PERRIGO Co plc S-3ASR, filed Jun 12, 2020
PERRIGO Co plc (PRGO)
Table of Contents
As filed with the Securities and Exchange Commission on June 12, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PERRIGO COMPANY PLC
PERRIGO FINANCE UNLIMITED COMPANY
(Exact name of registrant as specified in its charter)
| Ireland | Not Applicable | |
| Ireland | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification Number) |
The Sharp Building
Hogan Place
Dublin 2, Ireland D02 TY74
+353 1 7094000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Todd W. Kingma, Esq.
Executive Vice President, General Counsel and Secretary
Perrigo Company plc
515 Eastern Avenue, Allegan, Michigan 49010
(269) 673-8451
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Mark Hayek, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
(212) 859-8000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B). ☐
CALCULATION OF REGISTRATION FEE
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| Title of each class of securities to be registered | Amount to be registered(1) |
Proposed maximum offering price per unit(1) |
Proposed maximum aggregate offering price(1) |
Amount of registration fee(1)(2) | ||||
| Debt Securities of Perrigo Company plc |
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| Debt Securities of Perrigo Finance Unlimited Company |
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| Ordinary Shares, €0.001 nominal value, of Perrigo Company plc |
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| Preferred Shares, $0.0001 nominal value, of Perrigo Company plc |
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| Guarantees by Perrigo Company plc of Debt Securities(3) |
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| Guarantees by Perrigo Finance Unlimited Company of Debt Securities(3) |
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| (1) | An indeterminate amount of securities as may from time to time be issued at indeterminate prices is being registered pursuant to this registration statement. |
| (2) | In accordance with Rule 456(b) of the Securities Act of 1933, as amended (the “Securities Act”), the registrants are deferring payment of all of the registration fees and are omitting this information in reliance on Rule 456(b) and Rule 457(r) of the Securities Act. Registration fees will be paid subsequently on a “pay as you go” basis. |
| (3) | Pursuant to Rule 457(n) under the Securities Act, no additional registration fee is being paid in respect of the guarantees. The guarantees do not trade separately. |
Table of Contents
PROSPECTUS
Perrigo Company plc
Perrigo Finance Unlimited Company
Debt Securities
Guarantees of Debt Securities
Ordinary Shares
Preferred Shares
Perrigo Company plc may from time to time issue debt securities, including convertible debt securities, ordinary shares, nominal value €0.001 per share, and preferred shares, nominal value $0.0001 per share, including convertible preferred shares, described in this prospectus in one or more offerings and may guarantee debt securities issued by Perrigo Finance Unlimited Company under this prospectus. Perrigo Finance Unlimited Company, an indirect wholly-owned finance subsidiary of Perrigo Company plc, may from time to time issue debt securities described in this prospectus in one or more offerings and may guarantee debt securities, including convertible debt securities, issued by Perrigo Company plc under this prospectus. The accompanying prospectus supplement will specify the terms of the securities, to the extent required. We urge you to read carefully this prospectus, any accompanying prospectus supplement, and any documents we incorporate by reference in this prospectus and any accompanying prospectus supplement before you make your investment decision. Perrigo Company plc’s ordinary shares are listed and traded on the New York Stock Exchange and the Tel Aviv Stock Exchange under the symbol “PRGO.”
We may sell these securities to or through underwriters, dealers and agents, or directly to purchasers, on a delayed or continuous basis or through any other means described in this prospectus under “Plan of Distribution” and in supplements to this prospectus in connection with a particular offering of securities.
This prospectus describes some of the general terms that may apply to the securities and the general manner in which they may be offered. The specific terms of the securities and the specific manner in which they may be offered, including the names of any underwriters, dealers or agents, will be described in the applicable supplement to this prospectus.
Investing in our securities involves risks. You should carefully consider all of the information set forth in this prospectus. In addition, you should carefully consider the risk factors on page 2 of this prospectus and in any accompanying prospectus supplement or any documents we incorporate by reference in this prospectus and any accompanying prospectus supplement, before deciding to invest in any of our securities.
Neither the Securities and Exchange Commission nor any state securities commission or other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 12, 2020.
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Table of Contents
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the “SEC,” as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, or the “Securities Act,” in the case of Perrigo Company plc, and an indirect wholly-owned subsidiary of a well-known seasoned issuer, in the case of Perrigo Finance Unlimited Company, utilizing a “shelf” registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more offerings. No limit exists on the aggregate amount of securities we may sell pursuant to the registration statement.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. Any prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus, any prospectus supplement to this prospectus, any documents that we incorporate by reference in this prospectus and any prospectus supplement and the additional information described below under “Where You Can Find More Information” before making an investment decision. You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information in this prospectus, any accompanying prospectus supplement or any documents we incorporate by reference in this prospectus or in any prospectus supplement is accurate as of any date other than the date on the front of those documents. Our business, financial condition, results of operations and prospects or other information concerning us may have changed since that date.
In this prospectus, unless otherwise indicated or unless the context otherwise requires, “the Company,” “we,” “us,” “our” and similar terms refer to Perrigo Company plc, a public limited company incorporated under the laws of Ireland, and its consolidated subsidiaries, including Perrigo Finance Unlimited Company (formerly known as Perrigo Finance plc). References to “Perrigo” under “Description of Ordinary Shares” refer to Perrigo Company plc only, and not any of its subsidiaries.
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We are dedicated to making lives better by bringing “Quality, Affordable Self-Care Products™” that consumers trust everywhere they are sold. We are a leading provider of over-the-counter (“OTC”) health and wellness solutions that enhance individual well-being by empowering consumers to proactively prevent or treat conditions that can be self-managed. We are also a leading producer of generic prescription pharmaceutical topical products such as creams, lotions, gels, and nasal sprays. We are headquartered in Ireland and sell our products primarily in North America and Europe as well as in other markets around the world.
We have three reportable segments, aligned primarily by type of product: Consumer Self-Care Americas, Consumer Self-Care International, and Prescription Pharmaceuticals. This segment structure is consistent with the way our management makes operating decisions, allocates resources and manages the growth and profitability of our business.
Perrigo Company plc was incorporated under the laws of Ireland on June 28, 2013, and became the successor registrant of Perrigo Company on December 18, 2013 in connection with the consummation of the acquisition of Elan Corporation, plc (“Elan”). Our principal executive offices are located at the Sharp Building, Hogan Place, Dublin 2, Ireland, D02 TY74, and our administrative offices are located at 515 Eastern Avenue, Allegan, MI. Our telephone number is +353 1 7094000. Our website address is www.perrigo.com, where we make available free of charge our reports on Forms 10-K, 10-Q and 8-K, including any amendments to these reports, as soon as reasonably practicable after they are electronically filed with or furnished to the SEC. Information contained on our website is not incorporated by reference in and does not constitute part of this prospectus. These filings are also available to the public at www.sec.gov.
