Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
8-A/A
Amendment No. 1
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) or (g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Garmin
Ltd.
(Exact
name of registrant as specified in its charter)
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Switzerland
(State
of incorporation or organization)
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98-0229227
(I.R.S.
Employer
Identification
No.)
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Vorstadt
40/42
8200
Schaffhausen
Switzerland
(Address
of principal executive offices)
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N/A
(Zip
Code)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of each class
to
be so registered
Registered
Shares, par value
CHF
10.00 per share
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Name
of each exchange on which
each
class is to be registered
The
NASDAQ Stock Market
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None
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Not
Applicable
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If this
form relates to the registration of a class of securities pursuant to Section
12(b) of the Exchange Act and is effective pursuant to General Instruction
A.(c), check the following box. x
If this
form relates to the registration of a class of securities pursuant to Section
12(g) of the Exchange Act and is effective pursuant to General Instruction
A.(d), check the following box. ¨
Securities
Act registration statement file number to which this form
relates: Not Applicable (if applicable)
Securities
to be registered pursuant to Section 12(g) of the
Act: None
EXPLANATORY
NOTE
This Registration Statement on Form
8-A/A is being filed by Garmin Ltd., a Swiss corporation (the "Company"), to
provide a description of the Company’s registered shares. Pursuant to
the rules under the Securities Exchange Act of 1934, as amended, the Company is
the successor issuer to Garmin Ltd., a Cayman Islands company (“Garmin Cayman”),
whose common shares were described in the Registration Statement on Form 8-A
filed by Garmin Cayman with the Securities and Exchange Commission on November
17, 2000.
Item
1. Description of Registrant's Securities to be
Registered.
The
following description of the Company’s share capital is a
summary. This summary is not complete and is subject to the complete
text of the Company’s articles of association and organizational regulations, as
well as Swiss corporate law.
Except as
specifically noted, “the Company,” “we,” “us” and similar words in this
registration statement refer to Garmin Ltd., a Swiss corporation.
Capital
Structure
As of
June 28, 2010, we had a total share capital of CHF 2,080,774,180 divided into
208,077,418 registered shares, with a par value of CHF 10.00 per
share.
Authorized Share Capital. The
board of directors is authorized to issue new registered shares at any time
during a two-year period ending on June 27, 2012 and thereby increase the share
capital, without obtaining additional shareholder approval, by a maximum amount
of 50% of the share capital registered in the commercial register. After the
expiration of the initial two-year period, authorized share capital will be
available to the board of directors for issuance of additional registered shares
only if such authorization has again been approved by shareholders at a
shareholders’ meeting. Each such authorization may last for up to two
years.
The board
of directors determines the time of the issuance, the issuance price, the manner
in which the new registered shares have to be paid in, the date from which
the new registered shares carry the right to dividends and, subject to the
provisions of the Company’s articles of association, the conditions for the
exercise of the preemptive rights with respect to the issuance and the allotment
of preemptive rights that are not exercised. The board of directors
may allow preemptive rights that are not exercised to expire, or it may place
such rights or registered shares, the preemptive rights of which have not
been exercised, at market conditions or use them otherwise in our
interest.
In an
authorized capital increase, our shareholders would have preemptive rights to
obtain newly issued registered shares in an amount proportional to the par
value of the registered shares they already hold. However, the board of
directors may withdraw or limit these preemptive rights in certain
circumstances. For further details on these circumstances,
see “—Preemptive Rights.”
Conditional Share
Capital. Our articles of association provide for conditional capital
that allows the issuance of additional registered shares, up to a
maximum amount of 50% of the share capital registered in the commercial
register, without obtaining additional shareholder approval at a
shareholder meeting. These registered shares may be issued through the
exercise of stock options (which includes stock-settled stock
appreciation rights) granted to employees and/or members of the board of
directors of the Company or its subsidiaries.
The
preemptive rights of shareholders are excluded with respect to registered shares
issued out of conditional share capital.
Other Classes or Series of Shares.
Under the Swiss Code of Obligations (the "Swiss Code"), the board of
directors of the Company may not create shares with increased voting powers
without a resolution of the general meeting of shareholders passed by at least
two thirds of the votes represented at such meeting and the “absolute
majority” of the par value of the shares represented. With respect to the
par value of shares represented at a general meeting, the term “absolute
majority” means the approval of at least (a) fifty percent (50%) of the
aggregate par value of the shares represented at such general meeting,
including abstentions, unmarked, invalid or non-exercisable votes (which
includes broker non-votes) plus (b) the par value of one share.
