As filed with the Securities and Exchange Commission on November 14, 2002
Registration No. 333-________
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 NON-QUALIFIED STOCK OPTION PLAN FOR DIRECTORS
(Full title of the plan)
John R. Nichols
Vice President and General Counsel
Perrigo Company
515 Eastern Avenue
Allegan, Michigan 49010
Telephone: (269) 673-8451
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
George C. McKann, Esq.
Gardner, Carton & Douglas
321 North Clark Street, Suite 2900
Chicago, Illinois 60610
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Price Aggregate Offering Price Registration Fee
---------------- ------------ ------------------------ ------------------------ ----------------
Common Stock (without par value) (1)(2)
- Reserved and not subject to awards
outstanding under the Plan 244,644 $12.76 (4) $3,121,658 $288
- Issuable pursuant to awards
outstanding under the Plan 112,356 $8.78 (5) $986,486 $ 91
------- =---
Total 357,000 (3) $379
======= ====
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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. ss. 230.416.
(2) Includes associated rights ("Rights") to purchase Series A Junior
Participating Preferred Stock of the Registrant that will not be
exercisable or evidenced separately from the Common Stock of the Registrant
prior to the occurrence of certain events.
(3) Amount represents the number of shares issuable pursuant to the Plan in
addition to the 168,000 shares (as adjusted to reflect the 2-for-1 stock
split effective August 26, 1993) registered on Registration Statement No.
33-46264.
(4) 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 National Market on November 11, 2002.
(5) In accordance with Rule 457(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 weighted average exercise price of
$8.78 per share.
PERRIGO COMPANY
REGISTRATION STATEMENT ON FORM S-8
INCORPORATION BY REFERENCE OF EARLIER REGISTRATION STATEMENTS ON FORM S-8
Perrigo Company ("Registrant" or the "Company") has earlier filed a
registration statement on Form S-8 (File No. 33-46264) relating to the Perrigo
Company Non-Qualified Stock Option Plan for Directors (the "Earlier Registration
Statement"). This Registration Statement registers additional shares for
offering 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
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 June 29, 2002;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 28, 2002;
3. The Registrant's Current Report on Form 8-K filed on October 29,
2002; and
4. 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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 209 of the Michigan Business Corporation Act (the "MBCA")
permits a corporation to include in its Articles of Incorporation a provision
that eliminates or limits the personal liability of a director to the
corporation or its shareholders for money damages for breach of the director's
fiduciary duty, except: (i) for any breach of the director's duty of loyalty to
the corporation or its shareholders; (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law;
(iii) for a violation of Section 551(1) of the MBCA, which includes, among other
things, the improper payment of a dividend; or (iv) for any transaction from
which a
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director derived an improper personal benefit. The Registrant's Articles
of Incorporation limit the liability of directors to the full extent permitted
by Section 209 of the MBCA.
Section 561 of the MBCA provides that a corporation may indemnify an
officer or director against expenses, including attorneys' fees, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
in connection with any threatened, pending or completed legal action, suit or
proceeding (other than an action by or in the right of the corporation) in which
he is involved by reason of his relationship with the corporation, provided
(unless otherwise ordered by a court) that a determination has been made that he
acted in good faith and in a manner that he reasonably believed to be in the
best interests of the corporation. Such determination must be made by: (i) a
majority vote of a quorum composed of directors not parties or threatened to be
made parties to the action, suit or proceeding; provided, however, that if such
quorum cannot be obtained, then by a majority vote of a committee duly
designated by the board and consisting of two or more directors not at the time
parties or threatened to be made parties to the action, suit or proceeding; or
(ii) independent directors who are not parties or threatened to be made parties
to the action, suit or proceeding. However, if the legal action, suit or
proceeding involving him is by or in the name of the corporation, Section 562 of
the MBCA restricts the foregoing right of indemnification to expenses and
amounts paid in settlement actually and reasonably incurred and provides that he
not be indemnified for amounts as to which he has been adjudged liable to the
corporation unless the court conducting the proceeding or another court of
competent jurisdiction otherwise determines. To the extent that an officer or
director is successful on the merits or otherwise in any legal action, suit or
proceeding, Section 563 of the MBCA provides that he shall be indemnified
against all actual and reasonable expenses incurred by him in connection with
that legal action, suit or proceeding. The Registrant's Articles of
Incorporation provide that the Registrant shall indemnify officers and directors
to the full extent permitted by law. In certain circumstances, the MBCA permits
advances to cover such expenses before a final determination that
indemnification is permissible or required upon receipt of 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 has
not met the applicable standard of conduct.
Indemnification under the MBCA is not exclusive of other rights to
indemnification to which a person may be entitled under the Registrant's
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 Registrant has a policy of directors' liability insurance, which
insures the directors and officers against the cost of defense, settlement or
payment of a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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 Amendment No. 2 to
Registration Statement No. 33-43834 filed on September 23,
1993
4.2 Restated Bylaws of Registrant, dated April 10, 1996, as
amended, incorporated by reference from Registrant's Form 10-K
filed on September 6, 2000
4.3 Shareholders' Rights Plan, incorporated by reference from
Registrant's Form 8-K filed on April 10, 1996
4.4 Perrigo Company Non-Qualified Stock Option Plan for Directors,
as amended, incorporated by reference from Appendix B to
Registrant's Annual Meeting Proxy Statement filed on August
18, 2000
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5.1* Opinion of John R. Nichols, Vice President and General Counsel
of Registrant, regarding legality of securities
23.1* Consent of BDO Seidman, LLP
23.2* Consent of John R. Nichols, Vice President and General Counsel
of Registrant (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 periodic
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 provisions described in Item 6 of this
Registration Statement, 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
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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.
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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 14th day of
November, 2002.
PERRIGO COMPANY
By: /s/ Douglas R. Schrank
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Douglas R. Schrank
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, Douglas R. Schrank or
John R. Nichols, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him and in his
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 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 14th day of November, 2002.
/s/ David T. Gibbons /s/ Douglas R. Schrank
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David T. Gibbons Douglas R. Schrank
President and Chief Executive Officer Executive Vice President and Chief Financial Officer
Director (Principal Financial and Accounting Officer)
/s/ Michael J. Jandernoa /s/ F. Folsom Bell
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Michael J. Jandernoa F. Folsom Bell
Chairman of the Board of Directors Director
/s/ Peter R. Formanek /s/ Larry D. Fredricks
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Peter R. Formanek Larry D. Fredricks
Director Director
/s/ Richard G. Hansen /s/ L.R. Jalenak, Jr.
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Richard G. Hansen L.R. Jalenak, Jr.
Director Director
/s/ Herman Morris, Jr.
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Herman Morris, Jr.
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 Amendment No. 2 to
Registration Statement No. 33-43834 filed on September 23,
1993
4.2 Restated Bylaws of Registrant, dated April 10, 1996, as
amended, incorporated by reference from Registrant's Form 10-K
filed on September 6, 2000
4.3 Shareholders' Rights Plan, incorporated by reference from
Registrant's Form 8-K filed on April 10, 1996
4.4 Perrigo Company Non-Qualified Stock Option Plan for Directors,
as amended, incorporated by reference from Appendix B to
Registrant's Annual Meeting Proxy Statement filed on August
18, 2000
5.1* Opinion of John R. Nichols, Vice President and General Counsel
of Registrant, regarding legality of securities
23.1* Consent of BDO Seidman, LLP
23.2* Consent of John R. Nichols, Vice President and General Counsel
of Registrant (included in exhibit 5.1)
24.1* Powers of Attorney (included on signature page)
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*Filed herewith