PERRIGO FINANCE UNLIMITED COMPANY
Perrigo Finance Unlimited Company was incorporated under the laws of Ireland on October 19, 2004, and was previously known as Perrigo Finance plc until it re-registered as a public unlimited company on October 29, 2015. Perrigo Finance Unlimited Company is an indirect wholly-owned finance subsidiary of Perrigo Company plc whose primary purpose is to finance the business and operations of Perrigo Company plc and its affiliates. An unlimited company, such as Perrigo Finance Unlimited Company, has no limit on the liability of the shareholders, and creditors have recourse to the shareholders in respect of liabilities that may be owed by the company which the company failed to discharge. Perrigo Company, a Michigan corporation that is an indirect wholly-owned subsidiary of Perrigo Company plc, is the sole shareholder of Perrigo Finance Unlimited Company.
Before deciding to invest in our securities, you should carefully consider the risk factors and forward-looking statements described in Part I, Item 1A of our most recent Annual Report on Form 10-K for the year ended December 31, 2019 and Part II, Item 1A of our Quarterly Report on Form 10-Q for the fiscal quarter ended March 28, 2020 (both of which are incorporated by reference herein). In addition, you should carefully consider the risk factors and other information in any accompanying prospectus supplement or any documents we incorporate by reference in this prospectus or in any accompanying prospectus supplement, before deciding to invest in any of our securities. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business operations.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and any documents we incorporate by reference herein or therein and oral statements made from time to time by us may contain so-called “forward-looking statements” (within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act). These statements relate to future events or our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our, or our industry’s actual results, levels of activity, performance or achievements to be materially different from those expressed or implied by any forward-looking statements. In particular, statements about our expectations, beliefs, plans, objectives, assumptions, future events or future performance contained in this prospectus, any prospectus supplement and any documents we incorporate by reference herein or therein are forward-looking statements. In some cases, forward-looking statements can be identified by terminology such as “may,” “will,” “could,” “would,” “should,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “forecast,” “predict,” “potential” or the negative of those terms or other comparable terminology. One should carefully evaluate these forward-looking statements in light of factors, including risk factors, described under “Risk Factors” above and in any applicable prospectus supplement and in the documents incorporated by reference herein or in any prospectus supplement in which we discuss in more detail various important factors that could cause actual results to differ from expected or historic results. We have based these forward-looking statements on our current expectations, assumptions, estimates and projections. While we believe these expectations, assumptions, estimates and projections are reasonable, such forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond our control. These and other important factors may cause actual results, performance or achievements to differ materially from those expressed or implied by these forward-looking statements. The forward-looking statements in this prospectus are made only as of the date hereof, and unless otherwise required by applicable securities laws, we disclaim any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be set forth in the filings that will be incorporated by reference herein as described below under “Where You Can Find More Information” and in any prospectus supplement hereto.
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Except as may be otherwise set forth in the applicable prospectus supplement accompanying this prospectus, we plan to add the net proceeds we receive from sales of the securities offered by this prospectus to our general funds and to use the funds for general corporate purposes. These could include capital expenditures; the repayment of debt; investment in subsidiaries; additions to working capital; the repurchase, redemption or retirement of securities; acquisitions and other business opportunities. We will provide additional information about the use of net proceeds from the sale of our securities that we may offer from time to time pursuant to this prospectus in the applicable prospectus supplement relating to a particular offering.
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Perrigo Company plc may issue from time to time, in one or more offerings, debt securities, including convertible debt securities, ordinary shares, nominal value €0.001 per share, and preferred shares, nominal value $0.0001 per share, including convertible preferred shares, and it may guarantee debt securities issued by Perrigo Finance Unlimited Company under this prospectus. Perrigo Finance Unlimited Company may issue from time to time, in one or more offerings, debt securities, and it may guarantee debt securities, including convertible debt securities, issued by Perrigo Company plc under this prospectus.
Perrigo Company plc’s ability to issue preferred shares is limited so long as its ordinary shares are listed on the Tel Aviv Stock Exchange. We will set forth in the applicable prospectus supplement a description of debt securities, including convertible debt securities, ordinary shares and preferred shares, including convertible preferred shares, which may be offered under this prospectus. The terms of the offering of debt securities, including convertible debt securities, guarantees, ordinary shares and preferred shares, including convertible preferred shares, the initial issue price and the net proceeds to us will be contained in the prospectus supplement and other offering material relating to such offer. The prospectus supplement may also add, update or change information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities.
DESCRIPTION OF ORDINARY SHARES
The following description of Perrigo’s share capital is a summary. This summary does not purport to be complete and is qualified in its entirety by reference to the Irish Companies Act 2014 (the “Companies Act”) and the complete text of Perrigo’s memorandum and articles of association, included as exhibits to our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, which is incorporated by reference in this prospectus supplement. You should read those laws and documents carefully.
Capital Structure
Authorized Share Capital
Our authorized share capital of Perrigo is €10,000,000 and $1,000, divided into 10,000,000,000 ordinary shares of €0.001 each and 10,000,000 preferred shares of $0.0001 each.
We may issue shares subject to the maximum authorized share capital contained in our memorandum and articles of association. The authorized share capital may be increased or reduced by a resolution approved by a simple majority of the votes of a company’s shareholders cast at a general meeting (referred to under Irish law as an “ordinary resolution”). The shares comprising the authorized share capital of Perrigo may be divided into shares of such nominal value as the resolution shall prescribe. As a matter of Irish company law, the directors of a company may authorize the issuance of new ordinary or preferred shares without shareholder approval once authorized to do so by the articles of association or by an ordinary resolution adopted by the shareholders at a general meeting. The authorization may be granted for a maximum period of five years, at which point it must be renewed by the shareholders by an ordinary resolution. The articles of association of Perrigo authorize the board of directors of Perrigo to issue new ordinary or preferred shares without shareholder approval for a period of five years from the date of adoption of such articles of association. This initial five-year authorization period expired on December 17, 2018, but was renewed by Perrigo’s shareholders at each of the 2018 and 2019 annual general meetings of Perrigo. Most recently, Perrigo’s shareholders adopted an ordinary resolution at the 2020 annual general meeting of Perrigo on May 6, 2020 authorizing the board of directors to issue up to an aggregate nominal amount of €44,922 (44,921,795 shares) (being equivalent to approximately 33% of the aggregate nominal value of the issued share capital of Perrigo as of March 9, 2020) for a period of 18 months from March 9, 2020.
The rights and restrictions to which the ordinary shares will be subject are prescribed in Perrigo’s articles of association. Perrigo’s articles of association permit the board of directors, without shareholder approval, to
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determine certain terms of each series of the preferred shares issued by Perrigo, including the number of shares, designations, dividend rights, liquidation and other rights and redemption, repurchase or exchange rights.
Irish law does not recognize fractional shares held of record. Accordingly, Perrigo’s articles of association do not provide for the issuance of fractional shares of Perrigo, and the official Irish register of Perrigo does not reflect any fractional shares.
Whenever an alteration or reorganization of the share capital of Perrigo would result in any Perrigo shareholder becoming entitled to fractions of a share, the Perrigo board of directors may, on behalf of those shareholders that would become entitled to fractions of a share, arrange for the sale of the shares representing fractions and the distribution of the net proceeds of the sale in due proportion among the shareholders who would have been entitled to the fractions. For the purpose of any such sale, the Board may authorize any person to transfer the shares representing fractions to the purchaser, who shall not be bound to see to the application of the purchase money, nor shall the purchaser’s title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale.
