Unassociated Document
As filed
with the Securities and Exchange Commission on June 28, 2010
Registration
No. 333-149450
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1 TO
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
GARMIN
LTD.
(Exact
name of registrant as specified in its charter)
Switzerland
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98-0229227
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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
No.)
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Vorstadt
40/42
8200
Schaffhausen
Switzerland
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N/A
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(Address
of principal executive offices)
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(Zip
Code)
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Garmin
International, Inc. 401(k) and Pension Plan
(Full
title of the plan)
Andrew
R. Etkind, Esq.
c/o
Garmin International, Inc.
1200
East 151st Street
Olathe,
Kansas 66062
(Name
and address of agent for service)
(913)
397-8200
(Telephone
number, including area code, of agent for service)
Copy
to:
John
A. Granda
Stinson
Morrison Hecker LLP
1201
Walnut Street
Kansas
City, Missouri 64106
(816)
842-8600
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.
Large
accelerated filer
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x
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Accelerated
filer ¨
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Non-accelerated
filer
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¨ (Do not check if
a smaller reporting company)
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Smaller
reporting company ¨
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EXPLANATORY
NOTE
This
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (File No.
333-149450) (as amended, this “Registration Statement”) is being filed pursuant
to Rule 414 of the Securities Act of 1933, as amended (the “Securities Act”), by
Garmin Ltd., a Swiss corporation (the "Company"), as the successor issuer to
Garmin Ltd., a Cayman Islands company ("Garmin Cayman"), pursuant to a share
exchange transaction effected by a scheme of arrangement under Cayman Islands
law. On June 27, 2010, each previously outstanding common share of
Garmin Cayman, par value $0.005 per share, was exchanged for one registered
share of the Company, par value CHF 10.00 per share. We refer to the
transactions effecting this exchange collectively as the
Redomestication. As a result of the Redomestication, which became
effective on June 27, 2010, Garmin Cayman is now a direct, wholly-owned
subsidiary of the Company.
In
connection with the Redomestication, the Company has assumed Garmin Cayman's
obligations under the Garmin International, Inc. 401(k) and Pension Plan (the
“Plan”), including the obligation to deliver shares pursuant to the terms of the
Plan. Consequently, the registered shares of the Company will
henceforth be issuable under the Plan in lieu of the common shares of Garmin
Cayman. The Company expressly adopts this Registration Statement as
its own registration statement for all purposes under the Securities Act and the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). The
securities registered under the Registration Statement may include newly issued
securities or securities held in treasury by the Company.
Part
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation
of Documents by Reference.
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The Securities and Exchange Commission
("SEC") allows the Company to "incorporate by reference" the information that it
files with the SEC, which means:
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·
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Incorporated
documents are considered part of this registration
statement;
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·
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We
can disclose important information by referring the reader to these
documents, which may be documents that we previously have filed with the
SEC or that we will file with the SEC in the future;
and
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·
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Information
that we file with the SEC will automatically update and supersede this
registration statement and any previously incorporated
information.
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The
Company incorporates by reference the documents or portions of documents listed
below which were filed with the SEC under the Exchange Act:
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·
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Garmin
Cayman's Annual Report on Form 10-K for the fiscal year ended December 26,
2009, filed with the SEC on February 24,
2010;
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·
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The
Plan's Annual Report on Form 11-K for the fiscal year ended December 31,
2009 filed with the SEC on June 24,
2010;
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·
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Garmin
Cayman's Quarterly Report on Form 10-Q for the quarter ended March 27,
2010, filed with the SEC on May 5,
2010;
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·
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Garmin
Cayman's Current Reports on Form 8-K filed with the SEC on February 4,
2010, March 17, 2010, April 5, 2010, April 9, 2010, April 28, 2010, May
20, 2010, June 4, 2010 and June 21,
2010;
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·
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The
Company's Current Report on Form 8-K filed with the SEC on June 28, 2010;
and
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·
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The
description of the Company's registered shares contained in its
Registration Statement on Form 8-A, as amended on June 28, 2010 (File No.
000-31983).
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The
Company also incorporates by reference filings with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, that are filed with the SEC after
the date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or deregisters all securities then remaining unsold.
Notwithstanding
the foregoing, unless specifically stated to the contrary, none of the
information that the Company discloses under Items 2.01 or 7.01 of any Current
Report on Form 8-K that it may from time to time furnish to the SEC will be
incorporated by reference into, or otherwise included in, 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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None.
Item
6.
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Indemnification
of Directors and Officers.
