As filed with the Securities and Exchange Commission on February 1, 2019

 

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 MEDICAL INC.

(Exact name of Registrant as specified in its charter)

 

Delaware

 

98-1340767

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification Number)

 

 

 

3451 Plano Parkway

Lewisville, Texas

 

75056

(Address of Principal Executive Offices)

 

(Zip Code)

 

Employee Inducement Restricted Stock Unit Agreement for Beth Stevenson

 

(Full title of the plan)

 

Orthofix Medical Inc.

3451 Plano Parkway

Lewisville, Texas 75056

(214) 937-2000

 

(Name, address and telephone number of agent for service)

 

 

Copies to:

Brian C. O’Fahey

Hogan Lovells US LLP

Columbia Square

555 Thirteenth St., NW

Washington, DC 20004

(202) 637-5600

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer

 

☒

  

Accelerated filer

 

☐

 

Emerging Growth Company

 

☐

 

 

 

 

 

 

 

 

 

 

 

Non-accelerated filer

 

☐  

  

Smaller reporting company

 

☐

 

 

 

 

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  

 

 

 

CALCULATION OF REGISTRATION FEE

Title of Each Class of

Securities to be

Registered (1)

 

Amount to be

Registered

 

 

Proposed Maximum

Offering Price Per

Share (2)

 

 

Proposed Maximum

Aggregate Offering

Price (2)

 

 

Amount of

Registration

Fee

 

Common Stock, par value $0.10 per share (“ Common Stock ”)

 

 

25,478

(1)

 

$

53.87

 

 

$

1,372,500

 

 

$

166.35

 

 

(1)

This Form S-8 registers 25,478 shares of Common Stock of Orthofix Medical Inc. (the “ Company ”) issuable upon the vesting of restricted stock units being granted on the date hereof pursuant to an Employee Inducement Restricted Stock Unit Agreement for Beth Stevenson (the “ Inducement Plan ”). 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.

 

(2)

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 February 1, 2019.

 

 

 

 

 

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 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 pursuant to either Item 2.02 or Item 7.01 (including any corresponding exhibits furnished pursuant to Item 9.01) of any Current Report on Form 8-K:

 

 

(a)

The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as amended by Amendment No. 1 on Form 10-K/A, filed with the SEC on April 26, 2018;

 

 

(b)

The Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018;

 

 

(c)

The Company’s Current Reports on Form 8-K or Form 8-K/A, as applicable, filed with the SEC on March 13, 2018, March 15, 2018, April 30, 2018, May 15, 2018, July 18, 2018, August 1, 2018 and August 6, 2018; and

 

 

(d)

The description of the Company’s Common Stock included in the final prospectus dated June 1, 2018, which was filed with the Commission on May 30, 2018 pursuant to Rule 424(b)(3), under the caption “Description of Orthofix Capital Stock” therein.

 

In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (other than information furnished under Item 2.02 or Item 7.01 (including any corresponding exhibits furnished pursuant to Item 9.01) of any Current Report on Form 8-K), on or 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.

Description of Securities.

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

 

Set forth below is a description of certain provisions of the certificate of incorporation of the Company, as amended (the “Certificate of Incorporation”), the bylaws of the Company (the “Bylaws”) and the Delaware General Corporation Law (“DGCL”), as such provisions relate to the indemnification of the directors and officers of the

 

 

Company. This description is intended only as a summary and is qualified in its entirety by reference to the Certificate of Incorpora tion, the Bylaws and the DGCL.

 

Section 102(b)(7) of the DGCL permits a corporation, in its certificate of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of directors to the corporation or its stockholders for monetary damages for breaches of fiduciary duty, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.

 

Section 145(a) of the DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, 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 corporation) by reason of his service as a director, officer, employee or agent of the corporation, or his service, at the corporation’s request, as a director, officer, employee or agent of another corporation or enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding provided that such director or officer acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such director or officer had no reasonable cause to believe his conduct was unlawful.