Preemption Rights, Share Warrants and Options
Under Irish law, certain statutory preemption rights apply automatically in favor of shareholders where shares are to be issued for cash. However, in December 2013, Perrigo opted out of these preemption rights in its articles of association as permitted under Irish company law. Because Irish law requires this opt-out to be renewed every five years by a resolution approved by not less than 75% of the votes of the shareholders of Perrigo cast at a general meeting (referred to under Irish law as a “special resolution”), Perrigo’s articles of association provide that this opt-out must be so renewed every five years. If the opt-out is not renewed, shares issued for cash must be offered to existing shareholders of Perrigo on a pro rata basis to their existing shareholding before the shares can be issued to any new shareholders. The statutory preemption rights do not apply where shares are issued for non-cash consideration (such as in a share-for-share acquisition) and do not apply to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution) or where shares are issued pursuant to an employee option or similar equity plan. Perrigo’s shareholders passed a special resolution at each of the 2018 and 2019 annual general meetings of Perrigo and most recently at the 2020 annual general meeting of Perrigo on May 6, 2020 authorizing the board of directors to opt out of preemption rights with respect to the issuance of equity securities up to an aggregate nominal value of €13,613 (13,612,665 shares) (being equivalent to approximately 10% of the aggregate nominal value of the issued ordinary share capital of Perrigo as of May 6, 2020) for a period of 18 months from April 26, 2019 (provided that with respect to 6,806,333 of such shares (being equivalent to approximately 5% of the issued ordinary share capital of Perrigo as of March 9, 2020), such allotment is to be used for the purposes of an acquisition or a specified capital investment).
The memorandum and articles of association of Perrigo provide that, subject to any shareholder approval requirement under any laws, regulations or the rules of any stock exchange to which Perrigo is subject, the board is authorized, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the board deems advisable, options to purchase such number of shares of any class or classes or of any series of any class as the board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. The Companies Act provides that directors may issue share warrants or options without shareholder approval once authorized to do so by the articles of association or an ordinary resolution of shareholders. Perrigo is subject to the rules of the New York Stock Exchange that require shareholder approval of certain share issuances. Perrigo’s board of directors may authorize the issuance of shares upon exercise of warrants or options without shareholder approval or authorization (up to the relevant authorized share capital limit). In connection with the completion of the Elan acquisition, Perrigo assumed Elan’s existing obligations to deliver shares under its equity incentive plans, pursuant to the terms thereof.
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Dividends
Under Irish law, dividends and distributions may only be made from distributable reserves. Distributable reserves generally means accumulated realized profits less accumulated realized losses and includes reserves created by way of capital reduction. In addition, no distribution or dividend may be made unless the net assets of Perrigo are equal to, or in excess of, the aggregate of Perrigo’s called up share capital plus undistributable reserves and the distribution does not reduce Perrigo’s net assets below such aggregate. Undistributable reserves include the share premium account, the capital redemption reserve fund and the amount by which Perrigo’s accumulated unrealized profits, so far as not previously utilized by any capitalization, exceed Perrigo’s accumulated unrealized losses, so far as not previously written off in a reduction or reorganization of capital.
The determination as to whether or not Perrigo has sufficient distributable reserves to fund a dividend must be made by reference to “relevant accounts” of Perrigo. The “relevant accounts” will be either the last set of unconsolidated annual audited financial statements or other financial statements properly prepared in accordance with the Companies Act that give a “true and fair view” of Perrigo’s unconsolidated financial position and accord with accepted accounting practice. The relevant accounts must be filed in the Companies Registration Office (the official public registry for companies in Ireland).
Perrigo’s memorandum and articles of association authorize the directors to declare dividends to the extent they appear justified by profits without shareholder approval. The board of directors may also recommend a dividend to be approved and declared by the Perrigo shareholders at a general meeting. The board of directors may direct that the payment be made by distribution of assets, shares or cash and no dividend issued may exceed the amount recommended by the directors. Dividends may be declared and paid in the form of cash or non-cash assets and may be paid in U.S. dollars or any other currency. All holders of ordinary shares of Perrigo will participate pro rata in respect of any dividend which may be declared in respect of ordinary shares by Perrigo.
The directors of Perrigo may deduct from any dividend payable to any shareholder any amounts payable by such shareholder to Perrigo in relation to the shares of Perrigo.
The directors may also authorize Perrigo to issue shares with preferred rights to participate in dividends declared by Perrigo. The holders of preferred shares may, depending on their terms, rank senior to the Perrigo ordinary shares in terms of dividend rights and/or be entitled to claim arrears of a declared dividend out of subsequently declared dividends in priority to ordinary shareholders.
Share Repurchases, Redemptions and Conversions
Overview
Perrigo’s memorandum and articles of association provide that any ordinary share which Perrigo has agreed to acquire shall be deemed to be a redeemable share, unless the Board resolves otherwise. Accordingly, for Irish company law purposes, the repurchase of ordinary shares by Perrigo will technically be effected as a redemption of those shares as described below under “—Share Repurchases, Redemptions and Conversions—Repurchases and Redemptions by Perrigo.” If the articles of association of Perrigo did not contain such provision, all repurchases by Perrigo would be subject to many of the same rules that apply to purchases of Perrigo ordinary shares by subsidiaries described below under “—Share Repurchases, Redemptions and Conversions—Purchases by Subsidiaries of Perrigo” including the shareholder approval requirements described below and the requirement that any on-market purchases be effected on a “recognized stock exchange.” Neither Irish law nor any constituent document of Perrigo places limitations on the right of nonresident or foreign owners to vote or hold Perrigo ordinary shares. Except where otherwise noted, references elsewhere in this prospectus supplement to repurchasing or buying back ordinary shares of Perrigo refer to the redemption of ordinary shares by Perrigo or the purchase of ordinary shares of Perrigo by a subsidiary of Perrigo, in each case in accordance with the Perrigo memorandum and articles of association and Irish company law as described below.
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Repurchases and Redemptions by Perrigo
Under Irish law, a company may issue redeemable shares and redeem them out of distributable reserves or the proceeds of a new issue of shares for that purpose. Perrigo may only issue redeemable shares if the nominal value of the issued share capital that is not redeemable is not less than 10% of the nominal value of the total issued share capital of Perrigo. All redeemable shares must also be fully-paid, and the terms of redemption of the shares must provide for payment on redemption. Redeemable shares may, upon redemption, be cancelled or held in treasury. Based on the provision of Perrigo’s articles described above, shareholder approval will not be required to redeem Perrigo ordinary shares.
Perrigo may also be given an additional general authority by its shareholders to purchase its own shares on-market which would take effect on the same terms and be subject to the same conditions as applicable to purchases by Perrigo’s subsidiaries as described below.
Repurchased and redeemed shares may be cancelled or held as treasury shares. The nominal value of treasury shares held by Perrigo at any time must not exceed 10% of the nominal value of the issued share capital of Perrigo. Perrigo may not exercise any voting rights in respect of any shares held as treasury shares. Treasury shares may be cancelled by Perrigo or re-issued subject to certain conditions.
