As filed with the Securities and Exchange Commission on March 7, 2007
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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 PROFIT-SHARING AND INVESTMENT PLAN
(formerly the Perrigo Company Investment Plan and Trust and the
L. Perrigo Company Profit-Sharing and Investment Plan)
(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.
Drinker Biddle Gardner Carton
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)(3) 750,000 $16.51 $12,382,500 $381
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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) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(3) 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 March 5, 2007.
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. 33-46262) relating to the Perrigo Company
Profit-Sharing and Investment Plan (the "Earlier Registration Statement"). In
accordance with General Instruction E to Form S-8, this Registration Statement
registers 750,000 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 Registrants' Quarterly Reports on Form 10-Q for the quarters
ended September 30, 2006 and December 30, 2006;
3. The Registrant's Current Reports on Form 8-K, filed with the
Commission on July 7, 2006; August 9, 2006; August 22, 2006;
September 12, 2006; October 31, 2006; November 2, 2006; November
9, 2006; November 13, 2006; and February 22, 2007.
4. The plan's Annual Report on Form 11-K for the year ended December
31, 2005; and
5. 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 restated 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.
ITEM 8. EXHIBITS.
The Registrant hereby undertakes to submit the plan and any amendment
thereto to the Internal Revenue Service (the "IRS") in a timely manner and make
all changes required by the IRS in order to qualify the plan under Section
401(a) of the Internal Revenue Code of 1986, as amended.
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 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.
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;
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 and each filing of the plan's annual report
pursuant to Section 15(d) of the Securities 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.
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 8th day of
February, 2007.
PERRIGO COMPANY
By: /s/ Judy L. Brown
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Judy L. Brown
Executive Vice President and
Chief Financial Officer
(Principal Accounting and Financial
Officer)
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan have 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 8th day of February, 2007.
PERIGO COMPANY PROFIT-SHARING AND
INVESTMENT PLAN
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 Joseph C. Papa, 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 8th day of February, 2007.
/s/ Joseph C. Papa /s/ Judy L. Brown
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Joseph C. Papa Judy L. Brown
President, Chief Executive Officer and Director Executive Vice President and
Chief Financial Officer
(Principal Accounting and Financial Officer)
/s/ Moshe Arkin /s/ Laurie Brlas
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Moshe Arkin Laurie Brlas
Vice Chairman and Director Director
S-1
/s/ Gary M. Cohen /s/ Larry D. Fredricks
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Gary M. Cohen Larry D. Fredricks
Director Director
/s/ David T. Gibbons /s/ Ran Gottfried
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David T. Gibbons Ran Gottfried
Executive Chairman and Director Director
/s/ Michael J. Jandernoa /s/ Gary K. Kunkle, Jr.
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Michael J. Jandernoa Gary K. Kunkle, Jr.
Director Director
/s/ Herman Morris, Jr
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Herman Morris, Jr.
Director
S-2
INDEX TO EXHIBITS
Exhibit Number Description of Document
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 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.
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