As filed with the Securities and Exchange Commission on August 15, 2006
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PERRIGO COMPANY
(Exact name of registrant as specified in its charter)
Michigan 38-2799573
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
515 Eastern Avenue
Allegan, Michigan 49010
Telephone: (269) 673-8451
(Address, including zip code, telephone number, including area code, of
registrant's principal executive offices)
PERRIGO COMPANY 2003 LONG-TERM INCENTIVE PLAN
(formerly the Perrigo Company Employee Stock Option Plan, the Non-Qualified
Stock Option Plan for Directors and the Restricted Stock Plan for Directors II)
(Full title of the plan)
Todd W. Kingma
Executive Vice President, Secretary and General Counsel
Perrigo Company
515 Eastern Avenue
Allegan, Michigan 49010
Telephone: (269) 686-1941
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
George C. McKann, Esq.
Gardner, Carton & Douglas LLP
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
--------------------------- ------------ ------------------------ ------------------------ ----------------
Common Stock
(without par value) (1)(2) $4,500,000 $15.425 $69,412,500 $7,428
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(1) Together with an indeterminable number of additional securities in order to
adjust the number of securities reserved for issuance pursuant to the Plan
as the result of a stock split, stock dividend or similar transaction
affecting the Common Stock, pursuant to 17 C.F.R. Section 230.416.
(2) Estimated in accordance with Rule 457(c) and (h)(1), the proposed maximum
offering price per share, proposed maximum aggregate offering price and the
amount of the registration fee are based upon the average of the high and
low prices reported on the Nasdaq Stock Market on August 10, 2006.
INCORPORATION BY REFERENCE OF EARLIER REGISTRATION STATEMENTS ON FORM S-8
Perrigo Company ("Registrant") has earlier filed a registration statement
on Form S-8 (File No. 333-118194) relating to the Perrigo Company 2003 Long-Term
Incentive Plan (the "Earlier Registration Statement"). In accordance with
General Instruction E to Form S-8, this Registration Statement registers
4,500,000 additional shares for issuance pursuant to such plan. Subject to Item
3 of Part II of this Registration Statement and except as modified or superseded
herein, the contents of the Earlier Registration Statement are incorporated
herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission") by the Registrant:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
July 1, 2006;
2. The Registrant's Current Report on Form 8-K, filed with the Commission
on July 7, 2006; and
3. The description of Registrant's capital stock contained in its
Registration Statements pursuant to Section 12 of the Exchange Act and
any amendments or reports filed for the purpose of updating any such
descriptions.
In addition, each document filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior
to the filing of a post-effective amendment that indicates that all securities
offered hereunder have been sold or that deregisters all securities then
remaining unsold under this registration statement, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
herein by reference shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any other
subsequently filed document incorporated herein by reference 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 hereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561 through 571 of the Michigan Business Corporation
Act (the "MBCA"), directors and officers of a Michigan corporation may be
entitled to indemnification by the corporation against judgments, expenses,
fines, and amounts paid by the director or officer in settlement of claims
brought against them by third persons or by or in the right of the corporation
if those directors and officers acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of the corporation or
its shareholders.
The Registrant is obligated under its amended and restated articles of
incorporation and bylaws to indemnify its directors and executive officers to
the full extent permitted under the MBCA. The effect of this provision is to
eliminate the personal liability of directors to the Registrant or its
shareholders for monetary damages for actions involving a breach of their
fiduciary duty of care, including any actions involving gross negligence. The
Registrant may similarly indemnify persons who are not directors or executive
officers to the extent authorized by the Registrant's board of directors.
The MBCA provides for indemnification of directors and officers if they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the Registrant or its shareholders (and, if a
criminal proceeding, if they had no reasonable cause to believe their conduct
was unlawful) against: (a) expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
in connection with any threatened, pending or completed action, suit, or
proceeding (other than an action by or in the right of the Registrant) arising
out of a position with the Registrant (or with some other entity
at the Registrant's request); and (b) expenses (including attorneys' fees) and
amounts paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit or proceeding by or in the
right of the Registrant, unless the director or officer is found liable to the
Registrant, provided that an appropriate court could determine that he or she is
nevertheless fairly and reasonably entitled to indemnity for reasonable expenses
incurred. The MBCA requires indemnification for expenses to the extent that a
director or officer is successful in defending against any such action, suit, or
proceeding.