Purchases by Subsidiaries of Perrigo
Under Irish law, an Irish or non-Irish subsidiary may purchase shares of Perrigo either on-market or off-market. For a subsidiary of Perrigo to make on-market purchases of Perrigo ordinary shares, the shareholders of Perrigo must provide general authorization for such purchase by way of ordinary resolution. However, as long as this general authority has been granted, no specific shareholder authority for a particular on-market purchase by a subsidiary of Perrigo ordinary shares is required. For an off-market purchase by a subsidiary of Perrigo, the proposed purchase contract must be authorized by special resolution of the shareholders before the contract is entered into. The person whose shares are to be bought back cannot vote in favor of the special resolution and, for at least 21 days prior to the special resolution being passed, the purchase contract must be on display or must be available for inspection by shareholders at the registered office of Perrigo.
In order for a subsidiary of Perrigo to make an on-market purchase of Perrigo’s ordinary shares, such ordinary shares must be purchased on a “recognized stock exchange.” The New York Stock Exchange, on which the ordinary shares of Perrigo are listed, is specified as a recognized stock exchange for this purpose by Irish company law. The Tel Aviv Stock Exchange, on which the ordinary shares of Perrigo are also listed, is not a recognized stock exchange for the purposes of Irish company law.
The number of ordinary shares in Perrigo held by the subsidiaries of Perrigo at any time will count as treasury shares and will be included in any calculation of the permitted treasury share threshold of 10% of the nominal value of the issued share capital of Perrigo. While a subsidiary holds ordinary shares of Perrigo, it cannot exercise any voting rights in respect of those ordinary shares. The acquisition of the ordinary shares of Perrigo by a subsidiary must be funded out of distributable reserves of the subsidiary.
Lien on Ordinary Shares, Calls on Ordinary Shares and Forfeiture of Ordinary Shares
Perrigo’s articles of association provide that Perrigo will have a first and paramount lien on every ordinary share for all moneys payable, whether presently due or not, payable in respect of such Perrigo ordinary share. Subject to the terms of their allotment, directors may call for any unpaid amounts in respect of any ordinary shares to be paid, and if payment is not made, the ordinary shares may be forfeited. These provisions are standard in the articles of association of an Irish company limited by ordinary shares such as Perrigo and will only be applicable to ordinary shares of Perrigo that have not been fully paid up.
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Consolidation and Division; Subdivision
Under its articles of association, Perrigo may, by ordinary resolution, consolidate and divide all or any of its share capital into shares of larger nominal value than its existing shares or subdivide its shares into smaller amounts than is fixed by its memorandum of association.
Reduction of Share Capital
Perrigo may, by ordinary resolution, reduce its authorized but unissued share capital in any way. Perrigo also may, by special resolution and subject to confirmation by the Irish High Court, reduce or cancel its issued share capital in any manner permitted by the Companies Act.
Annual Meetings of Shareholders
Perrigo is required to hold an annual general meeting at intervals of no more than 15 months, provided that an annual general meeting is held in each calendar year following the first annual general meeting and no more than nine months after Perrigo’s fiscal year-end.
Notice of an annual general meeting must be given to all Perrigo shareholders and to the auditors of Perrigo. The articles of association of Perrigo provide for a minimum notice period of 21 days, which is the minimum permitted under Irish law.
The only matters which must, as a matter of Irish company law, be transacted at an annual general meeting are the presentation of the annual accounts, balance sheet and reports of the directors and auditors, the appointment of new auditors and the fixing of the auditor’s remuneration (or delegation of same). If no resolution is made in respect of the reappointment of an existing auditor at an annual general meeting, the existing auditor will be deemed to have continued in office.
At any annual general meeting, only such business may be conducted as has been brought before the meeting (i) in the notice of the meeting, (ii) by or at the direction of the board of directors, (iii) in certain circumstances, at the direction of the Irish High Court, (iv) as required by law or (v) such business that the chairman of the meeting determines is properly within the scope of the meeting.
Extraordinary General Meetings of Shareholders
Extraordinary general meetings of Perrigo may be convened by (i) the board of directors, (ii) on requisition of the shareholders holding not less than 10% of the paid up share capital of Perrigo carrying voting rights or (iii) on requisition of Perrigo’s auditors. Extraordinary general meetings are generally held for the purposes of approving shareholder resolutions as may be required from time to time. At any extraordinary general meeting, only such business shall be conducted as is set forth in the notice thereof.
Notice of an extraordinary general meeting must be given to all Perrigo shareholders and to the auditors of Perrigo. Under Irish law and Perrigo’s articles of association, the minimum notice periods are 21 days’ notice in writing for an extraordinary general meeting to approve a special resolution and 14 days’ notice in writing for any other extraordinary general meeting.
In the case of an extraordinary general meeting convened by shareholders of Perrigo, the proposed purpose of the meeting must be set out in the requisition notice. Upon receipt of any such valid requisition notice, the Perrigo board of directors has 21 days to convene a meeting of Perrigo shareholders to vote on the matters set out in the requisition notice. This meeting must be held within two months of the receipt of the requisition notice. If the board of directors does not convene the meeting within such 21-day period, the requisitioning shareholders, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, which meeting must be held within three months of Perrigo’s receipt of the requisition notice.
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If the board of directors becomes aware that the net assets of Perrigo are not greater than half of the amount of Perrigo’s called-up share capital, the directors of Perrigo must convene an extraordinary general meeting of Perrigo shareholders not later than 28 days from the date that they learn of this fact to consider how to address the situation.
Quorum for General Meetings
The articles of association of Perrigo provide that no business shall be transacted at any general meeting unless a quorum is present. A quorum shall be one or more persons holding or representing by proxy more than 50% of the total issued voting rights of Perrigo ordinary shares.
Voting
Perrigo’s articles of association provide that except where a greater majority is required by the Companies Act, any question, business or resolution proposed at any general meeting shall be decided by a simple majority of the votes cast.
At any meeting of Perrigo, all resolutions put to the shareholders will be decided on a poll.
In accordance with the articles of association of Perrigo, the directors of Perrigo may from time to time authorize Perrigo to issue preferred shares. These preferred shares may have a vote for each such share. Treasury shares or shares of Perrigo that are held by subsidiaries of Perrigo will not be entitled to be voted at general meetings of shareholders.
