As filed with the Securities and Exchange Commission on March 1, 2011
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TORNIER N.V.
(Exact name of registrant as specified in its charter)
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The Netherlands |
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98-0509600 |
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(State or other jurisdiction of |
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(I.R.S. Employer |
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incorporation or organization) |
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Identification Number) |
Tornier N.V. Amended and Restated Stock Option Plan
Tornier N.V. 2010 Incentive Plan
Tornier N.V. 2010 Employee Stock Purchase Plan
(Full title of the plan)
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
(+ 31) 20 675 4002
(Address, including zip code and telephone number, including area code, of principal executive offices)
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
(+ 31) 20 675 4002
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
Cristopher Greer, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o Non-accelerated filer x |
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(Do not check if a smaller reporting company) |
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Accelerated filer o Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of securities to be
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Amount to be
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Proposed maximum
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Proposed maximum
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Amount of
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Ordinary shares, par value €0.03 |
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1,532,629 |
(1) |
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18.36 (3) |
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$ |
28,139,068.44 |
(3) |
$ |
3,266.95 |
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3,747,888 |
(2) |
$ |
13.39-$22.50 (4) |
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$ |
63,531,598.68 |
(5) |
$ |
7,376.02 |
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(1) |
Represents 1,199,296 ordinary shares issuable in connection with equity awards that may be granted in the future pursuant to the Tornier N.V. 2010 Incentive Plan (the “Incentive Plan”) and 333,333 ordinary shares issuable in connection with equity awards that may be granted in the future pursuant to the Tornier N.V. 2010 Employee Stock Purchase Plan (the “Stock Purchase Plan”). |
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(2) |
Represents 3,747,888 ordinary shares issuable with respect to outstanding options previously granted pursuant to the Tornier N.V. Amended and Restated Stock Option Plan (the “Option Plan”, and collectively with the Stock Purchase Plan and the Incentive Plan, the “Plans”). |
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(3) |
Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act of 1933, as amended, the proposed maximum aggregate offering price is the product obtained by multiplying (i) $18.36 (the average of the high and low prices of Tornier N.V.’s ordinary shares on February 25, 2011) by (ii) 1,532,629 (number of ordinary shares issuable in connection with equity awards that may be granted in the future pursuant to the Incentive Plan and the Stock Purchase Plan). |
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(4) |
The per-share exercise price with respect to (i) 892,224 of the outstanding options is $13.39, (ii) 793,882 of the outstanding options is $13.89, (iii) 1,017,133 of the outstanding options is $16.98, (iv) 48,405 of the outstanding options is $18.00, and (v) 996,244 of the outstanding options is $22.50. |
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(5) |
Reflects the aggregate offering price based on the per-share exercise price of (i) $13.39 per share with respect to 892,224 of the outstanding options, (ii) $13.89 per share with respect to 793,882 of the outstanding options, (iii) $16.98 per share with respect to 1,017,133 of the outstanding options, (iv) $18.00 per share with respect to 48,405 of the outstanding options, and (v) $22.50 per share with respect to 996,244 of the outstanding options. |
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(6) |
In addition, this Registration Statement covers an indeterminable number of additional shares as may hereafter be offered or issued, pursuant to the Plans, to prevent dilution resulting from stock splits, stock dividends, or similar transactions effected without receipt of consideration. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this “Registration Statement”) is filed by Tornier N.V. (the “Company”) to register 4,947,184 ordinary shares, par value €0.03 per share, which are issuable with respect to outstanding options previously granted pursuant to the Option Plan, and which are available for future issuance pursuant to awards to be granted in the future under the Incentive Plan. As of the effective date of the Company’s Registration Statement on Form S-1, File No. 333-167370, filed with the Commission on June 8, 2010, as amended by Amendments Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12, filed on July 15, August 11, September 14, October 4, October 14, October 27, November 12, January 7, January 18, January 21, January 31, and February 2, 2011, respectively, (the “Form S-1 Registration Statement”), the Company ceased making option grants under the Option Plan, and the number of ordinary shares that remained available for grant under the Option Plan as of such date became available for grant under the Incentive Plan. The number of ordinary shares forfeited upon the expiration, cancellation, forfeiture, cash settlement, or other termination of an outstanding option under the Option Plan following the effective date of the Form S-1 Registration Statement shall also become issuable pursuant to the Incentive Plan. Additionally, this Registration Statement covers 333,333 ordinary shares which may be issued under the Stock Purchase Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this Registration Statement have been or will be sent or given to participating employees as specified in Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”), in accordance with the rules and regulations of the United States Securities and Exchange Commission (the “Commission”). Such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Commission by the Company, are incorporated by reference into the Registration Statement:
(a) the Company’s Prospectus filed on February 3, 2011, pursuant to Rule 424(b) under the Securities Act, in connection with the Company’s Form S-1 Registration Statement, in which there is set forth the Company’s audited financial statements for the year ended December 27, 2009;
(b) the Company’s Prospectus filed on February 3, 2011, pursuant to Rule 424(b) under the Securities Act, in connection with the Company’s Form S-1 Registration Statement, in which there is set forth the Company’s unaudited financial statements for the three quarters ended October 3, 2010;
(c) the Company’s Current Report on Form 8-K, filed on February 28, 2011, pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and
(d) the description of the Company’s ordinary shares, €0.03 par value per share, which is contained in the Prospectus included in the Company’s Form S-1 Registration Statement.