The MBCA generally requires that the indemnification provided for above be
made only on a determination that the director or officer met the applicable
standard of conduct by a majority vote of a quorum of the board of directors who
were not parties or threatened to be made parties to the action, suit or
proceeding, by a majority vote of a committee of not less than two disinterested
directors, by independent legal counsel, by all independent directors not
parties or threatened to be made parties to the action, suit or proceeding, or
by the shareholders. If the articles of incorporation include a provision
eliminating or limiting the liability of a director, however, a corporation may
indemnify a director for certain expenses and liabilities without a
determination that the director met the applicable standards of conduct, unless
the director received a financial benefit to which he or she was not entitled,
intentionally inflicted harm on the corporation or its shareholders, violated
Section 551 of the MBCA or intentionally committed a criminal act. In connection
with an action by or in the right of the corporation, such indemnification may
be for expenses (including attorneys' fees) actually and reasonably incurred. In
connection with an action, suit, or proceeding other than an action, suit or
proceeding by or in the right of the corporation, such indemnification may be
for expenses (including attorneys' fees) actually and reasonably incurred, and
for judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred.
In certain circumstances, the MBCA further permits advances to cover such
expenses before a final determination that indemnification is permissible or
required, upon receipt of a written affirmation by the director or officer of
his or her good faith belief that he or she has met the applicable standard of
conduct and an undertaking, which need not be secured and which may be accepted
without reference to the financial ability of the person to make repayment, by
or on behalf of the director or officer to repay such amounts if it shall
ultimately be determined that he or she has not met the applicable standard of
conduct. If a provision in the articles of incorporation or bylaws, a resolution
of the board or shareholders or an agreement makes indemnification mandatory,
then the advancement of expenses is also mandatory, unless the provision,
resolution or agreement specifically provides otherwise. The bylaws of the
Registrant generally provide for the mandatory indemnification of, and payment
of expenses incurred by, its directors and officers to the fullest extent
permitted by applicable law unless the proceedings were initiated by the
director or officer and not authorized by the board of directors.
Indemnification under the MBCA is not exclusive of other rights to
indemnification to which a person may be entitled under the Registrant's amended
and restated articles of incorporation, bylaws or a contractual agreement.
However, the total amount of expenses advanced or indemnified from all sources
may not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses. The indemnification provided for
under the MBCA continues as to a person who ceases to be a director or executive
officer.
The MBCA authorizes a court to award, or a corporation to grant,
indemnification to directors and officers in terms that are sufficiently broad
to permit indemnification for liabilities arising under the Securities Act of
1933. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the Registrant has been
informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
The MBCA permits the Registrant to purchase insurance on behalf of its
directors and officers against liabilities arising out of their positions with
the Registrant, whether or not such liabilities would be within the above
indemnification provisions. Pursuant to this authority, the Registrant maintains
such insurance on behalf of its directors and officers.
2
ITEM 8. EXHIBITS.
Exhibit Number Description of Document
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4.1 Amended and Restated Articles of Incorporation of Registrant,
incorporated herein by reference from the Registrant's
Quarterly Report on Form 10-Q filed on February 2, 2005.
4.2 Restated Bylaws of Registrant, as amended through March 1,
2005, incorporated herein by reference from the Registrant's
Current Report on Form 8-K filed on March 3, 2005.
4.3 Perrigo Company 2003 Long-Term Incentive Plan, as amended,
incorporated herein by reference from the Registrant's Proxy
Statement for its 2003 Annual Meeting of Shareholders filed
on September 26, 2003.
4.4 Registration Rights Agreement, dated as of November 14, 2004,
between the Registrant and Moshe Arkin, incorporated herein
by reference from Appendix H to the Registrant's Proxy
Statement/Prospectus included in the Registrant's
Registration Statement on Form S-4/A (No. 333-121574), filed
on February 11, 2005.
4.5 Amendment to the 2003 Long-Term Incentive Plan, incorporated
herein by reference from the Registrant's Current Report on
Form 8-K filed on November 3, 2005.
4.6 Form of Non-Qualified Stock Option Agreement, incorporated
herein by reference from the Registrant's Quarterly Report on
Form 10-Q filed on February 2, 2005.