Irish company law requires special resolutions of the shareholders at a general meeting to approve certain matters. Examples of matters requiring special resolutions include:
| • | amending the objects or memorandum of association of Perrigo; |
| • | amending the articles of association of Perrigo; |
| • | approving a change of name of Perrigo; |
| • | authorizing the entering into of a guarantee or provision of security in connection with a loan, quasi-loan or credit transaction to a director or connected person; |
| • | opting out of preemption rights on the issuance of new shares for cash; |
| • | re-registration of Perrigo from a public limited company to a private company; |
| • | variation of class rights attaching to classes of shares (where the articles of association do not provide otherwise); |
| • | purchase of own shares off-market; |
| • | reduction of issued share capital; |
| • | sanctioning a compromise/Scheme of Arrangement; |
| • | resolving that Perrigo be wound up by the Irish courts; |
| • | resolving in favor of a shareholders’ voluntary winding-up; |
| • | re-designation of shares into different share classes; and |
| • | setting the re-issue price of treasury shares. |
Variation of Rights Attaching to a Class or Series of Shares
Under the Perrigo articles of association and the Companies Act, any variation of class rights attaching to the issued shares of Perrigo must be approved in writing by holders of three-quarters of the issued shares in that
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class or with the sanction of a special resolution passed at a separate general meeting of the holders of the shares of that class, provided that, if the relevant class of holders has only one holder, that person present in person or by proxy shall constitute the necessary quorum.
The provisions of the articles of association of Perrigo relating to general meetings apply to general meetings of the holders of any class of shares except that the necessary quorum is determined in reference to the shares of the holders of the class.
Records Dates
Perrigo’s Articles of Association provide that its board of directors may set a record date for the purposes of determining which shareholders are entitled to notice of, or to vote at, a general meeting and the record date shall not be more than sixty days prior to the date of the meeting. If no record date is fixed by the board of directors, the date immediately preceding the date on which notice of the meeting is given will be the record date for such determination of members.
Inspection of Books and Records
Under Irish law, shareholders have the right to: (i) receive a copy of the memorandum and articles of association of Perrigo and any act of the Irish Government which alters the memorandum of Perrigo; (ii) inspect and obtain copies of the minutes of general meetings and resolutions of Perrigo; (iii) inspect and receive a copy of the register of shareholders, register of directors and secretaries, register of directors’ interests and other statutory registers maintained by Perrigo; (iv) receive copies of balance sheets and directors’ and auditors’ reports which have previously been sent to shareholders prior to an annual general meeting; and (v) receive balance sheets of any subsidiary of Perrigo which have previously been sent to shareholders prior to an annual general meeting for the preceding ten years. The auditors of Perrigo will also have the right to inspect all books, records and vouchers of Perrigo. The auditors’ report must be circulated to the shareholders with Perrigo’s financial statements prepared in accordance with Irish law 21 days before the annual general meeting and must be read to the shareholders at Perrigo’s annual general meeting.
Acquisitions
An Irish public limited company may be acquired in a number of ways, including:
| • | a court-approved Scheme of Arrangement under the Companies Act. A Scheme of Arrangement with shareholders requires a court order from the Irish High Court and the approval of a majority in number representing 75% in value of the shareholders present and voting in person or by proxy at a meeting called to approve the scheme; |
| • | through a tender or takeover offer by a third party for all of the shares of Perrigo. Where the holders of 80% or more of Perrigo’s ordinary shares have accepted an offer for their shares in Perrigo, the remaining shareholders may also be statutorily required to transfer their shares. If the bidder does not exercise its “squeeze out” right, then the non-accepting shareholders also have a statutory right to require the bidder to acquire their shares on the same terms. If shares of Perrigo were to be listed on the Euronext Dublin or another regulated stock exchange in the European Union, this threshold would be increased to 90%; and |
| • | it is also possible for Perrigo to be acquired by way of a transaction with an EU-incorporated company under the EU Cross-Border Mergers Directive (EU) 2019/2121 and the Irish Communities (Cross-Border Mergers) Regulations 2008 (as amended). Such a transaction must be approved by a special resolution and by the Irish High Court. If Perrigo is being merged with another EU company under the EU Cross-Border Mergers Directive (EU) 2019/2121 and the Irish Communities (Cross-Border Mergers) Regulations 2008 (as amended) and the consideration payable to Perrigo shareholders is not all in the form of cash, Perrigo shareholders may be entitled to require their shares to be acquired at fair value for cash. |
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Appraisal Rights
Generally, under Irish law, shareholders of an Irish company do not have dissenters’ or appraisal rights. Under the EU Cross-Border Mergers Directive (EU) 2019/2121 and the Irish Communities (Cross-Border Mergers) Regulations 2008 (as amended) governing the merger of an Irish company limited by shares such as Perrigo and a company incorporated in the European Economic Area (the European Economic Area includes all member states of the European Union and Norway, Iceland and Liechtenstein), a shareholder (i) who voted against the special resolution approving the transaction or (ii) of a company in which 90% of the shares are held by the other party to the transaction has the right to request that the company acquire its shares for cash at a price determined in accordance with the share exchange ratio set out in the merger agreement.
Disclosure of Interests in Shares
Under the Companies Act, Perrigo shareholders must notify Perrigo if, as a result of a transaction, the shareholder will become interested in 3% or more of the shares of Perrigo; or if as a result of a transaction a shareholder who was interested in more than 3% of the shares of Perrigo ceases to be so interested. Where a shareholder is interested in more than 3% of the shares of Perrigo, the shareholder must notify Perrigo of any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction. The relevant percentage figure is calculated by reference to the aggregate nominal value of the shares in which the shareholder is interested as a proportion of the entire nominal value of the issued share capital of Perrigo (or any such class of share capital in issue). Where the percentage level of the shareholder’s interest does not amount to a whole percentage, this figure may be rounded down to the next whole number. Perrigo must be notified within five business days of the transactions or alteration of the shareholder’s interests that gave rise to the notification requirement. If a shareholder fails to comply with these notification requirements, the shareholder’s rights in respect of any Perrigo ordinary shares it holds will not be enforceable, either directly or indirectly. However, such person may apply to the court to have the rights attaching to such shares reinstated.
In addition to these disclosure requirements, Perrigo, under the Companies Act, may, by notice in writing, require a person whom Perrigo knows or has reasonable cause to believe to be, or at any time during the three years immediately preceding the date on which such notice is issued to have been, interested in shares comprised in Perrigo’s relevant share capital to: (i) indicate whether or not it is the case; and (ii) where such person holds or has during that time held an interest in the shares of Perrigo, to provide additional information, including the person’s own past or present interests in shares of Perrigo. If the recipient of the notice fails to respond within the reasonable time period specified in the notice, Perrigo may apply to court for an order directing that the affected shares be subject to certain restrictions, as prescribed by the Companies Act, as follows:
| • | any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued with shares and any issue of shares, shall be void; |
| • | no voting rights shall be exercisable in respect of those shares; |
| • | no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and |
| • | no payment shall be made of any sums due from Perrigo on those shares, whether in respect of capital or otherwise. |
The court may also order that shares subject to any of these restrictions be sold with the restrictions terminating upon the completion of the sale.
In addition, persons or groups (within the meaning of the Exchange Act) beneficially owning 5% or more of Perrigo’s ordinary shares must comply with the reporting requirements under Section 13 of the Exchange Act. In the event Perrigo is in an offer period pursuant to the Takeover Rules (as defined below), accelerated disclosure provisions apply for persons holding an interest in Perrigo securities of 1% or more.
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Anti-Takeover Provisions
Shareholder Rights Plans and Share Issuances
Irish law does not expressly prohibit companies from issuing share purchase rights or adopting a shareholder rights plan as an anti-takeover measure. However, there is no directly relevant case law on the validity of such plans under Irish law.
