FORM S-8
GARMIN LTD.
(Exact name of registrant as specified in its charter)
CAYMAN ISLANDS 98-0229227
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
QUEENSGATE HOUSE
P.O. BOX 30464SMB
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GARMIN LTD. EMPLOYEE STOCK PURCHASE PLAN
GARMIN LTD. 2000 EQUITY INCENTIVE PLAN
GARMIN LTD. NON-EMPLOYEE DIRECTORS' OPTION PLAN
(Full title of plans)
ANDREW R. ETKIND, ESQ.
C/O GARMIN INTERNATIONAL, INC.
1200 EAST 151ST STREET
OLATHE, KANSAS 66062
(913) 397-8200
(Name, address and telephone number of agent for service)
WITH A COPY TO:
JOHN F. MARVIN, ESQ.
SONNENSCHEIN NATH & ROSENTHAL
4520 MAIN STREET
KANSAS CITY, MISSOURI 64111
(816) 932-4400
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee.
(3) Such common shares to be issued under the Garmin Ltd. Employee Stock Purchase Plan.
(4) Such common shares to be issued under the Garmin Ltd. 2000 Equity Incentive Plan.
(5) Such common shares to be issued under the Garmin Ltd. Non-Employee Directors' Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Garmin Ltd. (the "Registrant") with the Securities and Exchange Commission ("SEC") are hereby incorporated by reference in this registration statement and made a part hereof:
(a) Registrant's prospectus dated December 8, 2000 and filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933 and which contains audited financial statements for the Registrant's latest fiscal year; and
(b) Registrant's Registration Statement on Form 8-A (Registration No. 0-31983), containing a description of Registrant's common shares, par value $0.01 per share (the "Common Shares").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
Common Shares registered hereby has been sold or which deregisters such Common
Shares 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 filing of
such documents (such documents, and the documents listed above, being
hereinafter referred to as "Incorporated Documents"). Any statement contained in
an Incorporated Document 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 Incorporated Document 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.
The Common Shares of the Registrant are registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Cayman Islands law does not limit the extent to which a company's articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Article 152 of our Articles of Association provides for indemnification, to the fullest extent permitted by law, of officers and directors for expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in their capacities as such, and advancement of expenses of defending any such action, suit or proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.1 Memorandum of Association*
4.2 Articles of Association (as amended)*
4.3 Specimen share certificate*
4.4 Garmin Ltd. Employee Stock Purchase Plan*
4.5 Garmin Ltd. 2000 Equity Incentive Plan*
4.6 Garmin Ltd. 2000 Non-Employee Directors' Option Plan*
5.1 Opinion of Maples and Calder, Cayman Islands counsel to the Registrant,
as to the legality of the shares
23.1 Consent of Ernst & Young LLP
23.2 Consent of Maples and Calder (included in Exhibit 5.1)
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* Filed as an exhibit to Registrant's registration statement on Form S-1 (File No. 333-45514) and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered hereby which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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 provisions of the restated certificate of incorporation and by-laws of the Registrant and the provisions of the Delaware law described under Item 6 above, the Registrant has been advised 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. 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 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, County of Johnson, State of Kansas, on the 7th day of December, 2000.
GARMIN LTD.
By: /s/ MIN H. KAO
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Min H. Kao
Co-Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Min H. Kao, Gary L. Burrell and Andrew R. Etkind, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments, to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the dates indicated.
SIGNATURE TITLE DATE
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/S/ MIN H. KAO Co-Chairman; Co-Chief Executive Officer December 7, 2000
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Min H. Kao (Co-Principal Executive Officer)
/S/ GARY L. BURRELL Co-Chairman; Co-Chief Executive Officer December 7, 2000
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Gary L. Burrell (Co-Principal Executive Officer)
/S/ KEVIN RAUCKMAN Chief Financial Officer December 7, 2000
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Kevin Rauckman (Principal Financial Officer and Principal
Accounting Officer)
/S/ RUEY-JENG KAO Director December 7, 2000
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Ruey-Jeng Kao
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EXHIBIT 5.1
[LETTERHEAD OF MAPLES AND CALDER]
7th December, 2000
Garmin Ltd.
P.O. Box 309
George Town
Grand Cayman
Cayman Islands
Dear Sirs:
At your request, we have examined the Registration Statement on Form S-8 being filed contemporaneously herewith by Garmin Ltd., a Cayman Islands company (the "Company"), with the Securities and Exchange Commission (the "Registration Statement"), relating to the registration under the Securities Act of 1933, as amended, of (i)1,000,000 of the Company's Common Shares, US$0.01 par value per share ("Common Shares"), to be issued under the Garmin Ltd. Employee Stock Purchase Plan, (ii) 3,500,000 of the Company's Common Shares to be issued under the Garmin Ltd. 2000 Equity Incentive Plan and (iii) 50,000 of the Company's Common Shares under the Garmin Ltd. Non-Employee Directors' Option Plan. The Garmin Ltd. Employee Stock Purchase Plan, the Garmin Ltd. 2000 Equity Incentive Plan and the Garmin Ltd. Non-Employee Directors' Option Plan are hereinafter referred to as the "Plans", and the Company's Common Shares to be issued under the Plans are referred to as the "Shares".
As counsel to the Company, we have examined the corporate authorisations taken by the Company in connection with the Plans and the issue of the Shares by the Company and a certificate of an officer of the Company and have assumed that the Shares will be issued in accordance with the Plans and the resolutions authorising their issue.
It is our opinion that the Shares to be issued by the Company have been duly and validly authorized, and when issued, sold and paid for in the manner described in the
Plans and in accordance with the resolutions adopted by the Board of Directors of the Company and when appropriate entries have been made in the Register of Members of the Company, will be legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement, the prospectus constituting a part thereof and any amendments thereto.
Yours faithfully,
/s/ Maples and Calder Maples and Calder |
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333- ) pertaining to the Employee Stock Purchase Plan, the 2000 Equity Incentive Plan, and the Non-Employee Directors' Option Plan of Garmin Ltd. of our reports dated February 26, 2000 (except for Note 1, as to which the date is September 22, 2000, and Note 13, as to which the date is November 6, 2000), with respect to the consolidated financial statements and schedule of Garmin Ltd., included in the Registration Statement (Form S-1 No. 333-45514), filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Kansas City, Missouri
December 4, 2000
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