4.7 Form of Restricted Stock Agreement, incorporated herein by
reference from the Registrant's Quarterly Report on Form 10-Q
filed on February 2, 2005.
5.1* Opinion of Todd W. Kingma, Executive Vice President,
Secretary and General Counsel, regarding legality of
securities.
23.1* Consent of BDO Seidman, LLP.
23.2* Consent of Todd W. Kingma, Executive Vice President,
Secretary and General Counsel (included in Exhibit 5.1).
24.1* Powers of Attorney (included on signature page).
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* Filed herewith
ITEM 9. UNDERTAKINGS.
(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 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 the
aggregate, represent a fundamental change in the information set forth
in the 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;
3
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 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 this 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.
(b) The 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 Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offering herein, 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 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 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.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Allegan, State of Michigan, on this 15th day of
August, 2006.
PERRIGO COMPANY
By: /s/ Judy L. Brown
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Judy L. Brown
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David T. Gibbons, Judy L. Brown or Todd
W. Kingma, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him or her and in
his or her name, place and stead, in any and all capacities, to sign, execute
and file this Registration Statement and any amendments (including, without
limitation, post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and all documents required to be filed
with respect therewith, with the Securities and Exchange Commission or any
regulatory authority, granting unto such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith and about the premises in order to
effectuate the same as fully to all intents and purposes as he or she might or
could do if personally present, hereby ratifying and confirming all that such
attorneys-in-fact and agents or his or their substitute or substitutes, may
lawfully do or cause to be done.
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 this 15th day of August, 2006.
/s/ David T. Gibbons /s/ Judy L. Brown
------------------------------------- -----------------------------------
David T. Gibbons Judy L. Brown
Chairman of the Board, Executive Vice President and
President and Chief Executive Officer Chief Financial Officer
(Principal Accounting and Financial
Officer)
/s/ Moshe Arkin /s/ Laurie Brlas
------------------------------------- ----------------------------------
Moshe Arkin Laurie Brlas
Vice Chairman and Director Director
/s/ Gary M. Cohen /s/ Larry D. Fredricks
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Gary M. Cohen Larry D. Fredricks
Director Director
/s/ Ran Gottfried /s/ Michael J. Jandernoa
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Ran Gottfried Michael J. Jandernoa
Director Director
/s/ Gary K. Kunkle, Jr. /s/ Herman Morris, Jr.
------------------------------------- ----------------------------------
Gary K. Kunkle, Jr. Herman Morris, Jr.
Director Director
S-1
INDEX TO EXHIBITS
Exhibit Number Description of Document
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4.1 Amended and Restated Articles of Incorporation of Registrant,
incorporated herein by reference from the Registrant's Quarterly
Report on Form 10-Q filed on February 2, 2005.
4.2 Restated Bylaws of Registrant, as amended through March 1, 2005,
incorporated herein by reference from the Registrant's Current
Report on Form 8-K filed on March 3, 2005.
4.3 Perrigo Company 2003 Long-Term Incentive Plan, as amended,
incorporated herein by reference from the Registrant's Proxy
Statement for its 2003 Annual Meeting of Shareholders filed on
September 26, 2003.
4.4 Registration Rights Agreement, dated as of November 14, 2004,
between the Registrant and Moshe Arkin, incorporated herein by
reference from Appendix H to the Registrant's Proxy
Statement/Prospectus included in the Registrant's Registration
Statement on Form S-4/A (No. 333-121574), filed on February 11,
2005.
4.5 Amendment to the 2003 Long-Term Incentive Plan, incorporated
herein by reference from the Registrant's Current Report on Form
8-K filed on November 3, 2005.
4.6 Form of Non-Qualified Stock Option Agreement, incorporated herein
by reference from the Registrant's Quarterly Report on Form 10-Q
filed on February 2, 2005.
4.7 Form of Restricted Stock Agreement, incorporated herein by
reference from the Registrant's Quarterly Report on Form 10-Q
filed on February 2, 2005.
5.1* Opinion of Todd W. Kingma, Executive Vice President, Secretary
and General Counsel, regarding legality of securities.
23.1* Consent of BDO Seidman, LLP.
23.2* Consent of Todd W. Kingma, Executive Vice President, Secretary
and General Counsel (included in Exhibit 5.1).
24.1* Powers of Attorney (included on signature page).
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*Filed herewith