The
shareholders acting at a shareholders’ meeting may create preferred shares with
a resolution passed by the majority of the votes cast (excluding unmarked,
invalid and non-exercisable votes (which includes broker non-votes). Any
preferential rights of individual classes of shares must be set forth in
the articles of association.
Preemptive
Rights
Under the
Swiss Code, holders of the Company's registered shares generally have preemptive
rights and preferential rights to subscribe for newly issued securities of
the Company. The shareholders may, by a resolution passed by at least
two thirds of the votes represented at a general meeting and the “absolute
majority” of the par value of the shares represented, withdraw or limit the
preemptive rights for important reasons (such as a merger or
acquisition).
If a
general meeting of shareholders has approved, by amendment of the articles of
association, the creation of authorized capital, it may at the same time
delegate to the board of directors the decision whether to withdraw or limit the
preemptive rights for important reasons, provided that the basic principles
are set forth in its delegation. The Company’s articles of
association provide for this delegation with respect to the Company’s authorized
share capital in the circumstances described below. See “—Authorized Share
Capital” and “—Conditional Share Capital.”
Authorized Share Capital.
The board of directors is authorized to withdraw or limit the
preemptive rights of the shareholders and to allot them to third parties
for important reasons, including if:
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the
issue price of the registered shares is determined by reference to the
market price;
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the
registered shares are issued in connection with the acquisition of an
enterprise or any part of an enterprise or participations,
the financing or refinancing of any such transactions or the
financing of new investment plans of the Company;
or
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the
registered shares are issued in connection with the intended broadening of
the shareholder constituency of the Company in certain financial or
investor markets, for the purposes of the participation of strategic
partners, or in connection with the listing of the shares of the Company
on domestic or foreign stock
exchanges.
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Courts in
Switzerland have not addressed whether certain of the reasons above qualify as
important reasons under Swiss law, in particular, any issuances
contemplated by the first bullet above and for purposes of the participation of
strategic partners.
In order
to be an important reason justifying the withdrawal of the preemptive right such
withdrawal must in any case:
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be
in the interest of the Company and necessary for the pursuit of its lawful
goals; and
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observe
the principles of the equal treatment of shareholders and of the
considerate exercise of rights.
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Conditional Share Capital.
The share capital of the Company may be increased through the
exercise of option rights (including stock-settled stock appreciation
rights) which are granted to employees and/or members of the board of directors
of the Company or its subsidiaries. Shareholders do not have preferential
subscription rights in connection with the granting of such options nor do they
have preemptive rights with respect to any registered shares issued from
the Company’s conditional share capital upon the exercise of such employee stock
options.
For more
information on authorized and conditional capital, see “—Capital Structure”
above.
Dividends
Under
Swiss law, dividends may be paid out only if the company has sufficient
distributable profits from the previous fiscal year, or if the Company has
freely distributable reserves, each as will be presented on the audited annual
stand-alone statutory balance sheet. Dividend payments out of the
share capital (in other words, the aggregate par value of the Company’s share
capital) are not allowed. The affirmative vote at a
shareholders’ meeting of a majority of the votes cast (excluding unmarked,
invalid and non-exercisable votes (which includes broker non-votes)) must
approve distributions of dividends. The board of directors may
propose to the shareholders’ meeting that a dividend be paid but cannot itself
authorize the dividend.
Under the
Swiss Code, if the Company's general reserves amount to less than 20% of the
aggregate par value of the Company’s registered capital, then at least 5%
of the Company’s annual profit must be retained as general reserves. The
Swiss Code and the Company’s articles of association permit the general
meeting of the shareholders of the Company to decide upon the accrual of
additional general reserves. In addition, the Company is required to create
a special reserve on its stand-alone annual statutory balance sheet in the
amount of the purchase price of registered shares it or any of its
subsidiaries repurchases, which amount may not be used for dividends or
subsequent repurchases.
Swiss
companies generally must maintain a separate stand-alone “statutory” balance
sheet for the purpose of, among other things, determining the amounts
available for the return of capital to shareholders, including by way of a
distribution of dividends. The Company’s auditor must confirm
that a dividend proposal made to the general meeting of the shareholders
conforms with the requirements of the Swiss Code and the Company’s articles of
association. Dividends are due and payable upon the shareholders’ meeting
having passed a resolution approving the payment subject to the right of
the shareholders’ meeting to adopt a resolution providing for payment on a later
date or dates.
The
Company will be required under Swiss law to declare the amount available for any
dividends and other capital distributions in Swiss Francs. The
Company intends to exchange such Swiss Franc amounts into U.S. Dollars and make
any dividend payments to holders of the Company shares in U.S.