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Although
this area of law is unsettled in Switzerland, the Company believes, based on the
interpretation of leading Swiss legal scholars, which is a persuasive authority
in Switzerland, that, under Swiss law, the Company may indemnify the members of
its board of directors and its officers unless the indemnification results from
a breach of their duties that constitutes gross negligence or intentional breach
of duty of the member of the board of directors or officer
concerned. The Company’s articles of association make indemnification
of members of the board of directors and officers and advancement of expenses to
defend claims against members of the board of directors and officers mandatory
on the part of the Company to the fullest extent allowed by Swiss
law. Swiss law permits the Company, or each member of the board of
directors or officer individually, to purchase and maintain insurance on behalf
of such members of the board of directors and officers. The Company
plans to obtain such insurance from one or more third party
insurers.
Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
Exhibit
Number
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Description
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3.1
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Articles
of Association of Garmin Ltd. (filed as Exhibit 3.1 to the Company's Form
8-K filed on June 28, 2010 and incorporated herein by
reference)
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5.1
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Opinion
of KPMG AG, Swiss counsel to the registrant, regarding the legality of the
securities being registered
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5.2
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Favorable
Opinion Letter, dated February 27, 2002, issued by the Internal Revenue
Service to T. Rowe Price Trust Company, the prototype plan sponsor of the
form of plan document used for the Garmin International, Inc. 401(k) and
Pension Plan (filed as Exhibit 5.2 to the Company's Registration Statement
on Form S-8, Registration No. 333-124818, filed on May 11, 2005 and
incorporated herein by reference)
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23.1
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Consent
of Ernst & Young LLP
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23.2
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Consent
of KPMG AG (included in Exhibit 5.1)
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23.3
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Consent
of Mayer Hoffman McCann P.C.
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24.1
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Power
of Attorney (included on signature page)
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99.1
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Garmin
International, Inc. 401(k) and Pension Plan (f/k/a Garmin International,
Inc. Savings and Profit Sharing Plan), as amended and restated (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-8,
Registration No. 333-124818, filed on May 11, 2005 and incorporated herein
by reference)
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(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which 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;
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; 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;
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
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in 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)
Insofar as indemnification for liabilities arising under the Securities Act 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 Act 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 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
Olathe, State of Kansas, on June 28, 2010.
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GARMIN
LTD.
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By:
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Min
H. Kao
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Chief
Executive Officer
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POWER OF
ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each individual whose signature appears below
constitutes and appoints Min H. Kao, Kevin Rauckman and Andrew R. Etkind and
each of them, the undersigned's true and lawful attorneys-in-fact and agents
with full power of substitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
sign any registration statement for the same offering covered by this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, as amended, and all
post-effective amendments thereto, and to file the same, with all exhibits
thereto and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
Signature
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Title
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Date
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/s/
Min H. Kao
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Chairman
of the Board of Directors, Chief Executive
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June
28, 2010
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Min
H. Kao
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Officer
and Director (principal executive officer)
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/s/
Kevin Rauckman
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Chief
Financial Officer and Treasurer (principal
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June
28, 2010
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Kevin
Rauckman
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accounting
and financial officer)
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/s/
Charles W. Peffer
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Director
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June
28, 2010
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Charles
W. Peffer
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/s/
Clifton A. Pemble
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Director
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June
28, 2010
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Clifton
A. Pemble
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/s/
Gene M. Betts
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Director
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June
28, 2010
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Gene
M. Betts
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/s/
Donald H. Eller
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Director
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June
28, 2010
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Donald
H. Eller
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/s/
Thomas P. Poberezny
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Director
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June
28, 2010
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Thomas
P. Poberezny
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Exhibit
Index
Exhibit
Number
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Description
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3.1
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Articles
of Association of Garmin Ltd. (filed as Exhibit 3.1 to the Company's Form
8-K filed on June 28, 2010 and incorporated herein by
reference)
|
|
|
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5.1
|
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Opinion
of KPMG AG, Swiss counsel to the registrant, regarding the legality of the
securities being registered
|
|
|
|
5.2
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|
Favorable
Opinion Letter, dated February 27, 2002, issued by the Internal Revenue
Service to T. Rowe Price Trust Company, the prototype plan sponsor of the
form of plan document used for the Garmin International, Inc. 401(k) and
Pension Plan (filed as Exhibit 5.2 to the Company's Registration Statement
on Form S-8, Registration No. 333-124818, filed on May 11, 2005 and
incorporated herein by reference)
|
|
|
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23.1
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Consent
of Ernst & Young LLP
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|
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23.2
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Consent
of KPMG AG (included in Exhibit 5.1)
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23.3
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Consent
of Mayer Hoffman McCann P.C.
|
|
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24.1
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Power
of Attorney (included on signature page)
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|
|
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99.1
|
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Garmin
International, Inc. 401(k) and Pension Plan (f/k/a Garmin International,
Inc. Savings and Profit Sharing Plan), as amended and restated (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-8,
Registration No. 333-124818, filed on May 11, 2005 and incorporated herein
by reference)
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