 

Section 145(b) of the DGCL empowers a corporation 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 corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit provided that such director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such director or officer shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

 

Section 145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in Section 145(a) or Section 145(b) of the DGCL or in the 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, provided that indemnification provided for by Section 145 of the DGCL or granted pursuant thereto shall not be deemed exclusive of any other rights to which the indemnified party may be entitled, and empowers the corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 145 of the DGCL.

 

The Certificate of Incorporation provides that no director of the Company shall be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except to the extent that such exemption from liability or limitation thereof is not permitted under the DGCL as currently in effect or as the same may hereafter be amended. This provision in the Certificate of Incorporation does not eliminate the directors’ fiduciary duties, and in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief will remain available under Delaware law. In addition, each director will be subject to liability for breach of the director’s duty of loyalty to the Company, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under

 

 

Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

 

The Bylaws also provide that the Company shall indemnify and advance expenses to its officers and directors to the fullest extent permitted by applicable law.

 

As permitted by the DGCL, we have entered into indemnification agreements with each of our directors and executive officers. These agreements, among other things, will require us to indemnify each of the Company’s directors and officers to the fullest extent permitted by law and advance expenses to each indemnitee in connection with any proceeding in which indemnification is available.

 

Item 7.

Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.

Exhibits.

 

Exhibit

 

 

Number

 

 

3.1

 

Orthofix Medical Inc. Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on August 1, 2018)

 

 

 

3.2

 

Orthofix Medical Inc. Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on August 1, 2018)

 

 

 

4.1

 

Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on August 1, 2018)

 

 

 

5.1*

 

Opinion of Hogan Lovells US LLP

 

 

 

10.1*

 

Employee Inducement Restricted Stock Unit Agreement for Beth Stevenson

 

23.1*

 

Consent of Ernst & Young LLP, independent registered public accounting firm

 

 

 

23.2*

 

Consent of Ernst & Young LLP, independent auditors

 

 

 

23.3

 

Consent of Hogan Lovells US LLP (included in Exhibit 5.1)

 

 

 

24.1*

 

Power of Attorney (included on signature page hereto)

 

____________________

*  Filed herewith

 

Item 9.

Undertakings.

 

 

(a)

Rule 415 offering.

 

The undersigned Registrant hereby undertakes:

 

 

(1)

To file, during any period in which any offers or sales are being made, a post-effective amendment to this Registration Statement:

 

 

(i)

To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

 

 

 

(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 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

 

(iii)

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;

 

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 with or furnished to the Commission 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.

 

(2)

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.

 

 

(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.

 

 

(4) 

That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

 

 

(i)

If the Registrant is relying on Rule 430B:

 

 

(A) 

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

 

 

 

 

(B) 

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 reg istration 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 prio r 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

 

 

(ii) 

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.

 

 

(5)

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:

 

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:

 

 

(i)

Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;

 

 

(ii)

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;

 

 

(iii)

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

 

 

(iv)

Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

 

 

 

 

(b)

Filings Incorporating Subsequent Exchange Act Documents by Reference.

 

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.

 

 

(c)

Filing of Registration Statement on Form S-8.

 

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 Lewisville, State of Texas, on the 1st day of February, 2019.

 

 

ORTHOFIX MEDICAL INC.

 

 

 

 

By:

/s/ Bradley R. Mason

 

 

 

Bradley R. Mason

 

 

President, Chief Executive Officer and Director

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS that each of the undersigned directors and officers of Orthofix Medical Inc. hereby appoints each of Bradley R. Mason, Douglas C. Rice and Kimberley A. Elting, jointly and severally, his or her true and lawful attorney-in-fact and agent, for him or her and in his or her name, place and stead, with full power to act alone, to sign on his or her 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 or she 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 indicated on the on the 1st day of February, 2019.