In addition, all documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents with the Commission. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our articles of association provide that we shall indemnify any of our directors against all adverse financial effects incurred by such person in connection with any action, suit or proceeding if such person acted in good faith and in a manner that reasonably could be believed to be in or not opposed to our best interests. In addition, we have entered into indemnification agreements with our directors and officers.
Each indemnification agreement, which is governed by the laws of the State of Delaware (USA), provide, among other things, for indemnification to the fullest extent permitted by law and our articles of association against any and all expenses (including attorneys’ fees) and liabilities, judgments, fines and amounts paid in settlement actually and reasonably incurred by a director or officer or on such director or officer’s behalf in connection with such action, suit or proceeding and any appeal therefrom, but shall only be provided if the director or officer acted in good faith and in a manner such director or officer reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action, suit or proceeding, had no reasonable cause to believe such director or officer’s conduct was unlawful. Each indemnification agreement provides that the director or officer shall not be indemnified and advanced expenses (i) with respect to an action, suit or proceeding initiated by the director or officer unless so authorized by the board of directors of the Company or (ii) with respect to any action, suit or proceeding instituted by the director or officer to enforce or interpret such indemnification agreement unless the director or officer is successful in establishing a right to indemnification in such action, suit or proceeding, in whole or in part, or unless and to the extent that the
court in such action, suit or proceeding shall determine that, despite such director or officer’s failure to establish the right to indemnification, the director or officer is entitled to indemnity for such expenses.
The Company currently maintains liability insurance for its directors and officers. Such insurance would be available to directors and officers of the Company in accordance with its terms.
Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors and officers pursuant to the foregoing provisions, we have been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
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Exhibit No. |
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Description of Exhibit |
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5 |
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Opinion of Stibbe N.V. as to the validity of shares to be issued. |
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23.1 |
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Consent of Stibbe N.V. (included in the opinion filed as Exhibit 5 hereto). |
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23.2 |
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Consent of Ernst & Young LLP - Independent Registered Public Accounting Firm. |
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24 |
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Power of Attorney (included on the signature page). |
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to the 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 the Registration Statement (or the most recent post-effective amendment thereof), which individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(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 with, or furnished to, the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has 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 the Company of expenses incurred or paid by a director, officer, or controlling person of the Company 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 Company 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 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 Edina, State of Minnesota, on the 1st day of March, 2011.
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TORNIER N.V. |
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By: |
/s/ Douglas W. Kohrs |
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Name: |
Douglas W. Kohrs |
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Title: |
President and Chief Executive Officer |
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POWER OF ATTORNEY
In accordance with 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 dates stated. Each person whose signature appears below constitutes and appoints Douglas W. Kohrs and Sean D. Carney as his true and lawful attorney-in-fact and agent, each acting along with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) and exhibits to this Registration Statement, and to any registration statement filed under Commission Rule 462, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, 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 dates indicated:
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Signature |
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Title |
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Date |
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/s/ Douglas W. Kohrs |
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March 1, 2011 |
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Name: Douglas W. Kohrs |
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President and Chief Executive Officer
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/s/ Carmen L. Diersen |
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March 1, 2011 |
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Name: Carmen L. Diersen |
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Principal Financial and Accounting Officer
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/s/ Sean D. Carney |
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March 1, 2011 |
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Name: Sean D. Carney |
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Director |
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Signature |
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Title |
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/s/ Richard B. Emmitt |
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March 1, 2011 |
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Name: Richard B. Emmitt |
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Director |
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/s/ Pascal E.R. Girin |
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March 1, 2011 |
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Name: Pascal E.R. Girin |
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Director |
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/s/ Kevin C. O’Boyle |
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March 1, 2011 |
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Name: Kevin C. O’Boyle |
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Director |
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/s/ Alain Tornier |
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March 1, 2011 |
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Name: Alain Tornier |
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Director |
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/s/ Richard F. Wallman |
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March 1, 2011 |
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Name: Richard F. Wallman |
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Director |
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/s/ Elizabeth H. Weatherman |
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March 1, 2011 |
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Name: Elizabeth H. Weatherman |
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Director |
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INDEX TO EXHIBITS
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Exhibit No. |
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Description of Exhibit |
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5 |
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Opinion of Stibbe N.V. as to the validity of shares to be issued. |
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23.1 |
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Consent of Stibbe N.V. (included in the opinion filed as Exhibit 5 hereto). |
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23.2 |
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Consent of Ernst & Young LLP - Independent Registered Public Accounting Firm. |
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24 |
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Power of Attorney (included on the signature page). |
Exhibit 5
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Tornier N.V.