Dollars. The Company’s transfer agent, Computershare Trust Company,
N.A. will be responsible for paying the U.S. Dollars to registered holders
of shares, less any amounts subject to withholding for taxes.
Repurchases
of Shares
The Swiss
Code limits a company’s ability to hold or repurchase its own
shares. The Company and its subsidiaries may only repurchase
shares if and to the extent that sufficient freely distributable reserves
are available, as described above under “—Dividends.” Also, the
aggregate par value of all of the Company's registered shares held by the
Company and its subsidiaries may not exceed 10% of the registered share
capital. However, the Company may repurchase its own registered shares
beyond the statutory limit of 10% if the shareholders at a shareholders’
meeting have passed a resolution authorizing the board of directors to
repurchase registered shares in an amount in excess of 10% and the
repurchased shares are dedicated for cancellation. Any registered shares
repurchased under such an authorization must then be cancelled in the
course of a capital reduction procedure to be resolved by the next general
meeting. The corresponding resolution must be passed with a majority
of the votes cast, excluding unmarked, invalid and non-exercisable votes (which
includes broker non-votes). Repurchased shares held by the Company or its
subsidiaries do not carry any rights to vote at a general meeting of
shareholders but are entitled to the economic benefits generally associated
with the shares.
Reduction
of Share Capital
Capital
distributions may also take the form of a distribution of cash or property that
is based upon a reduction of the Company’s share capital registered in the
commercial register. The resolution of the shareholders’ meeting regarding such
a capital reduction must be passed with a majority of the votes cast, excluding
unmarked, invalid non-exercisable votes (which includes broker non-votes). A
special audit report must confirm that creditors’ claims remain fully covered
despite the reduction in the share capital registered in the commercial
register. Upon approval by the general meeting of shareholders of the capital
reduction, the board of directors must give public notice of the capital
reduction resolution in the Swiss Official Gazette of Commerce three times and
notify creditors that they may request, within two months of the third
publication, satisfaction of or security for their claims.
General
Meetings of Shareholders
The
general meeting of shareholders is the Company’s supreme corporate body.
Common and extraordinary shareholders’ meetings may be held.
The following powers will be vested exclusively in the shareholders’
meeting:
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adoption
and amendment of the Company’s articles of association with minor formal
exceptions;
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determination
of the number of members of the board of directors as well as their
appointment and removal;
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appointment
and removal of the auditors;
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approval
of the annual report of the board of directors and the approval of the
annual financial accounts and (if applicable) the
group accounts;
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the
allocation of profits shown in the balance sheet, in particular, the
determination of dividends and the profit share of the board
of directors;
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discharge
of the members of the board of directors and the persons entrusted with
management;
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any
other resolution on matters which are reserved to the general meeting of
the shareholders either by law or the articles of
association; and
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the
approval of Business Combinations (as defined in the articles of
association) if and to the extent such approval (i) is not
covered already by the powers entrusted on the general meeting by law
and the articles of association and (ii) is not an inalienable power of
another corporate body of the
Company.
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Under the
Swiss Code and the Company’s articles of association, the Company must hold an
annual general meeting of shareholders within six months after the end of
each fiscal year for the purpose, among other things, of approving the annual
financial statements and the annual business report, the appointment of
auditors and the annual election of members of the board of directors for the
class whose term is expiring. The official means of publication of
the Company is the Swiss Official Gazette of Commerce. The invitation
notice regarding the annual general meetings and the extraordinary general
meetings must be published at least 20 days prior to the date of such general
meeting in the Swiss Official Gazette of Commerce. The other
mandatory notification to registered shareholders in connection with the annual
general meeting of the shareholders (information regarding the right to
inspect or request delivery of the annual business report and the annual report
of the auditor) must be sent to the registered shareholders by regular mail
or electronic mail to the last address registered in the share register at least
20 days prior to the annual general meeting of the shareholders. The
invitation notice of a general meeting must state the items on the agenda, the
proposals and, in case of elections, the names of the nominated candidates.
No resolutions may be passed at a shareholders’ meeting concerning agenda
items for which proper notice was not given. This does not apply,
however, to proposals made during a shareholders’ meeting to convene an
extraordinary shareholders’ meeting or to initiate a special investigation
or the appointment of auditors at the request of a shareholder pursuant to the
Swiss Code. No previous notification will be required for proposals
concerning items included on the agenda or for debates as to which no vote is
taken.
Annual
general meetings of shareholders will be convened by the board of directors or,
under certain circumstances, by the auditor. Liquidators
and representatives of bond creditors are also entitled to call a
general meeting of shareholders. A general meeting of shareholders can be
held anywhere, except in cases where shareholders would be unduly hindered
to participate in the meeting.