 

Name and Signature

 

Title

 

 

 

 

 

/s/ Bradley R. Mason

 

President and Chief Executive Officer (Principal

Executive Officer) and Director

 

Bradley R. Mason

 

 

 

 

 

 

/s/ Douglas C. Rice

 

Chief Financial Officer (Principal Financial and Accounting Officer)

 

Douglas C. Rice

 

 

 

 

 

 

/s/ Ronald A. Matricaria

 

Chairman of the Board of Directors

 

Ronald A. Matricaria

 

 

 

 

 

 

 

/s/ Luke Faulstick

 

Director

 

Luke Faulstick

 

 

 

 

 

 

 

/s/ James F. Hinrichs

 

Director

 

James F. Hinrichs

 

 

 

 

 

 

 

/s/ Alexis V. Lukianov

 

Director

 

Alexis V. Lukianov

 

 

 

 

 

 

 

/s/ Lilly Marks

 

Director

 

Lilly Marks

 

 

 

 

 

 

 

 

 

/s/ Michael E. Paolucci

 

Director

 

Michael E. Paolucci

 

 

 

 

 

 

 

/s/ Maria Sainz

 

Director

 

Maria Sainz

 

 

 

 

 

 

 

/s/ John Sicard

 

Director

 

John Sicard

 

 

 

 

 

 

 

 

 

 

 

Exhibit 5.1

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

T  +1 202 637 5600

F  +1 202 637 5910

www.hoganlovells.com

 

 

 

 

February 1, 2019

 

Board of Directors

Orthofix Medical Inc.

3451 Plano Parkway

Lewisville, Texas 75056

 

Ladies and Gentlemen:

We are acting as counsel to Orthofix Medical Inc., a Delaware corporation (the “ Company ”), in connection with its registration statement on Form S‑8 (the “ Registration Statement ”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Act ”) relating to the proposed public offering of up to 25,478 newly issued shares of the common stock, par value $0.10 per share (the “ Common Stock ”) of the Company (the “ Shares ”), all of which shares are issuable pursuant to the Company’s Employee Inducement Restricted Stock Unit Agreement for Beth Stevenson (the “ Plan ”).  This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S‑K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.

For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on.   This opinion letter is given, and all statements herein are made, in the context of the foregoing.

This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other statutes, rules or regulations.

Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the applicable resolutions of the Board of Directors or a duly authorized committee thereof and in the Plan, the Shares will be validly issued, fully paid, and nonassessable.

 

 

Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia.  “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in:  Alicante   Amsterdam   Baltimore   Beijing   Birmingham   Boston   Brussels   Colorado Springs   Denver   Dubai   Dusseldorf   Frankfurt   Hamburg   Hanoi   Ho Chi Minh City   Hong Kong   Houston   Johannesburg   London   Los Angeles   Luxembourg   Madrid   Mexico City   Miami   Milan   Minneapolis   Monterrey   Moscow   Munich   New York   Northern Virginia   Paris   Perth   Philadelphia   Rio de Janeiro   Rome   San Francisco   São Paulo   Shanghai   Silicon Valley   Singapore   Sydney   Tokyo   Warsaw   Washington DC   Associated offices: Budapest   Jakarta   Shanghai FTZ   Ulaanbaatar   Zagreb.  Business Service Centers:  Johannesburg   Louisville.  For more information see www.hoganlovells.com

 

Board of Directors

Orthofix Medical Inc.

- 2 -

February 1, 2019

 

 

This opinion letter has been prepared for use in connection with the Registration Statement.  We assume no obligation to advise of any changes in the foregoing subsequent to the effective date of the Registration Statement.

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement.  In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933, as amended.

Very truly yours,

 

/s/ Hogan Lovells US LLP

 

HOGAN LOVELLS US LLP

 

 

 

 

 

 

 

Exhibit 10.1

 

Employee Inducement Restricted Stock Unit Grant Agreement for Beth Stevenson

 

This Employee Stock Unit Grant Agreement (the “ Agreement ”) is made this 1st day of February, 2019 (the “ Grant Date ”) between Orthofix Medical Inc., a Delaware corporation (the “ Company ”), and Beth Stevenson (the “ Award Recipient ”).  

