As filed with the Securities and Exchange Commission on June 7, 2013

Registration No. 333-___________

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

GARMIN LTD.

(Exact name of registrant as specified in its charter)

 

Switzerland 98-0229227
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)

 

Mühlentalstrasse 2

8200 Schaffhausen

Switzerland
+41 52 630 1600

(Address and Telephone Number of Principal Executive Offices)

 

Garmin Ltd. 2005 Equity Incentive Plan

(Full title of the plan)

Joshua H. Maxfield, 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)

Copy to :

Victoria R. Westerhaus, Esq.

Stinson Morrison Hecker LLP

1201 Walnut Street, Suite 2900
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   Accelerated filer ¨
       
Non-accelerated filer ¨ (Do not check if a smaller reporting company) Smaller reporting company ¨

 

 
 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered Amount to be registered(1) Maximum offering price per share (2) Proposed maximum aggregate offering price Amount of registration fee
Registered Shares, CHF 10.00 par value 4,500,000 $35.015 $157,567,500.00 $21,492.21

 

(1) Pursuant to Rule 416, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
(2) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and (h)(1) of the Securities Act of 1933, based on the average of the high and low prices of the Registered Shares as quoted on The NASDAQ Global Select Market on June 3, 2013.

 

 

 

EXPLANATORY NOTE

 

Pursuant to a registration statement on Form S-8 filed by Garmin Ltd., a Cayman Islands company ("Garmin Cayman"), with the United States Securities and Exchange Commission (the "SEC") on June 10, 2005 (Registration No. 333-125717), Garmin Cayman registered 5,000,000 common shares to be awarded to employees of Garmin Cayman pursuant to the Garmin Ltd. 2005 Equity Incentive Plan (the "Plan"). On August 15, 2006, Garmin Cayman effected a two-for-one stock split of its common shares (the "Stock Split"). Pursuant to footnote number one of Registration Statement No. 333-125717, 5,000,000 common shares were automatically registered under such registration statement upon consummation of the Stock Split. On June 27, 2010, each previously outstanding common share of Garmin Cayman was exchanged for one registered share of Garmin Ltd., a Swiss company (the "Company"), par value CHF 10.00 per share (the "Redomestication").

 

In connection with the Redomestication, the Company assumed the Plan, including the obligation to deliver shares under the Plan, for the outstanding awards issued thereunder. On June 28, 2010 the Company filed Post-Effective Amendment No. 1 to Form S-8 to adopt Registration Statement No. 333-125717 (filed June 10, 2005) as its own registration statement for all purposes under the Securities Act of 1933 and the Securities Exchange Act of 1934.

 

This registration statement is being filed to register 4,500,000 additional shares issuable under the Plan. Pursuant to General Instruction E to Form S-8, all of the contents of Registration Statement No. 333-125717 (filed June 10, 2005), as amended, are hereby incorporated by reference into this registration statement to the extent not modified or superseded by any subsequently filed document that is incorporated herein or therein.

 

The documents containing the information specified in "Item 1. Plan Information” and “Item 2. Registrant Information and Employee Plan Annual Information" of Form S-8 will be sent or given to participants of the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act"). Such documents are not required to be, and are not, filed with the SEC either as part of this registration statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

 
 

 

Part II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 6. Indemnification of Directors and Officers

 

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. Article 28 of 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 has obtained such insurance from third party insurers.

 

Item 8. Exhibits

 

The following Exhibits are filed as a part of this registration statement

 

Exhibit
Number
Description
   
3.1 Articles of Association of Garmin Ltd. (incorporated by reference from Exhibit 3.1 of the Company's Form 8-K filed on June 28, 2010)
   
5.1 Opinion of KPMG AG regarding the legality of the securities being registered
   
23.1 Consent of Ernst & Young LLP
   
23.2 Consent of KPMG AG (included in Exhibit 5.1)
   
24.1 Power of Attorney (included on signature page)
   
99.1 Garmin Ltd. 2005 Equity Incentive Plan (incorporated by reference from Schedule 1 to the Company's Definitive Proxy Statement filed with the SEC on April 22, 2013)

 

 
 

 

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 7, 2013.

 

  GARMIN LTD.
     
  By: /s/ Clifton A. Pemble
    Name: Clifton A. Pemble
    Title:   President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Clifton A. Pemble, 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 date indicated.

 

Signature   Title   Date
         
/s/ Clifton A. Pemble   Chief Executive Officer, President and Director   June 7, 2013
Clifton A. Pemble   (principal executive officer)    
         
/s/ Kevin Rauckman   Chief Financial Officer and Treasurer (principal   June 7, 2013
Kevin Rauckman   accounting and financial officer)    
         
/s/ Donald H. Eller   Director   June 7, 2013
Donald H. Eller        
         
/s/ Joseph J. Hartnett   Director   June 7, 2013
Joseph J. Hartnett        
         
/s/ Min H. Kao   Director   June 7, 2013
Min H. Kao        
         
/s/ Charles W. Peffer   Director   June 7, 2013
Charles W. Peffer        
         
/s/ Thomas Poberezny   Director   June 7, 2013
Thomas Poberezny        

 