The
Company expects to set the record date for each general meeting of shareholders
on a date that is less than 20 calendar days prior to the date of each
general meeting and to announce the date of the general meeting of shareholders
prior to the record date.
An
extraordinary general meeting of the Company may be called upon the resolution
of the board of directors or, under certain circumstances, by the auditor.
Liquidators and representatives of bond creditors are also entitled to
call a general meeting of shareholders. In addition, the board of
directors is required to convene an extraordinary general meeting of
shareholders if so resolved by the general meeting of shareholders, or if
so requested by one or more shareholders holding an aggregate of at least 10% of
the share capital (according to leading Swiss legal scholars,
also shareholders who own shares with a par value of at least one million
Swiss Francs may request a shareholders’ meeting) specifying, among other
things, the items for the agenda and their proposals, or if it appears from
the stand-alone annual statutory balance sheet that half of the company’s
share capital and statutory reserves are not covered by the Company’s
assets. In the latter case, the board of directors must immediately
convene an extraordinary general meeting of shareholders and propose
financial restructuring measures.
Shareholders
representing a share capital of at least one million Swiss Francs or holding an
aggregate of at least 10% of the share capital may request that an item be
put on the agenda at a general meeting of shareholders.
The
Company’s articles of association provide that the adoption of any resolution or
election requires the presence of at least a majority of the total number
of shares entitled to vote at a general meeting of the shareholders (whether or
not represented at such meeting) at the time when the general meeting of
the shareholders proceeds to business. The shareholders present at a
general meeting of the shareholders may continue to transact business,
despite the withdrawal of shareholders from such general meeting of the
shareholders following announcement of the quorum at that
meeting.
Under
Swiss law, in the absence of a quorum of the required minimum number of
shareholders, the applicable general meeting of shareholders terminates and
a new general meeting of shareholders must be called in accordance with the
Company’s articles of association. For any new general meeting, the
applicable requirements for calling the meeting and setting a record date, as
described above, would need to be satisfied.
The
Company’s annual report and auditor’s report must be made available for
inspection by the shareholders at the Company’s place of incorporation no
later than 20 days prior to the general meeting. Each shareholder is
entitled to request immediate delivery of a copy of these documents free of
charge. Shareholders of record will be notified of this in
writing.
Voting
Each
registered share of the Company carries one vote at a general meeting of
shareholders. Voting rights may be exercised by
shareholders registered in the Company’s share register or by a duly
appointed proxy of a registered shareholder, which proxy need not be a
shareholder. The Company’s articles of association do not limit the
number of registered shares that may be voted by a single
shareholder.
To be
able to exercise voting rights, holders of the shares must apply to us for
enrollment in our share register as shareholders with voting
rights. Registered holders of shares may obtain the form of application
from our transfer agent. The form of application includes a representation
that the holder is holding shares for his own account. Certain
exceptions exist for nominees. The board of directors will register
Cede & Co., as nominee of The Depository Trust Company (“ DTC”), with voting
rights with respect to shares held in “street name” through
DTC.
If the
board of directors refuses to register a shareholder as a shareholder with
voting rights, the board will notify the shareholder of such refusal within
20 days of the receipt of the application. Furthermore, the board may cancel,
with retroactive application, the registration of a shareholder with voting
rights if the initial registration was on the basis of false information in the
shareholder’s application. Shareholders registered without
voting rights may not participate in or vote at the Company’s shareholders’
meetings, but will be entitled to dividends, preemptive rights and
liquidation proceeds. Only shareholders that are registered as
shareholders with voting rights on the relevant record date are permitted to
participate in and vote at a general shareholders’ meeting.
Treasury
shares, whether owned by the Company or one of its majority-owned subsidiaries,
will not be entitled to vote at general meetings of shareholders.
With
respect to the election of the members of the board of directors, each holder of
shares entitled to vote at the general meeting has the right to vote, in
person or by proxy, the number of shares held by him or her for as many persons
as have been nominated to be elected as members of the board of
directors. The Company’s articles of association do not provide for
cumulative voting for members of the board of directors. Members
of the board of directors are elected by a majority of the votes cast in
the general meeting, excluding unmarked, invalid and non-exercisable votes
(which includes broker non-votes). Where the votes are tied, the
decision shall be by lot.
Pursuant
to the Company’s articles of association, the shareholders generally pass
resolutions and votes with a majority of the votes cast, excluding
unmarked, invalid and non-exercisable votes (which includes broker non-votes),
unless otherwise provided by law or the Company’s articles of
association.