WHEREAS, as an inducement for the Award Recipient to accept employment with the Company or one of its subsidiaries, the Company desires to afford the Award Recipient the opportunity to acquire shares of Stock on the terms and conditions set forth herein;

WHEREAS, this Award, as defined below, is intended to be granted pursuant to the exception for inducement grants pursuant to Nasdaq Listing Rule 5635(c)(4) and therefore is not granted pursuant to the Amended and Restated Orthofix Medical Inc. 2012 Long-Term Incentive Plan (the “ Plan ”);

WHEREAS, though this Award is not granted pursuant to the Plan, certain capitalized terms used not but otherwise defined herein shall have the meanings attributed thereto in the Plan and the provisions of the Plan are incorporated in this Agreement in their entirety.

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 Units .

(a) Number of Shares/Vesting .  The Company hereby grants to the Award Recipient, on the Grant Date, Restricted Stock Units relating to 25,478 shares of Stock, subject to the vesting schedule and terms and conditions set forth below (the “ Award ” ).  Subject to earlier termination in accordance with the Plan or this Agreement and the terms and conditions herein, Restricted Stock Units granted under this Agreement shall vest with respect to 33-1/3% of the shares of Stock covered hereby on each of the first, second and third anniversaries of the Grant Date (each, a “ Vesting Date ”) provided that Award Recipient continues in Service and has not had a Separation from Service on each such date; provided further, however, for the avoidance of doubt, that there shall be no proportionate or partial vesting in the periods prior to or between each Vesting Date unless otherwise provided under this Agreement or the Plan; provided further, that for the avoidance of doubt, following Award Recipient’s Separation from Service, no additional Restricted Stock Units shall vest.

(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 Stock .  The shares of Stock underlying the Award Recipient’s vested Restricted Stock Units will be issued as soon as practicable following the earlier of (i) the date that the Restricted Stock Units vest pursuant to the vesting schedule, or (ii) the date of the Award Recipient’s termination of Service, but in no event later than March 15 of the calendar year that immediately follows the first of such events (the date or dates such shares of Stock are delivered, the “ Settlement Date ”).  The issuance of shares of Stock under this grant shall be evidenced in such a manner as the Company, in its discretion, will deem appropriate, including, without limitation, book-entry registration or issuance of one or more stock certificates.  On the Settlement Date, the Company shall also deliver to the Award Recipient the number of additional shares of Stock, the number of any other securities of the Company and the amount of any other property (in the case of cash dividends, assuming such dividends had been reinvested in shares of Stock as of the ex-dividend date thereof), in each case that the Company distributed per share of Stock to holders generally during the period commencing on the Grant Date and ending on the applicable Settlement Date, multiplied by the number of shares of Stock that are being delivered to the Award Recipient under this paragraph, without interest, and less any tax withholding amount applicable to such distribution.  To the extent that the Restricted Stock Units are forfeited prior to vesting, the right to receive such distributions shall also be forfeited.

 

 

(d) Shareholder Rights .  The Award Recipient has no rights as a shareholder with respect to the shares of Stock underlying the Restricted Stock Units unless and until the Stock relating to the Restricted Stock Units has been delivered.  No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before the certificate is issued (or appropriate book entry is made), ex cept as described above.  

2. Incorporation of Plan . The Award Recipient acknowledges receipt of the Plan, a copy of which is annexed hereto, and represents that he is familiar with its terms and provisions and hereby accepts this grant of Restricted Stock Units 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 .  To the extent not yet vested, the Restricted Stock Units may not be sold, transferred, assigned, transferred, pledged, hypothecated, or otherwise encumbered or disposed of, whether by operation of law or otherwise, nor may the Restricted Stock Units be made subject to execution, attachment, or similar process.  If the Award Recipient attempts to do any of these things, he will immediately and automatically forfeit the Restricted Stock Units.

4. Termination of Service; Change in Control .

(a) Certain Terminations of Service .  If, prior to vesting, the Award Recipient’s Service is terminated for any reason other than (i) death, (ii) Disability, or (iii) termination by the Company without Cause, the unvested portion of the Restricted Stock Units shall be forfeited by the Award Recipient and cancelled by the Company as of the date of the Award Recipient’s termination of Service, and the Award Recipient shall have no further right or interest therein unless the Committee in its sole discretion shall determine otherwise.

