposed Maximum
Aggregate Offering Price are estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) and 457(h) under
the Securities Act, on the basis of the average of the high and low prices
for the shares of Common Stock reported on the Nasdaq Global Select Market
on November 12, 2008.
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This
Registration Statement is filed by the Company to register securities issuable
upon the exercise of stock options granted to Robert S. Vaters (“Vaters”), the
Company’s Executive Vice President and Chief Financial Officer, pursuant to that
certain Inducement Grant Nonqualified Stock Option Agreement between the Company
and Vaters dated September 9, 2008.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1.
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Plan
Information.*
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Item
2.
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Registrant
Information and Employee Plan Annual Information.
*
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_________________________
* 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.
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Incorporation
of Documents by Reference.
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The
following documents, which have been filed with the Securities and Exchange
Commission (the “Commission”), are
incorporated herein by reference and made part of this Registration Statement;
provided, however, that the Company is
not incorporating any information furnished under either Item 2.02 or
Item 7.01 of any current report on Form 8-K:
(a) The
Company’s Annual Report on Form 10-K (Commission File No. 0-19961) for the
fiscal year ended December 31, 2007, filed on February 29, 2008;
(b) All
other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December
31, 2007; and
(c) The
description of the Company’s shares of Common Stock contained in the Company’s
Registration Statement on Form F-1 (Commission File No. 33-46245), filed with
the Commission on March 6, 1992 under the Securities Act.
In
addition, all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act (other than information furnished
under Item 2.02 or Item 7.01 of any current report on Form 8-K), after the date
of this Registration Statement but before the Company files 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.
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Description
of Securities.
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Not
applicable.
Item
5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
Item
6.
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Indemnification
of Directors and Officers.
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The
Company’s Articles of Association generally include provisions related to the
indemnification of officers and directors and the Company’s ability to purchase
insurance against liability which officers and directors may incur in their
capacities as such. The Company’s standard form of indemnity
agreement for officers and directors further outlines the Company’s mandatory
and permissive indemnity and insurance obligations. The general
effect of the Company’s Articles of Association and form of indemnity agreement
are summarized below.
Articles of
Association
Article
11 of the Company’s Articles of Association generally provides, in relevant
part:
The
Company shall promptly indemnify, to the full extent permitted by law, any
person made or threatened to be made a party to a threatened, pending or
completed action, claim, litigation, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative, predicated on any
applicable law of any jurisdiction, whether a derivative action and/or whether
formal or informal, by reason of the fact that the person, or his or her
testator or intestate, is or was a director or officer of the Company or serves
or served any other enterprise as a director or officer at the request of the
Company or any predecessor of the Company against all judgments, amounts
incurred in settlement, fines, penalties and, with respect to any employee
benefit plan, any excise tax or penalty incurred in connection therewith, and
all other reasonable liabilities of every type or nature whatsoever incurred in
connection with the subject action and any and all reasonable expenses, fees,
costs, charges, attorneys’ fees and disbursements, other out-of-pocket costs,
reasonable compensation for time spent by the director or officer in connection
with the action for which he or she is not otherwise compensated by the Company,
any affiliate, any third party or other entity and any and all other reasonable
direct and indirect costs of any type or nature whatsoever, he or she may incur
in connection with such action, if he did not engage in misconduct.
The Company shall from time to time pay
to or reimburse a director or officer, or such other person or entity as the
director or officer may designate in writing to the Company, any and all
reasonable expenses, fees, costs, charges, attorneys’ fees and disbursements,
other out-of-pocket costs, reasonable compensation for time spent by the
director or officer in connection with the action for which he or she is not
otherwise compensated by the Company, any affiliate, any third party or other
entity and any and all other reasonable direct and indirect costs of any type or
nature whatsoever incurred by or on behalf of such director or officer in
connection with any action in advance of the final disposition or conclusion of
any such action within ten days after the receipt of the director’s or officer’s
written request therefore; provided, that the director or officer furnishes to
the Company an executed written certificate affirming his or her good faith
belief that he or she has not engaged in misconduct which would render
indemnification impermissible under Article 11 or applicable law, and agrees in
writing to repay any advances made if it is ultimately determined by a court of
competent jurisdiction, or other panel or authority consented to by the director
or officer, that he or she is not entitled to be indemnified by the
Company.