Perrigo’s Articles of Association allow its board of directors to adopt any shareholder rights plan upon such terms and conditions as the board deems expedient and in Perrigo’s best interest, subject to applicable law, including the Irish Takeover Rules and Substantial Acquisition Rules described below and the requirement for shareholder authorization for the issue of shares described above.
Subject to the Irish Takeover Rules described below and the Companies Act, the Perrigo board of directors also has the power to issue any of Perrigo’s authorized and unissued shares on such terms and conditions as it may determine to be in Perrigo’s best interest. It is possible that the terms and conditions of any issue of shares could discourage a takeover or other transaction that holders of some or a majority of Perrigo’s ordinary shares might believe to be in their best interest or in which holders of Perrigo ordinary shares might receive a premium for their shares over the then-market price of the shares.
Takeover Rules and Substantial Acquisition Rules
A transaction in which a third party seeks to acquire 30% or more of the voting rights of Perrigo will be governed by the Irish Takeover Panel Act 1997 (the “Takeover Panel Act”) and the Irish Takeover Rules 2013 (the “Takeover Rules”) made thereunder and will be regulated by the panel (the “Panel”) pursuant to the Takeover Panel Act. The “General Principles” of the Takeover Rules and certain important aspects of the Takeover Rules are described below.
General Principles
The Takeover Rules are built on the following General Principles which will apply to any transaction regulated by the Panel:
| • | in the event of an offer, all holders of security of the target company should be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; |
| • | the holders of the securities in the target company must have sufficient time and information to enable them to reach a properly informed decision on the offer; where it advises the holders of securities, the board of the target company must give its views on the effects of implementation of the offer on employment, conditions of employment and the locations of the target company’s places of business; |
| • | the board of the target company must act in the interests of the company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the offer; |
| • | false markets must not be created in the securities of the target company, the bidder or of any other company concerned by the offer in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted; |
| • | a bidder must announce an offer only after ensuring that he or she can fulfill in full, any cash consideration, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration; |
| • | a target company must not be hindered in the conduct of its affairs for longer than is reasonable by an offer for its securities; and |
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| • | a substantial acquisition of securities (whether such acquisition is to be effected by one transactions or a series of transaction) shall take place only at an acceptable speed and shall be subject to adequate and timely disclosure. |
Mandatory Bid
Under certain circumstances, a person who acquires shares or other voting rights in Perrigo may be required under the Takeover Rules to make a mandatory cash offer for the remaining outstanding shares in Perrigo at a price not less than the highest price paid for the shares by the acquirer (or any parties acting in concert with the acquirer) during the previous 12 months. This mandatory bid requirement is triggered if an acquisition of shares would increase the aggregate holding of an acquirer (including the holdings of any parties acting in concert with the acquirer) to shares representing 30% or more of the voting rights in Perrigo, unless the Panel otherwise consents. An acquisition of shares by a person holding (together with its concert parties) shares representing between 30% and 50% of the voting rights in Perrigo would also trigger the mandatory bid requirement if, after giving effect to the acquisition, the percentage of the voting rights held by that person (together with its concert parties) would increase by 0.05% within a 12-month period. Any person (excluding any parties acting in concert with the holder) holding shares representing more than 50% of the voting rights of a company is not subject to these mandatory offer requirements in purchasing additional securities.
Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements
If a person makes a voluntary offer to acquire outstanding ordinary shares of Perrigo, the offer price must be no less than the highest price paid for Perrigo ordinary shares by the bidder or its concert parties during the three-month period prior to the commencement of the offer period. The Panel has the power to extend the “look back” period to 12 months if the Panel, taking into account the General Principles, believes it is appropriate to do so.
If the bidder or any of its concert parties has acquired ordinary shares of Perrigo (i) during the period of 12 months prior to the commencement of the offer period which represent more than 10% of the total ordinary shares of Perrigo or (ii) at any time after the commencement of the offer period, the offer must be in cash (or accompanied by a full cash alternative) and the price per Perrigo ordinary share must not be less than the highest price paid by the bidder or its concert parties during, in the case of (i), the 12-month period prior to the commencement of the offer period and, in the case of (ii), the offer period. The Panel may apply this rule to a bidder who, together with its concert parties, has acquired less than 10% of the total ordinary shares of Perrigo in the 12-month period prior to the commencement of the offer period if the Panel, taking into account the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or proposed offer.
Substantial Acquisition Rules
The Takeover Rules also contain rules governing substantial acquisitions of shares which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of Perrigo. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of Perrigo is prohibited, if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of Perrigo and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.
Frustrating Action
Under the Takeover Rules, the Perrigo board of directors is not permitted to take any action which might frustrate an offer for the shares of Perrigo once the board of directors has received an approach which may lead
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to an offer or has reason to believe an offer is imminent, subject to certain exceptions. Potentially frustrating actions such as (i) the issue of shares, options or convertible securities, (ii) material acquisitions or disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any time during which the board has reason to believe an offer is imminent. Exceptions to this prohibition are available where:
| • | the action is approved by Perrigo’s shareholders at a general meeting; or |
| • | the Panel has given its consent, where: |
| • | it is satisfied the action would not constitute frustrating action; |
| • | Perrigo shareholders that hold 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; |
| • | the action is taken in accordance with a contract entered into prior to the announcement of the offer; or |
| • | the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business. |
Certain other provisions of Irish law or the Perrigo memorandum and articles of association may be considered to have anti-takeover effects, including those described under the following captions: “—Capital Structure—Authorized Share Capital” (regarding issuance of preferred shares), “—Preemption Rights, Share Warrants and Options,” “—Disclosure of Interests in Shares.”
Corporate Governance
The articles of association of Perrigo allocate authority over the day-to-day management of Perrigo to the board of directors. The board of directors may then delegate any of its powers, authorities and discretions (with power to sub-delegate) to any committee, consisting of such person or persons (whether directors or not) as it thinks fit, but regardless, the directors will remain responsible, as a matter of Irish law, for the proper management of the affairs of Perrigo. Committees may meet and adjourn as they determine proper. Unless otherwise determined by the board of directors, the quorum necessary for the transactions of business at any committee meeting shall be a majority of the members of such committee then in office unless the committee shall consist of one or two members, in which case one member shall constitute a quorum.
Legal Name; Formation; Fiscal Year; Registered Office
The current legal and commercial name of Perrigo is Perrigo Company plc. Perrigo was incorporated in Ireland on June 28, 2013 as a private limited company, under the name Blisfont Limited (registration number 529592) and changed its name to Perrigo Company Limited on July 30, 2013. Perrigo Company Limited re-registered as a public limited company on November 27, 2013. Perrigo’s fiscal year begins on January 1 and ends on December 31 of each year. We end our quarterly accounting periods on the Saturday closest to the end of the calendar quarter, with the fourth quarter ending on December 31 of each year. Perrigo’s registered address is The Sharp Building, Hogan Place, Dublin 2, Ireland D02 TY74.