(b) Termination of Service for Death or Disability . If the Award Recipient’s Service terminates by reason of death or Disability, the Restricted Stock Units shall automatically vest in full as of the date of the Award Recipient’s termination of Service.

(c) Termination of Service by Company without Cause . If the Award Recipient’s Service is terminated by the Company without Cause, the Restricted Stock Units shall automatically vest in full as of the date of the Award Recipient’s termination of Service.

(d) Certain Additional Corporate Transaction Circumstances . In the event that the unvested portion of this Award is assumed or continued, or substituted for new restricted stock units or another equity-based Award of a successor entity, or parent or subsidiary thereof (with appropriate adjustments as to the number of shares), in each case upon the consummation of any Corporate Transaction, and the employment of the Award Recipient with the Company or an Affiliate is terminated within 24 months following the consummation of such Corporate Transaction by the employer without Cause, the unvested portion of the Restricted Stock Units shall be fully vested on the date of such termination of employment with the Company.   In the event a Corporate Transaction occurs in which this Award is not being assumed, continued or substituted (as contemplated by the preceding sentence), the unvested portion of the Award shall be deemed to have vested and the shares of Stock subject thereto shall be delivered immediately prior to the consummation of such Corporate Transaction.

5. Withholding .

The Company shall have the right to require the Award Recipient to remit to the Company any and all amounts sufficient to satisfy any withholding or other taxes that may be due as a result of the issuance of shares of Stock subject to the Restricted Stock Units.  At the time of the Settlement Date (or, in the event that tax withholding is required as of an earlier date, then such earlier date), the Award Recipient shall pay in cash to the Company any amount that the Company may reasonably determine to be necessary to satisfy such withholding or other tax obligation. The Company may permit the Award Recipient to satisfy, in whole or in part, such obligation to remit withholding or other taxes, (a) by directing the Company to withhold shares of Stock that would otherwise become

 

 

vested, (b) by delivering to the Company shares of Stock already owned by the Award Recipient and not then subject to any repurchase, forfeiture, unfulfilled vesting, or similar requirements, or (c) by permitting or requiring the Award Recipient to enter into a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a “ FINRA Dealer ”) whereby Award Recipient irrevocably elects to sell a portion of the shares of Stock to b e delivered in connection with the Restricted Stock Units to satisfy withholding obligations and whereby the FINRA Dealer irrevocably commits to forward the proceeds necessary to satisfy the withholding obligations directly to the Company or any Affiliate in each case pursuant to such rules as the Committee may establish from time to time.  The Company shall also have the right to deduct from all cash payments made pursuant to, or in connection with, the Restricted Stock Units, the federal, state, or local taxes required to be withheld with respect to such payments.  The maximum number of shares of Stock that may be withheld to satisfy any federal, state, or local tax requirements may not exceed such number of shares of Stock having a Fair Market Value equal to the minimum statutory amount required by the Company to be withheld and paid to any such federal, state, or local taxing authority with respect to such vesting or payment; provided, however , for so long as Accounting Standards Update 2016-09 or a simil ar rule remains in effect, the Committee has full discretion to choose, or to allow the Award Recipient to elect, to withhold a number of shares of Stock having an aggregate Fair Market Value that is greater than the applicable minimum required statutory w ithholding obligation (but such withholding may in no event be in excess of the maximum required statutory withholding obligation in such Award Recipient’s relevant tax jurisdiction).  

6. No Employment or Other Rights .  This Award does not confer upon the Award Recipient any right to be continued in the employment of, or otherwise provide Services to, the Company or any Subsidiary or other affiliate thereof, or interfere with or limit in any way the right of the Company or any Subsidiary or other affiliate thereof to terminate such Award Recipient’s employment or other service relationship at any time.  For purposes of this Agreement only, the term “employment” shall include circumstances under which Award Recipient provides consulting or other Services to the Company or any of its Subsidiaries as an independent contractor, but such Award Recipient is not, nor shall be considered, an employee; provided, however, nothing in this Section 6 or this Agreement shall create an employment relationship between such person and the Company or its applicable Subsidiary, as the usages described in this Section are for convenience only.