The Swiss
Code and the Company’s articles of association require the affirmative vote of
at least two thirds of the shares represented, and the absolute majority of
the par value of the shares represented, at a general meeting to approve the
following matters:
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the
amendment to or the modification of the objects of the
Company;
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the
creation of shares with privileged voting
rights;
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the
restriction on the transferability of registered
shares;
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an
authorized or conditional increase of the share
capital;
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a
capital increase out of equity, by way of contributions in kind or for the
purpose of acquisition of assets and the granting of
special benefits;
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the
restriction or withdrawal of subscription
rights;
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the
relocation of the Company's registered
office;
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the
dissolution of the Company; and
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a
merger, demerger or transformation resolution pursuant to the Swiss
Federal Act on Mergers, Demergers, Transformations and the Transfer
of Assets (the “Swiss Merger Act”).
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Swiss law
may also impose this supermajority voting requirement in connection with the
sale by the Company of “all or substantially all of its assets.” See
“—Compulsory Acquisitions; Appraisal Rights.”
Subject
to certain exceptions (such as where the decision would be covered by the
inalienable powers of another corporate body), the Company’s articles of
association require the affirmative vote of holders of at least 75% of the
shares represented at a general meeting (a) for the Company to engage in any
Business Combination (as such term is defined in the Company’s articles of
association); and (b) for any change to this provision.
The
Company’s articles of association require the affirmative vote of at least two
thirds of the total number of shares entitled to vote at a general meeting
of the shareholders, whether or not represented at such meeting, (a) for a
resolution with respect to the removal of a serving member of the board of
directors and (b) for any change to this provision.
The
Company’s articles of association require the affirmative vote of at least 75%
of the total number of shares entitled to vote at a general meeting of the
shareholders, whether or not represented at such meeting, (a) for any increase
or reduction in the number of members of the board of directors specified
in the articles of association and (b) for any change to this
provision.
Quorum
for General Meetings
The
presence of shareholders, in person or by proxy, holding at least a majority of
the total number of shares entitled to vote at a general meeting of the
shareholders whether or not represented at such meeting (“Total Voting Shares”),
is a quorum for the adoption of any resolution or election. The
shareholders present at a general meeting may continue to transact business,
despite the withdrawal of shareholders from such general meeting following
announcement of the presence quorum at that meeting.
Under the
Swiss Code, the board of directors has no authority to waive quorum requirements
stipulated in the articles of association.
Inspection
of Books and Records
Although
not explicitly stated in the Swiss Code, a shareholder has a right to inspect
the share register with regard to his own shares. With respect to the
right to inspect the share register with regard to the shares of other
shareholders, the inspection right and the related procedure is disputed
among legal scholars. The majority of legal scholars in Switzerland
are of the opinion that Article 697 of the Swiss Code is applicable, which
provides that the board of directors or alternatively the shareholders’
meeting is competent to decide. Should the inspection be denied, the
shareholder may challenge the decision in court. Also, according to
the majority of the legal scholars, a shareholder may only require inspection if
he or she has an interest worthy of protection. An inspection of the
whole share register is not possible. The books and correspondence of a
Swiss company may be inspected with the express authorization of the
general meeting of shareholders or by resolution of the board of directors and
subject to the safeguarding of the company’s business secrets. At a
general meeting of shareholders, any shareholder is entitled to request
information from the board of directors concerning the affairs of the
Company. Shareholders may also ask the auditor questions regarding its
audit of the Company. The board of directors and the auditor must
answer shareholders’ questions to the extent necessary for the exercise of
shareholders’ rights and subject to prevailing business secrets or
other material interests of the Company.
Special
Investigation
Generally,
if the shareholders’ inspection and information rights as outlined above have
been exercised and prove to be insufficient, any shareholder may propose to
a general meeting of shareholders that specific facts be examined by a special
commissioner in a special investigation. Such shareholder is not
required to comply with the advance notice requirements described above in
“—General Meetings of Shareholders” because this matter is not required to be
included in the agenda. However, if a shareholder wishes to call
an extraordinary general meeting and propose that specific facts be
examined by a special commissioner in a special investigation, the shareholder
must comply with the requirements to call an extraordinary general meeting
and the advance notice requirements described above in “—General Meetings
of Shareholders.” If one or more shareholders desires to call an
extraordinary general meeting of shareholders to consider the proposal, the
shareholders must hold an aggregate of at least 10% of the share capital
recorded in the commercial register (according to leading Swiss legal scholars,
also shareholders who own shares with a par value of at least one million
Swiss Francs may request a shareholders' meeting) See “—General Meetings
of Shareholders.” If the general meeting of shareholders approves the
proposal, the Company or any shareholder may, within 30 calendar days
after the general meeting of shareholders, request the court at the
Company’s registered office to appoint a special commissioner. If the
general meeting of shareholders rejects the proposal, one or more
shareholders representing at least 10% of the share capital or holders of
registered shares in an aggregate par value of at least two million Swiss
Francs may, within three months, request the court to appoint a special
commissioner. The court will issue such an order if the petitioners
can demonstrate that corporate bodies or the founders of the Company infringed
the law or the Company’s articles of association and thereby damaged the Company
or its shareholders. The costs of the investigation would generally
be allocated to the Company and only in exceptional cases to the
petitioners.