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Stibbe N.V.
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Tornier N.V. — Registration Statement on Form S-8
Ladies and Gentlemen,
(1) We have acted as legal counsel to Tornier N.V. (the “ Company ”), with respect to matters of Netherlands law, in connection with the filing by the Company under the Securities Act of 1933, as amended, of a registration statement on Form S-8, dated the date hereof (the “ Registration Statement ”) with the United States Securities and Exchange Commission. The Registration Statement relates to the registration of up to an aggregate of 5,000,000 ordinary shares of the Company (par value EUR 0.03) that may be issued under the Tornier N.V. Amended and Restated Stock Option Plan (the “ Option Plan ”) and the Tornier N.V. 2010 Incentive Plan (the “ Incentive Plan ”), and 333,333 ordinary shares of the Company (par value EUR 0.03) that may be issued under the Tornier N.V. 2010 Employee Stock Purchase Plan (the “ Shares ”, and each a “ Share ”) (the “ Stock Purchase Plan ”, and together with the Option Plan and the Incentive Plan, the “ Plans ”).
(2) For the purpose of this opinion, we have examined and relied upon photocopies or copies received by fax or by electronic means, or originals if so expressly stated, of the following documents:
(a) the Registration Statement;
(b) the Plans;
(c) an extract from the Trade Register of the Chamber of Commerce ( Kamer van Koophandel, afdeling Handelsregister) relating to the Company dated the date hereof (the “ Extract ”);
(d) the deed of incorporation of the Company dated June 23, 2006 and its articles of association ( statuten ) as amended on February 8 2011, which according to the Extract referred to above are the articles of association of the Company as currently in force;
(e) the minutes of the general meeting of shareholders of the Company held on August 26, 2010 inter alia , (i) approving the Incentive Plan by the Company and (ii) designating the management board of the Company (the “ Board of
Directors ”) as the authorised body to issue the Shares under the Plans and to exclude the statutory pre-emptive rights ( voorkeursrechten ) in respect thereof (the “ Designation ”);
(f) the minutes of meeting of the Board of Directors held on August 26, 2010;
(g) the minutes of meeting of the Board of Directors held on October 28, 2010 inter alia , resolving to amend the Option Plan and Stock Purchase Plan; and
(h) a written resolution of the shareholders of the Company dated October 28, 2010 inter alia , approving the Stock Purchase Plan by the Company,
and such other documents and matters of law as we have deemed necessary or appropriate for the purpose of rendering this opinion.
The resolutions and minutes listed under 2(e) up to 2(h) inclusive are together hereinafter referred to as “ Resolutions ”), the Resolutions and the Plans, together, referred to as the “ Documents ”.
References to the Civil Code, the Bankruptcy Act, the Financial Supervision Act and any other Codes or Acts are references to the Burgerlijk Wetboek , the Faillissementswet , the Wet op het financieel toezicht and such other Codes or Acts of the Netherlands, as amended.