The
Company has the power to purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Company, and/or is or was serving as
a director or officer of an affiliate, against any liability asserted against
him or her and/or incurred by or on behalf of him or her in any such capacity,
or arising out of his or her status as such a director or officer, whether or
not the Company would have the power to indemnify him or her against such
liabilities under this Article 11 or under applicable law.
The
purchase and maintenance of such insurance shall not in any way limit or affect
the rights and obligations of the Company and/or any director or officer under
Article 11. Such insurance may, but need not, be for the benefit of all
directors or officers of the Company and those serving as directors or officers
of one or more affiliates. The Company may also create a trust fund, grant a
security interest and/or use other means (including, without limitation, letters
of credit, surety bonds and/or other similar arrangements), as well as enter
into contracts providing indemnification to the full extent permitted by law and
including as part thereof provisions with respect to any or all of the foregoing
to ensure the payment of such amounts as may become necessary to effect
indemnification as provided herein, therein or elsewhere. Such contracts may
also include, without limitation, procedures for the determination of the right
to indemnification (including the choice of venues and courts, agencies, panels
or other authorities designated to make such determination), burden of proof,
remedies for failure to make prompt payment, and other matters pertaining to
both the substance of and procedures for indemnification.
The right
to indemnification against liabilities and advancement of expenses provided to a
director or officer by Article 11 shall not be deemed exclusive of any other
rights to indemnification against liabilities and advancement of expenses which
any director or officer of the Company and/or of an affiliate may be entitled
under any charter provision, written agreement, resolution, vote of shareholders
or disinterested directors of the Company or otherwise, both as to acts in his
or her official capacity as such director or officer of the Company and/or of an
affiliate or as to acts in any other capacity while holding such office or
position, whether or not the Company would have the power to indemnify against
liabilities or advance expenses to the director or officer under Article 11 or
under applicable law.
The terms
and provisions of Article 11 shall continue as to a director or officer
subsequent to the cessation of his or her tenure as such, and such terms and
provisions shall be binding upon and inure to the benefit of the heirs, estate,
executors and administrators of such director or officer and the successors and
assigns of the Company, including, without limitation, any successor to the
Company by way of merger, consolidation and/or sale or disposition of all or
substantially all of the assets or capital stock of the Company. Except as
provided in Article 11, all rights and obligations of the Company and the
directors or officers shall continue in full force and effect despite the
subsequent amendment or modification of the Company’s Articles of Association,
and such rights and obligations shall not be affected by any such amendment or
modification, any resolution of directors or shareholders of the Company, or by
any other corporate action which conflicts with or purports to amend, modify,
limit or eliminate any of the rights or obligations of the Company and/or of the
directors or officers.
Indemnity
Agreement
The
Company has entered into indemnity agreements with certain of its directors and
officers, which agreements further clarify, expand and, in some cases, limit the
director’s or officer’s rights to indemnification in specific
circumstances.
Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
Reference
is made to the attached Exhibit Index, which is incorporated herein by
reference.
The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which any offers or sales are being made, a
post-effective amendment to this Registration
Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the 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 the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
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(iii)
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To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any other
material change to such information in the registration
statement;
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provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
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(2)
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That,
for the purpose of determining any liability under the Securities Act of
1933, 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.
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(3)
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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.
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(4)
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That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
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(i)
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If
the Registrant is relying on
Rule 430B:
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(A)
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Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and
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(B)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i),
(vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part
of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date
of the first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability purposes of
the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective date;
or
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(ii)
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If
the Registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or
other than prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement as of the
date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such date of first
use.