Compulsory
Acquisitions; Appraisal Rights
Business
combinations and other transactions that are binding on all shareholders are
governed by the Swiss Merger Act. A merger or demerger requires that
at least two thirds of the votes represented at the general meeting of
shareholders and the absolute majority of the par value of the
shares represented vote in favor of the transaction. Under the Swiss
Merger Act, a “demerger” may take two forms:
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a
legal entity may divide all of its assets and transfer such assets to
other legal entities, with the shareholders of the transferring
entity receiving equity securities in the acquiring entities and the
transferring entity dissolving upon deregistration in the commercial
register; or
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a
legal entity may transfer all or a portion of its assets to other legal
entities, with the shareholders of the transferring entity
receiving equity securities in the acquiring
entities.
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If a
transaction under the Swiss Merger Act receives the necessary shareholder
approvals as described above, all shareholders would be compelled to
participate in the transaction. See “—Voting.”
Swiss
companies may be acquired by an acquirer through the direct acquisition of the
share capital of the Swiss company. With respect to companies limited
by shares, such as the Company, the Swiss Merger Act provides for the
possibility of a so-called “cash-out” or “squeeze-out” merger if the
acquirer controls 90% of the outstanding registered shares entitled to vote at a
general meeting. In these limited circumstances,
minority shareholders of the company being acquired may be compensated in a
form other than through shares of the acquiring company (for instance,
through cash or securities of a parent company of the acquiring company or
of another company). Under the Swiss Merger Act, a shareholder has the
right to request a court to review the adequacy of the compensation within
two months upon the shareholders’ resolution in favor of the
transaction.
In
addition, under Swiss law, the sale by the Company of “all or substantially all
of its assets” may require a resolution of the general meeting of
shareholders passed by holders of at least two thirds of the voting rights and
the absolute majority of the par value of the registered shares, each as
represented at the general meeting. Whether or not a shareholder
resolution is required depends on the particular transaction, including
whether the following test is satisfied:
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the
Company sells a core part of its business, without which it is
economically impracticable or unreasonable to continue to operate the
remaining business;
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•
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the
Company’s assets, after the divestment, are not invested in accordance
with the Company's statutory business purpose;
and
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•
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the
proceeds of the divestment are not earmarked for reinvestment in
accordance with the Company’s business purpose but, instead, are
intended for distribution to shareholders or for financial investments
unrelated to the Company’s
business.
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If all of
the foregoing apply, a shareholder resolution would likely be
required.
Anti-Takeover
Provisions
The
Company’s articles of association have provisions that could have an
anti-takeover effect. These provisions are intended to enhance the
likelihood of continuity and stability in the composition of the board of
directors and its policies, and the ability of the board of directors
to negotiate with any potential acquirer terms that are more favorable to
shareholders. These provisions may have the effect of discouraging actual
or threatened changes of control by limiting certain actions that may be
taken by a potential acquirer prior to its having obtained sufficient control
to adopt a special resolution amending the Company’s articles of
association.
The
articles of association provide that the Company’s board of directors will be
divided into three classes serving staggered
three-year terms.
