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
|
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)
|
(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
|
|
Opinion
of KPMG AG, Swiss counsel to the registrant, regarding the legality of the
securities being registered
|
|
|
|
5.2
|
|
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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KPMG
AG
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Legal
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Badenerstrasse
172
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P.O.
Box
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Telephone
+41 44 249 23 18
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CH-8004
Zurich
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CH-8026
Zurich
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Fax
+41 44 249 22 36
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Internet
www.kpmglegal.ch
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Garmin
Ltd.
|
Contact
|
Jörg
Kilchmann
|
Vorstadt
40/42
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Phone
|
+41
44 249 45 10
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8200
Schaffhausen
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e-mail
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jkilchmann@kpmg.com
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|
Our
reference
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Kj/Sig
|
Zurich,
June 28, 2010
Ladies
and Gentlemen,
We have
acted and are acting as Swiss counsel to Garmin Ltd., a company organized under
the laws of Switzerland (the “Company”), in connection with the Post-Effective
Amendment No. 1 (“Post-Effective Amendment”) to the Registration Statement on
Form S-8 (Registration No. 333-149450) to be filed with the United States
Securities and Exchange Commission (“SEC”) on the date hereof under the
Securities Act of 1933 (“Act”) with respect to the registered shares, par value
CHF 10.00 per share of the Company (the “Registered Shares”) that may be
delivered pursuant to the Garmin International, Inc. 401(k) and Pension Plan
(the "Plan") assumed by the Company in connection with a change of the place of
incorporation of the publicly traded parent company of the Garmin group of
companies from the Cayman Islands to Switzerland. As such counsel, we
have been requested to give our opinion as to certain legal matters under Swiss
law.
In acting
as such counsel, we have examined:
(a) the
Post-Effective Amendment to the Registration Statement to be filed by the
Company with the SEC;
(b) the
Scheme of Arrangement between Garmin Ltd., a Cayman Islands company ("Garmin
Cayman"), the Company, and the Scheme Shareholders (as such term is defined in
the Scheme of Arrangement);
(c) the
Transaction Agreement between the Company and Garmin Cayman, dated May 21,
2010;
(d) the
court order of the Grand Court of the Cayman Islands of June 4, 2010 sanctioning
the Scheme of Arrangement;
(e) a
copy of the current version of the articles of association and organizational
regulations of the Company;
(f)
a copy of the board resolutions adopted by the Board of
Directors of the Company on May 27, 2010, regarding the approval of the
Transaction Agreement, which was concluded between Garmin Cayman and the Company
concerning the Redomestication;
(g) a
copy of the resolutions of the general meeting of the shareholders of the
Company and of the board resolution adopted by the Board of Directors of the
Company on June 27, 2010 regarding the authorization of conditional capital for
the issuance of Registered Shares pursuant to the Plan; and
(h)
an opinion back-up certificate dated June 28, 2010 and
signed by Andrew R. Etkind, Vice President, General Counsel and Secretary of the
Company.
Except as
stated above, we have not, for the purposes of this opinion, examined any other
contract, instrument or other document affecting or relating to the above
mentioned documents.
For the
purpose of giving this opinion we have caused to be made in the Commercial
Register of the Canton of Schaffhausen on June 28, 2010 a company search for any
pending corporate actions with respect to the Company, to the exclusion of any
other searches or inquiries.
In giving
this opinion, we have assumed:
(a) the
genuineness of all signatures;
(b) the
authenticity and completeness of all documents submitted to us as
originals;
(c) the
conformity to original documents of all documents submitted to us as certified
copies or photocopies and the authenticity and completeness of the original
documents where certified copies or photocopies have been
submitted;
(d) the
conformity to original documents and the completeness of all documents received
by us by facsimile transmission and the authenticity of the originals of such
documents;
(e) the
due authority of the parties authenticating such documents;
(f)
the legal capacity of all natural persons;
(g) that
all corporate actions required to be taken for the authorization and issue of
the Registered Shares have been validly and sufficiently taken by the board of
directors or the shareholders of the Company, and that such corporate actions
have not been amended, cancelled or revoked;
(h) that
no laws other than those of Switzerland would affect any of the conclusions
stated in this opinion; and
(i)
that all certificates and other documents which we have
examined or on which we have expressed reliance remain accurate, in force and
unrevoked, and that no additional matters would have been disclosed by a company
search at the Commercial Register of the Canton of Schaffhausen if carried out
since the carrying out of the searches referred to above.
In
rendering our opinion, we have relied, to the extent we deem necessary and
proper, on warranties and representations as to certain factual matters
contained in the above mentioned documents. We have no actual
knowledge of any material inaccuracies in any of the facts stated in such
documents.
Based on
the foregoing, and subject to the limitations and qualifications made herein, we
are of the following opinion:
(a) The
Company is a corporation duly incorporated and validly existing under the laws
of Switzerland with all requisite corporate power and authority to enter into,
to perform and to conduct its business as described in its articles of
association.
(b) The
Company's share capital registered in the Commercial Register of the Canton of
Schaffhausen amounts to CHF [2,106,700,000] divided into [210,670,000]
registered shares. The registered shares have been validly issued and
fully paid and are non-assessable (
“keine
Nachschusspflicht”)
.
(c) The
Registered Shares that may be issued from the Company's conditional share
capital, if and when such Registered Shares are issued pursuant to the Plan, and
after the issue price which shall be at least equal to the nominal amount for
such Registered Shares has been paid-up in cash, will be validly issued, fully
paid and non-assessable (
“keine
Nachschusspflicht”)
.
This
opinion is subject to the following qualifications:
(a) A
company search is not capable of revealing whether a winding-up petition has
been presented; a notice of a winding-up order or of the appointment of a
receiver may not be filed immediately at the Commercial Register; in addition,
there may be administrative delays at the Commercial Register after submission
of notices for filing.
(b) The
opinions expressed in the present letter are only made at the date thereof and
cannot be relied upon for events, changes in law or new enactments of law which
occur subsequent to the issuance of this letter. We undertake no
obligation to update such opinion in connection with events occurring or coming
to our attention after the date hereof.
(c) Except
as explicitly stated herein, we express no opinion in relation to the factual
nature of any undertaking, representation or warranty contained in any of the
documents reviewed, nor upon the commercial terms of the transactions
contemplated thereby.
(d) In
rendering the foregoing opinion we are opining on the matters hereinafter
referred to only insofar as they are governed by the laws of Switzerland as
currently in effect. We have made no investigation of and express no
opinion in relation to the laws of any jurisdiction other than
Switzerland.
In this
opinion, Swiss legal concepts are expressed in English terms and not in their
original German, French or Italian terms. The concepts concerned may
not be identical to the concepts described by the same English terms as they
exist under the laws of other jurisdictions. This opinion may,
therefore, only be relied upon under the express condition that any issues of
interpretation or liability arising thereunder will be governed by Swiss law and
be brought before a Swiss court.
We hereby
consent to the filing of this opinion as an exhibit to the Post-Effective
Amendment. In giving this consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the SEC promulgated thereunder or Item 509 of
Regulation S-K.
This
opinion is issued solely for the purposes of the filing of the Post-Effective
Amendment and the issuance of the Registered Shares by the Company as described
in the Post-Effective Amendment and is not to be relied upon in respect of any
other matter.
Yours
faithfully
KPMG
AG
Jörg
Kilchmann
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Denise
Brügger
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Attorney-at-Law
|
Attorney-at-Law
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