Appointment of Directors
Perrigo’s articles of association provide that (subject to: (a) automatic increases to accommodate the exercise of the rights of holders of any class or series of shares in issue having special rights to nominate or appoint directors in accordance with the terms of issue of such class or series; and/or (b) any resolution passed increasing the number of directors) the number of directors will be not less than two and not more than eleven.
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At each annual general meeting of Perrigo, all the directors shall retire from office and be re-eligible for re-election. Upon the resignation or termination of office of any director, if a new director shall be appointed to the board he will be designated to fill the vacancy arising.
No person shall be appointed director unless nominated as follows:
| • | by the affirmative vote of two-thirds of the board of Perrigo; |
| • | with respect to election at an annual general meeting, by any shareholder who holds ordinary shares or other shares carrying the general right to vote at general meetings of Perrigo, who is a shareholder at the time of the giving of the notice and at the time of the relevant annual general meeting and who timely complies with the notice procedures set out in the articles of association; |
| • | with respect to election at an extraordinary general meeting requisitioned in accordance with section 178 of the Companies Act, by a shareholder or shareholders who hold ordinary shares or other shares carrying the general right to vote at general meetings of Perrigo and who make such nomination in the written requisition of the extraordinary general meeting; or |
| • | by holders of any class or series of shares in Perrigo then in issue having special rights to nominate or appoint directors in accordance with the terms of issue of such class or series, but only to the extent provided in such terms of issue. |
Directors shall be appointed as follows:
| • | by shareholders by majority of votes cast at the annual general meeting in each year or at any extraordinary general meeting called for the purpose, except that, if resolutions are passed in respect of the election of directors which would result in the maximum number of directors being exceeded, then those directors, in such number as exceeds such maximum number, receiving at that meeting the lowest number of votes will not be elected; |
| • | by the board in accordance with the articles of association; or |
| • | so long as there is in office a sufficient number of directors to constitute a quorum of the board, the directors shall have the power at any time and from time to time to appoint any person to be director, either to fill a vacancy in the board or as an addition to the existing directors but so that the total number of directors shall not any time exceed the maximum number provided for in the articles of association. |
Removal of Directors
Under the Companies Act, the shareholders may, by an ordinary resolution, remove a director from office before the expiration of his or her term at a meeting held on no less than 28 days’ notice and at which the director is entitled to be heard. The power of removal is without prejudice to any claim for damages for breach of contract (e.g., employment contract) that the director may have against Perrigo in respect of his removal.
The board of directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any maximum number of directors so fixed. Perrigo may by ordinary resolution elect another person in place of a director removed from office and without prejudice to the powers of the directors under the articles, the company in general meeting may elect any person to be a director to fill a vacancy or an additional director, subject to the maximum number of directors set out in the articles of association.
Directors’ Duties
Our directors have certain statutory and fiduciary duties. All of our directors have equal and overall responsibility for our management (although directors who also serve as employees will have additional
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responsibilities and duties arising under their employment agreements and will be expected to exercise a greater degree of skill and diligence than non-executive directors). The principal fiduciary duties include the statutory and common law fiduciary duties of acting in good faith in the interests of our company and exercising due care and skill. Other statutory duties include ensuring the maintenance of proper books of account, having annual accounts prepared, having an annual audit performed, maintaining certain registers and making certain filings as well as the disclosure of personal interests. Particular duties also apply to directors of insolvent companies (for example, the directors could be liable to sanctions where they are deemed by the court to have carried on our business while insolvent, without due regard to the interests of creditors). For public limited companies like us, directors are under a specific duty to ensure that the corporate secretary is a person with the requisite knowledge and experience to discharge the role.
Duration; Dissolution; Rights upon Liquidation
Perrigo’s duration will be unlimited. Perrigo may be dissolved and wound up at any time by way of a shareholders’ voluntary winding up or a creditors’ winding up. In the case of a shareholders’ voluntary winding-up, a special resolution of shareholders is required. Perrigo may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure where Perrigo has failed to file certain returns.
The rights of the shareholders to a return of Perrigo’s assets on dissolution or winding up, following the settlement of all claims of creditors, are prescribed in Perrigo’s articles of association and may be further prescribed in the terms of any preferred shares issued by the directors of Perrigo from time to time. The holders of preferred shares in particular may have the right to priority in a dissolution or winding up of Perrigo. The memorandum and articles of association provide that, subject to the priorities of any creditors, the assets will be distributed to shareholders in proportion to the paid-up nominal value of the shares held. Perrigo’s articles of association provide that the shareholders of Perrigo are entitled to participate pro rata in a winding up, but their right to do so is subject to the rights of any holders of the shares issued upon special terms and conditions to participate under the terms of any series or class of such shares.
Uncertificated Shares
Holders of ordinary shares of Perrigo will have the right upon request to require Perrigo to issue certificates for their shares. Subject to any such requests, Perrigo intends only to issue uncertificated ordinary shares.
No Sinking Fund
The Perrigo ordinary shares have no sinking fund provisions.
No Liability for Further Calls or Assessments
The shares to be issued in the transactions will be duly and validly issued and fully paid.
Transfer and Registration of Shares
The transfer agent for Perrigo will maintain the share register, registration in which will be determinative of membership in Perrigo. A shareholder of Perrigo who holds shares beneficially will not be the holder of record of such shares. Instead, the depository or other nominee will be the holder of record of those 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 Perrigo’s official share register, as the depository or other nominee will remain the record holder of any such shares.
A written instrument of transfer is required under Irish law in order to register on Perrigo’s official share register any transfer of shares (i) from a person who holds such shares directly to any other person, (ii) from a
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person who holds such shares beneficially to a person who holds such shares directly or (iii) from a person who holds such shares beneficially to another person who holds such shares beneficially where the transfer involves a change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer is also required for a shareholder who directly holds shares to transfer those shares into his or her own broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid prior to registration of the transfer on Perrigo’s official Irish share register. However, a shareholder who directly holds shares may transfer those shares into his or her own broker account (or vice versa) without giving rise to Irish stamp duty, provided there is no change in the ultimate beneficial ownership of the shares as a result of the transfer and the transfer is not made in contemplation of a sale of the shares.
Any transfer of Perrigo ordinary shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is duly stamped and provided to the transfer agent. Perrigo’s articles of association allow Perrigo, in its absolute discretion, to create an instrument of transfer and pay (or procure the payment of) any stamp duty, which is the legal obligation of a buyer. In the event of any such payment, Perrigo is (on behalf of itself or its affiliates) entitled to (i) seek reimbursement from the buyer or seller (at its discretion), (ii) set-off the amount of the stamp duty against future dividends payable to the buyer or seller (at its discretion) and (iii) claim a lien against the Perrigo ordinary shares on which it has paid stamp duty. Parties to a share transfer may assume that any stamp duty arising in respect of a transaction in Perrigo ordinary shares has been paid unless one or both of such parties is otherwise notified by Perrigo.
Perrigo’s memorandum and articles of association delegate to Perrigo’s secretary the authority to execute an instrument of transfer on behalf of a transferring party.