The
Company’s articles of association provide that, in general, the approval of not
less than 75% of the shareholders of the Company represented at a general
meeting of shareholders is required for any of the following (any of such
transactions being referred to as a “Business Combination”) provided that
the matter is not covered by the inalienable powers of another corporate body,
such as the board of directors:
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(i)
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any
merger or consolidation of the Company or any subsidiary with (i) any
Interested Shareholder or (ii) any other company or other entity
(whether or not itself an Interested Shareholder) which is, or after such
merger or consolidation would be, an affiliate of an
Interested Shareholder; or
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(ii)
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any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in
one transaction or a series of transactions) to or with
any Interested Shareholder, or any affiliate of any Interested
Shareholder, of any assets of the Company or any subsidiary having
an aggregate fair market value equaling or exceeding 25% of the fair
market value of the combined assets immediately prior to such transfer of
the Company and its subsidiaries;
or
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(iii)
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the
issuance or transfer by the Company or any subsidiary (in one transaction
or a series of transactions) to any Interested Shareholder or any
affiliate of any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof), of any securities of
the Company or any subsidiary having an aggregate fair market value
equaling or exceeding 25% of the fair market value of the combined
assets immediately prior to such transfer of the Company and its
subsidiaries except pursuant to an employee benefit plan of the
Company or any subsidiary thereof;
or
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(iv)
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the
adoption of any plan or proposal for the liquidation or dissolution of the
Company proposed by or on behalf of any Interested Shareholder or any
affiliate of any Interested Shareholder;
or
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(v)
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any
reclassification of securities of the Company (including any reverse share
split), recapitalization of the Company, merger or consolidation of
the Company with any of its subsidiaries or other transaction (whether or
not with or into or otherwise involving an Interested Shareholder),
which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity
or convertible securities of the Company or any subsidiary which is
directly or indirectly owned by any Interested Shareholder or any
affiliate of any Interested Shareholder (a “Disproportionate
Transaction”); provided, however, that no such transaction shall be
deemed a Disproportionate Transaction if the increase in the proportionate
ownership of the Interested Shareholder or affiliate as a result of
such transaction is no greater than the increase experienced by the other
stockholders generally.
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The above
75% shareholder vote requirement does not apply to a Business Combination if the
Business Combination has been approved by a majority of the Company’s
Disinterested Directors.
As
defined in the Company’s articles of association, an Interested Shareholder
generally includes any person who, together with that person’s affiliates
or associates, (1) is the beneficial owner, directly or indirectly, of more than
20% of the voting power of the outstanding shares of the Company or (2) is an
affiliate of the Company and owned 20% or more of the issued shares of the
voting power of the outstanding shares of the Company at any time within
the previous two years.
As
defined in the Company’s articles of association, a Disinterested Director means
any member of the Company’s board of directors who is unaffiliated with the
Interested Shareholder and who was a member of the board of directors prior to
the time that the Interested Shareholder became an Interested Shareholder,
and any member of the board of directors who is thereafter chosen to fill any
vacancy on the board of directors or who is elected and who, in either
event, is unaffiliated with the Interested Shareholder, and in connection with
his or her initial assumption of office is recommended for appointment or
election by a majority of Disinterested Directors then on the board of
directors.
Swiss law
generally does not prohibit business combinations with interested shareholders.
However, in certain circumstances, shareholders and members of the
board of directors of Swiss companies, as well as certain persons associated
with them, must refund any payments they receive that are not made on an
arm’s length basis.
Our
articles of association include authorized share capital, according to which the
board of directors is authorized, at any time during a maximum two-year
period, to issue a number of registered shares of up to 50% of the share capital
registered in the commercial register and to limit or withdraw the
preemptive rights of the existing shareholders for important reasons, including
if (i) the issue price of the newly issued shares is determined
by reference to the market price; or (ii) for the acquisition of an
enterprise, part(s) of an enterprise or participations, or for the financing or
refinancing of any of such transactions, or for the financing of new
investment plans of the Company; or (iii) for purposes of broadening the
shareholder constituency of the Company in certain financial or investor
markets, for purposes of the participation of strategic partners, or in
connection with the listing of new issued shares on domestic or foreign
exchanges.
Courts in
Switzerland have not addressed whether certain of the provisions related to
interested shareholders contained in the Company's articles of association are
valid under Swiss law.
In order
to be an important reason justifying the withdrawal of the preemptive right such
withdrawal must in any case
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•
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be
in the interest of the Company and necessary for the pursuit of its lawful
goals; and
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•
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observe
the principles of the equal treatment of shareholders and of the
considerate exercise of rights.
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For other
provisions that could be considered to have an anti-takeover effect, see
“—Preemptive Rights” and “—General Meetings of Shareholders.”
Legal
Name; Formation; Fiscal Year; Registered Office; Notices and
Announcements
The legal
and commercial name of the Company is Garmin Ltd. The Company’s
articles of association were adopted on February 8, 2010 at the
incorporation meeting, and the Company was incorporated on February 9,
2010. The Company is domiciled in the Canton of Schaffhausen,
Switzerland, and operates under the Swiss Code as a share corporation (Aktiengesellschaft). The
Company is registered in the commercial register of the Canton of
Schaffhausen with the registration number CH-290.3.016.704-3. The
Company’s fiscal year is the calendar year.