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

8. Section 409A .   The grant of Restricted Stock Units under this Agreement is intended to comply with Code Section 409A to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Code Section 409A.  Notwithstanding anything to the contrary in the Plan or this Agreement, neither the Company, its Affiliates, the Board, nor the Committee will have any obligation to take any action to prevent the assessment of any excise tax or penalty on Award Recipient under Code Section 409A, and neither the Company, its Affiliates, the Board, nor the Committee will have any liability to Award Recipient for such tax or penalty.  For purposes of this Agreement, a termination of Service occurs only upon an event that would be a Separation from Service within the meaning of Section 409A.  If, at the time of Award Recipient’s Separation from Service, (1) Award Recipient is a “specified employee” within the meaning of Code Section 409A, and (2) the Company makes a good faith determination that an amount payable on account of Award Recipient’s Separation from Service constitutes deferred compensation (within the meaning of Code Section 409A), the payment of which is required to be delayed pursuant to the six (6)-month delay rule set forth in Code Section 409A to avoid taxes or penalties under Code Section 409A (the “ Delay Period ”), then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after the Delay Period (or upon Award Recipient’s death, if earlier), without interest.  Each installment of Restricted Stock Units that vest under this Agreement (if there is more than one installment) will be considered one of a series of separate payments for purposes of Code Section 409A.  

9. Miscellaneous Provisions .

 

 

(a) Applicable Law .  The validity, construction, interpretation and effe ct of this instrument will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to the conflicts of law 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 Units as set forth herein from time to time, in any manner consistent with the provisions of the Plan, and any alteration or amendment of the terms of this grant of Restricted Stock Units 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 Units in any manner which is consistent with the Plan.

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

(g) Entire Agreement .  This Agreement and the Plan constitute the entire agreement between the Award Recipient and the Company regarding the grant of Restricted Stock Units and supersede all prior arrangements or understandings (whether oral or written and whether express or implied) with respect thereto.

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

  “ Restricted Stock Units” means a bookkeeping entry representing the equivalent of one (1) share of common stock, par value $0.10 per share, of the Company, awarded to the Award Recipient pursuant to this Agreement.

“ Separation from Service” shall have the meaning given such term in Code Section 409A.

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EXECUTED on the date first written above.

 

 

 

 

 

 

 

 

COMPANY:

 

ORTHOFIX MEDICAL INC.

 

 

 

 

 

By:  

/s/     BRADLEY R. MASON

 

 

Name:  Bradley R. Mason

 

 

Title:  President and Chief Executive Officer, Director

 

 

 

AWARD RECIPIENT:

 

 

 

 

By:  

 

 

 

Name: Beth Stevenson

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Employee Inducement Restricted Stock Unit Agreement for Beth Stevenson of Orthofix Medical Inc. (formerly Orthofix International N.V.) of our reports dated February 26, 2018, with respect to the consolidated financial statements of Orthofix Medical Inc. (formerly Orthofix International N.V.) and the effectiveness of internal control over financial reporting of Orthofix Medical Inc. (formerly Orthofix International N.V.) included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

 

Dallas, Texas

February 1, 2019

 

 

 

Exhibit 23.2

 

Consent of Independent Auditors

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Employee Inducement Restricted Stock Unit Agreement for Beth Stevenson of Orthofix Medical Inc. (formerly Orthofix International N.V.) of our report dated April 30, 2018, with respect to the consolidated financial statements of Spinal Kinetics, Inc. and its subsidiaries for the year ended December 31, 2017, included in Orthofix Medical Inc.’s (formerly Orthofix International N.V.) Current Report (Form 8-K) filed with the Securities and Exchange Commission on May 15, 2018.

 

/s/ Ernst & Young LLP

 

Dallas, Texas

February 1, 2019