(3) In rendering this opinion we have assumed:
(a) the legal capacity of natural persons, the genuineness of all signatures on, and the authenticity and completeness of all documents submitted to us as copies of drafts, originals or execution copies and the exact conformity to the originals of all documents submitted to us as photocopies or copies transmitted by facsimile or by electronic means and that all documents were at this date, and have through the date hereof, remained accurate and in full force and effect without modifications;
(b) that the Plans constitute and will constitute legal, valid and binding obligations of the participants in the Plans and the Company, respectively, and are enforceable in accordance with their respective terms under all applicable laws;
(c) that (a) the Designation, as renewed from time to time, will be in full force and effect (i) as at the date of granting of any rights to acquire the Shares under any of the Plans or, as the case may be, (ii) as at the date of issuance of any Shares under any of the Plans, and (b) any rights to acquire shares under the Option Plan have been validly granted;
(d) that any Shares will be issued, offered, sold, delivered, duly accepted and paid by the subscribers thereof, to persons legally entitled to purchase Shares (a) as contemplated and in accordance with the relevant Plan and the Registration Statement, (b) in accordance with any applicable law (including, without limitation, the laws of The Netherlands), (c) in accordance with the articles of
association of the Company as in force at the date of issuance of such Shares and (d) with such terms so as not to violate any applicable law (including, for the avoidance of doubt, any law applicable at the time of such issue, offer, sale, delivery and acceptance) and upon issue of each Share at least a consideration (in cash or in kind) will be paid to the Company on such Share with a value equal to the nominal amount thereof and any premium agreed upon;
(e) that the Company has not been declared bankrupt ( failliet verklaard ), granted suspension of payments ( surseance van betaling verleend ) or dissolved ( ontbonden ), nor has ceased to exist due to merger ( fusie ) or demerger ( splitsing ); although not constituting conclusive evidence, this assumption is supported by the contents of the Extract and by our on-line search of the Central Insolvency Register of the courts in the Netherlands ( Centraal Insolventieregister ) on the date hereof, which did not reveal any information which would render this assumption to be untrue;
(f) that each time a Share is issued, the authorised share capital ( maatschappelijk kapitaal ) of the Company is such that such Share can be validly issued;
(g) that the information set forth in the Extract is complete and accurate on the date hereof and consistent with the information contained in the file kept by the Trade Register with respect to the Company; and
(h) that any issuance of Shares will not require the Company to publish a prospectus or equivalent document under the provisions of chapter 5.1 of the Financial Supervision Act, as amended.
(4) This opinion is limited to matters of the laws of the Netherlands in effect on the date of this opinion.
(5) Based upon and subject to the foregoing and to the further qualifications, limitations and exceptions set forth herein, we are as at the date hereof of the following opinion:
(a) the Company has been duly incorporated and is validly existing under the laws of the Netherlands as a public limited company ( naamloze vennootschap ); and
(b) the Shares, when duly issued and paid for in accordance with the applicable Plan will be duly authorized and validly issued by the Company and will be fully paid and non-assessable.
(6) This opinion is subject to the following qualifications:
(a) we express no opinion as to the accuracy of any representations given by the Company or any other party (express or implied) under or by virtue of the Documents save in so far as the matters represented are the subject matter of specific opinions set forth above;
(b) the opinions expressed above are limited by any applicable bankruptcy ( faillissement ), suspension of payments ( surseance van betaling ), insolvency,
moratorium, reorganisation, liquidation, suretyship, fraudulent conveyance, or similar laws affecting the enforceability of rights of creditors generally (including rights of set-off) in any relevant jurisdiction including but not limited to section 3:45 of the Civil Code and section 42 of the Bankruptcy Act concerning fraudulent conveyance;
(c) the terms “ legal ”, “ valid ”, “ binding ” or “ enforceable ” (or any combination thereof), where used in this opinion, mean that the relevant obligations are of a type which the courts of the Netherlands generally recognize and enforce; the use of these terms does not suggest that the obligations will necessarily be enforced in accordance with their terms in all circumstances; in particular, enforcement of such obligations in the courts of the Netherlands will always be subject to applicable statutes of limitation, interpretation by the court (taking into account the intention of the parties to a contract), the effect of general principles of law including (without limitation) the concepts of reasonableness and fairness ( redelijkheid en billijkheid ) and abuse of circumstances ( misbruik van omstandigheden ), and defences based on error ( dwaling ), fraud ( bedrog ), duress ( dwang ), force majeure ( overmacht ) and set-off ( verrekening ); and
(d) the term “non-assessable” as used in this opinion means that a holder of a Share will not by reason of merely being such a holder, be subject to assessment or calls by the Company or its creditors.
(7) This opinion and any issue arising under this opinion will be governed by the laws of the Netherlands.
(8) We assume no obligation to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge occurring after the date hereof which may affect this opinion in any respect. This opinion is addressed to you and given for the sole purpose of the registration of the Shares with the United States Securities and Exchange Commission. We consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. However, it may not be otherwise disclosed or quoted to any person other than to your legal advisers or relied upon by any person or be used for any other purpose, without our prior written consent in each instance.
Yours faithfully,
Stibbe N.V.
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/s/ Derk Lemstra |
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/s/ Marius Josephus Jitta |
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Derk Lemstra |
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Marius Josephus Jitta |
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Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Amended and Restated Stock Option Plan, 2010 Incentive Plan, and 2010 Employee Stock Purchase Plan each of Tornier N.V. of our report dated April 9, 2010, except for Note 22 as to which the date is January 28, 2011, included in Amendment No. 12 to the Registration Statement (Form S-1 No. 333-167370) and related Prospectus of Tornier N.V. (formerly known as Tornier B.V.) for the registration of its ordinary shares.
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/s/Ernst & Young LLP |
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Minneapolis, MN |
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March 1, 2011 |
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