The
address of the Company’s registered office is Garmin Ltd., Vorstadt 40/42, 8200
Schaffhausen, Switzerland, and the telephone number at that address is +41 (52)
620 14 01.
The
official means of publication of the Company is the Swiss Official Gazette of
Commerce. The invitation notice regarding general meetings must be
published at least 20 days prior to the date of such general meeting in the
Swiss Official Gazette of Commerce. The other mandatory notification
to registered shareholders in connection with the annual general meeting of the
shareholders (information regarding the right to inspect or request
delivery of the annual business report and the annual report of the auditor)
must be sent to the registered shareholders by regular mail or electronic
mail to the last address registered in the share register at least 20 days prior
to the annual general meeting of the shareholders.
Corporate
Objects
The
purpose of the Company is to acquire, hold, finance, manage and sell
participations in Swiss and foreign enterprises of all
types. The Company may set up branch offices and subsidiaries in
Switzerland and abroad and may acquire, hold, manage, encumber and sell
real estate and intellectual property rights in Switzerland and
abroad. The Company may provide any kind of
financial assistance, including guarantees, to and for Garmin group
companies. The Company may engage in any type of commercial activity
that is directly or indirectly related to its objects and take any measures
it determines appropriate to promote the objects of the Company, or that are
connected with such objects.
Duration;
Dissolution; Rights upon Liquidation
The
Company’s duration is unlimited. Under the Swiss Code, the Company may be
dissolved at any time upon a resolution of the general meeting of
shareholders passed by at least two thirds of the shares represented at such
meeting and the absolute majority of the par value of such shares.
Dissolution by court order is possible if the Company becomes bankrupt, or
for cause at the request of shareholders holding at least 10% of the
Company’s share capital, or if in the course of incorporation, legal provisions
or provisions of the articles of association have been disregarded, and the
interests of the creditors or shareholders have been severely jeopardized or
infringed thereby. Under the Swiss Code, unless otherwise provided
for in the articles of association, any surplus arising out of liquidation,
after the settlement of all claims of all creditors, will be distributed
to shareholders in proportion to the paid-up par value of registered shares
held, with due regard to the preferential rights of individual classes of
shares, and subject to Swiss withholding tax requirements.
Uncertificated
Shares
Holders
of registered shares of the Company will not have the right to require the
Company to issue certificates for their shares. The Company will only
issue uncertificated registered shares.
Stock
Exchange Listing
Our
registered shares are listed on the NASDAQ Global Select Market and
trade under the symbol “GRMN.”
No
Sinking Fund
The
registered shares have no sinking fund provisions.
No
Liability for Further Calls or Assessments
Our
currently outstanding registered shares are duly and validly issued, fully paid
and nonassessable.
No
Redemption and Conversion
The
general meeting of the shareholders of the Company may at any time convert
registered shares into bearer shares and vice versa by amending the
articles of association. Furthermore, the general meeting of
shareholders is authorized to split shares into shares with lower par value
or, with the approval of all shareholders, to consolidate shares into
shares with higher par value. The shares of the Company are not subject
to redemption either by the Company or the holder of the
shares.
Transfer
and Registration of Shares
Except as
described above in “— Voting,” no restrictions apply to the transfer of the
Company's registered shares. The Company’s share register will
initially be kept by Computershare Trust Company, which acts as transfer agent
and registrar. The share register reflects only record owners of the
Company's shares. A shareholder of the Company who holds shares
beneficially will not be the holder of record of such shares. Instead, the
depository (for example, Cede & Co., as nominee for DTC) or other
nominee will be the holder of record of such shares. Accordingly, a
transfer of shares from a person who holds such shares beneficially to a
person who also holds such shares beneficially through a depository or
other nominee will not be registered in the Company’s official share register,
as the depository or other nominee will remain the record holder of such
shares.
Item
2. Exhibits.
The following exhibits to this
Registration Statement on Form 8-A/A are incorporated by reference from the
documents specified, which have been filed with the Securities and Exchange
Commission.
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4.1
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Articles
of Association of Garmin Ltd. (Filed as Exhibit 3.1 to the Company's
Current Report on Form 8-K filed on June 28, 2010 and incorporated herein
by reference).
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4.2
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Organizational
Regulations of Garmin Ltd. (Filed as Exhibit 3.2 to the Company's Current
Report on Form 8-K filed on June 28, 2010 and incorporated herein by
reference).
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SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
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GARMIN
LTD.
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By:
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/s/ Andres R. Etkind
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Andrew
R. Etkind
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Vice
President, General Counsel and
Secretary
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