 
 

 

EXHIBIT INDEX

 

Exhibit
Number
Description
   
3.1 Articles of Association of Garmin Ltd. (incorporated by reference from Exhibit 3.1 of the Company's Form 8-K filed on June 28, 2010)
   
5.1 Opinion of KPMG AG regarding the legality of the securities being registered
   
23.1 Consent of Ernst & Young LLP
   
23.2 Consent of KPMG AG (included in Exhibit 5.1)
   
24.1 Power of Attorney (included on signature page)
   
99.1 Garmin Ltd. 2005 Equity Incentive Plan (incorporated by reference from Schedule 1 to the Company's Definitive Proxy Statement filed with the SEC on April 22, 2013)

  

 

 

  KPMG AG    
  Legal    
  Badenerstrasse 172 P.O. Box Telephone +41 58 249 23 18
  CH-8004 Zurich CH-8026 Zurich Fax +41 58 249 44 29
      Internet www.kpmglegal.ch

 

 

 

Garmin Ltd. Contact Jörg Kilchmann
Mühlentalstrasse 2 Phone +4158 249 35 73
8200 Schaffhausen e-mail jkilchmann@kpmg.com
  Our reference Kj

 

 

 

 

Zurich, 5 June 2013
 
 
Garmin Ltd. (the "Company") - Form S-8 Registration Statement regarding the Garmin Ltd. 2005 Equity Incentive Plan
 
Ladies and Gentlemen,
 
We have been asked to render this opinion in our capacity as Swiss counsel to the Company in connection with the filing of a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the "Registration Statement"), with the United States Securities and Exchange Commission for up to 4,500,000 registered shares of CHF 10.00 par value each of the Company (the "Registered Shares") to be issued out of the Company's conditional share capital pursuant to the Company’s Garmin Ltd. 2005 Equity Incentive Plan (the "Plan").
 
A. Documents Examined
 
For the purpose of this opinion, we have reviewed and relied on copies of the following documents:
 
(a) a certified extract from the journal of the Commercial Register of the Canton of Schaffhausen regarding the Company certified as May 31, 2013;
 
(b) a copy of the current notarized articles of association of the Company dated June 27, 2010 (the "Articles of Association"), as certified on February 23, 2012;
 
(c) a copy of the resolution of the general meeting of the shareholders of the Company of June 27, 2010, regarding the authorization of conditional capital for the issuance of up to 104,038,709 Registered Shares through the exercise of option rights which are granted to employees and / or members of the board of directors of the Company or group companies (the "Conditional Capital").
   

(d) a confirmation in writing of Mr Andrew Etkind, Vice President, General Counsel & Secretary of the Company, dated June 5, 2013, that the Company has not issued as of June 5, 2013, any Registered Shares out of the Conditional Capital.

 
   

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.

 

 

 

 

 

 

KPMG AG/SA, a Swiss corporation, is a subsidiary of KPMG Holding AG/SA, which is a subsidiary of KPMG Europe LLP and a member of the KPMG network of independent firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss legal entity.

  

 
 

 

B. Searches

 

For the purpose of giving this opinion we have caused to be made in the Commercial Register of the Canton of Schaffhausen on June 4, 2013 a company search for any pending corporate actions with respect to the Company, to the exclusion of any other searches or inquiries.

 

C. Assumptions

 

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.

 

2
 

 

D. Opinion

 

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 the Articles of Association.

 

(b) The resolution of the general meeting of the shareholders of the Company of June 27, 2010 regarding the authorization of the Conditional Capital as reflected in the Articles of Association provide the Company with the authority to issue up to 4,500,000 Registered Shares in connection with the Plan without further shareholder approval.

 

(c) The Registered Shares that may be issued from the Conditional Capital, if and when such Registered Shares are issued pursuant to the Plan, will, after the issue price which shall be at least equal to the nominal amount for such Registered Shares has been paid-up in cash, be validly issued, fully paid-up to their nominal value and non-assessable ( "keine Nachschusspflicht") . The shareholders of the Company who do not exercise option rights pursuant to the Plan will have no personal liability to pay the Registered Shares up to their nominal value in their capacity as shareholders of the Company.

 

E. Qualifications

 

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 opinion expressed in the present letter is 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 herein 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.

 

3
 

 

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 Registration Statement. 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 Registration Statement and the issuance of the Registered Shares by the Company as described in the Registration Statement and is not to be relied upon in respect of any other matter.

 

Yours truly,

 

KPMG AG

 

 

/s/ Jörg Kilchmann /s/ Therese Amstutz
   
Jörg Kilchmann Therese Amstutz
Attorney-at-Law Attorney-at-Law

 

4

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2005 Equity Incentive Plan of Garmin Ltd. of our reports dated February 27, 2013, with respect to the consolidated financial statements and schedule of Garmin Ltd., and the effectiveness of internal control over financial reporting of Garmin Ltd., included in its Annual Report (Form 10-K), for the year ended December 29, 2012, filed with the Securities and Exchange Commission.

 

/s/ ERNST & YOUNG LLP

 

Kansas City, Missouri

June 7, 2013