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(5)
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That,
for the purpose of determining liability of the Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities:
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The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to Rule
424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned Registrant or used or referred to by the undersigned
Registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned Registrant or its
securities provided by or on behalf of the undersigned Registrant;
and
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(iv)
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Any
other communication that is an offer in the offering made by the
undersigned Registrant to the
purchaser.
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(b)
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Filings Incorporating
Subsequent Exchange Act Documents by
Reference.
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The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the 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.
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(c)
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Filing of Registration
Statement on Form S-8.
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Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant 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, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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
Boston, State of Massachusetts, on this 13th day of
November, 2008.
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ORTHOFIX
INTERNATIONAL N.V.
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By:
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/s/
Alan W. Milinazzo
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Alan W. Milinazzo
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President,
Chief Executive Officer and
Director
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POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS that each of the undersigned directors and officers of
Orthofix International N.V. hereby appoints each of Alan W. Milinazzo, Robert S.
Vaters and Raymond C. Kolls, jointly and severally, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, with full
power to act alone, to sign on his behalf and in the capacity set forth below,
any and all amendments and post-effective amendments to this Registration
Statement on Form S-8 and to file each such amendment and post-effective
amendment to this Registration Statement, with all exhibits thereto, and any and
all other documents in connection therewith, with the Commission, hereby
granting unto said attorney-in-fact and agent full power and authority to do and
perform any and all acts and things requisite and necessary to be done in and
about the premises as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Name
and Signature
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Title
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Date
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/s/ Alan W. Milinazzo
Alan
W. Milinazzo
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President,
Chief Executive Officer and Director
(Principal
Executive Officer)
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November
13, 2008
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/s/ Robert S. Vaters
Robert
S. Vaters
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Executive
Vice President and Chief Financial Officer
(Principal
Financial and Accounting Officer)
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November
13, 2008
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/s/ James F. Gero
James
F. Gero
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Chairman
of the Board of Directors
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November
13, 2008
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/s/ Peter J. Hewett
Peter
J. Hewett
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Deputy
Chairman of the Board of Directors
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November
13, 2008
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/s/ Jerry
C. Benjamin
Jerry
C. Benjamin
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Director
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November
13,
2008
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Name
and Signature
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Title
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Date
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/s/ Charles W. Federico
Charles
W. Federico
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Director
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November
13, 2008
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/s/ Guy Jordan
Guy
Jordan
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Director
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November
13, 2008
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/s/ Thomas J. Kester
Thomas
J. Kester
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Director
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November
13, 2008
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/s/ Maria Sainz
Maria
Sainz
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Director
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November
13, 2008
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/s/ Walter von Wartburg
Walter
von Wartburg
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Director
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November
13, 2008
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/s/ Kenneth R. Weisshaar
Kenneth
R. Weisshaar
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Director
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November
13,
2008
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EXHIBIT
INDEX
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Exhibit
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Number
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4.1
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Certificate
of Incorporation of Orthofix International N.V. (filed as an exhibit to
the annual report on Form 20-F of Orthofix International N.V. dated June
29, 2001 and incorporated herein by reference).
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4.2
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Articles
of Association of Orthofix International N.V., as amended (filed as an
exhibit to the quarterly report on Form 10-Q of Orthofix International
N.V. for the quarter ended June 30, 2008 and incorporated herein by
reference).
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4.3
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Form
of Inducement Grant Nonqualified Stock Option Agreement between Orthofix
International N.V. and Robert S. Vaters (filed as an exhibit to the
current report on Form 8-K of Orthofix International N.V dated September
10, 2008 and incorporated herein by reference).
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Opinion
of STvB Advocaten (Europe) N.V..
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Consent of Ernst
& Young LLP, Independent Registered Public Accounting
Firm.
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23.2*
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Consent
of STvB Advocaten (Europe) N.V. (included in Exhibit
5).
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24*
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Power
of Attorney (included on signature
pages).
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____________________
* Filed
herewith