In order to help ensure that the official share register is regularly updated to reflect trading of Perrigo ordinary shares occurring through normal electronic systems, Perrigo regularly produces any required instruments of transfer in connection with any transactions for which it pays stamp duty (subject to the reimbursement and set-off rights described above). In the event that Perrigo notifies one or both of the parties to a share transfer that it believes stamp duty is required to be paid in connection with the transfer and that it will not pay the stamp duty, the parties may either themselves arrange for the execution of the required instrument of transfer (and may request a form of instrument of transfer from Perrigo for this purpose) or request that Perrigo execute an instrument of transfer on behalf of the transferring party in a form determined by Perrigo. In either event, if the parties to the share transfer have the instrument of transfer duly stamped (to the extent required) and then provide it to Perrigo’s transfer agent, the buyer will be registered as the legal owner of the relevant shares on Perrigo’s official Irish share register (subject to the matters described below).
The directors may suspend registration of transfers from time to time, not exceeding 30 days in aggregate each year.
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LEGAL OWNERSHIP AND BOOK-ENTRY ISSUANCE
Street Name and Other Indirect Holders
We generally will not recognize investors who hold securities in accounts at banks or brokers as legal holders of securities. Holding in that way is called holding in street name. Instead, we would recognize only the bank or broker, or the financial institution the bank or broker uses to hold its securities. These intermediary banks, brokers and other financial institutions pass along principal, interest and other payments on the securities, either because they agree to do so in their customer agreements or because they are legally required to do so. If you intend to hold securities in street name, you should check with the institution through which you will hold your securities to find out:
| • | how it handles securities payments and notices; |
| • | whether it imposes fees or charges; |
| • | how it would handle voting if ever required; |
| • | whether and how you can instruct it to send you securities registered in your own name so you can be a direct holder as described below; and |
| • | how it would pursue rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests. |
Direct Holders
Our obligations, as well as the obligations of the trustee and those of any third parties employed by us or the trustee, run only to persons or entities who are the direct holders of securities, i.e., those who are registered as holders of securities. As noted above, we do not have obligations to you if you hold in street name or through other indirect means, either because you choose to hold securities in that manner or because we issued the securities in the form of global securities as described below. For example, once we make payment to the registered holder, we have no further responsibility for the payment even if that registered holder is legally required to pass the payment along to you as a street name customer but does not do so.
Global Securities
What is a Global Security? A global security is a special type of indirectly held security, as described above under “—Street Name and Other Indirect Holders”. If we choose to issue securities in the form of global securities only, the ultimate beneficial owners can only be indirect holders. We do this by requiring that the global security be registered in the name of a financial institution or clearing system, or their nominee, that we select and by requiring that the securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described below occur. The financial institution that acts as the sole direct holder of the global security is called the depository. The Depository Trust Company, New York, New York, known as DTC, may be a depository for one or more series of securities. For information regarding DTC, see “—Considerations Relating to DTC”.
Any person wishing to own a security included in a global security must do so indirectly by virtue of an account with a broker, bank or other financial institution that in turn has an account with the depository. The prospectus supplement indicates whether we will issue your securities only in the form of global securities.
Special Investor Considerations for Global Securities. The account rules of your financial institution and the rules of the depository, as well as general laws relating to securities transfers, will govern your rights as an indirect holder of a global security. We will not recognize you as a registered holder of securities and instead will deal only with the depository that holds the global security.
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You should be aware that if securities are issued only in the form of global securities:
| • | You cannot have securities registered in your own name. |
| • | You cannot receive physical certificates for your interest in the securities. |
| • | You will be a street name holder and must look to your own bank or broker for payments on the securities and protection of your legal rights relating to the securities. See “—Street Name and Other Indirect Holders”. |
| • | You may not be able to sell interests in the securities to some insurance companies and other institutions that are required by law to own their securities as direct holders. |
| • | The depository’s policies will govern payments, transfers, exchange and other matters relating to your interest in the global security, and those policies may change from time to time. We and the trustee have no responsibility for any aspect of the depository’s actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depository in any way. |
| • | Financial institutions that participate in the depositary’s book-entry system and through which investors hold their interests in the global securities, directly or indirectly, may also have their own policies affecting payments, deliveries, transfers, exchanges, notices and other matters relating to the securities, and those policies may change from time to time. We do not monitor and are not responsible for the policies or actions or records of ownership interests of any of those intermediaries. |
| • | The depository will require that you purchase or sell interests in a global security within its system using same-day funds for settlement. |
Special Situations When a Global Security will be Terminated. In a few special situations described below, the trustee will terminate the global security and will exchange interests in it for separate certificates representing securities. After that exchange, the choice of whether to hold securities directly or in street name will be up to you. You must consult your own bank or broker to find out how to have your interests in the securities transferred to your own name, so that you will be a direct holder. We previously described the rights of street name investors and direct holders in the securities in the subsections entitled “—Street Name and Other Indirect Holders” and “—Direct Holders”.
The special situations for termination of a global security are:
| • | When the depository notifies us that it is unwilling, unable or no longer qualified to continue as depository, |
| • | When we notify the trustee that we wish to terminate the global security, or |
| • | When an event of default on the securities has occurred and has not been cured or waived. |
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular securities of the series covered by the prospectus supplement. When a global security terminates, the depository, and not we or the trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
Considerations Relating to DTC. DTC has informed us that it is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that DTC participants deposit with DTC. DTC also facilitates the settlement among DTC participants of securities transactions, such as transfers and pledges in deposited securities through electronic computerized book-entry changes in DTC participants’ accounts, thereby eliminating the need for physical movement of certificates. DTC participants include securities brokers and dealers, banks, trust companies and clearing corporations, and may include other organizations. Indirect access to the DTC system
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also is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. The rules applicable to DTC and DTC participants are on file with the Commission.
Purchases of securities within the DTC system must be made by or through DTC participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser of the notes, which we refer to as the “beneficial owner,” is in turn to be recorded on the DTC participants’ records. Beneficial owners will not receive written confirmation from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings from the direct or indirect DTC participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the global notes will be effected only through entries made on the books of DTC participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global notes, except in the event that use of the book-entry system for the notes is discontinued.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
Redemption notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
In instances in which a vote is required, neither DTC nor Cede & Co. will itself consent or vote with respect to the securities. Under its usual procedures DTC would mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to those direct participants to whose accounts such securities are credited on the record date (identified in a listing attached to the omnibus proxy).
Distribution payments on the securities will be made by the trustee, after we deposit funds with the trustee for that purpose, to Cede & Co., as nominee of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices and will be the responsibility of such participants and not of DTC, the trustee or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of distributions to DTC is the responsibility of the trustee, and disbursements of such payment to the beneficial owners are the responsibility of direct and indirect participants.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be accurate, but we assume no responsibility for the accuracy thereof. We do not have any responsibility for the performance by DTC or its participants of their respective obligations as described herein or under the rules and procedures governing their respective operations.
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We may sell the securities covered by this prospectus in any of the following ways (or in any combination):
| • | to or through underwriting syndicates represented by managing underwriters; |
| • | to or through one or more underwriters without a syndicate for them to offer and sell to the public; |
| • | to or through dealers or agents; and |
| • | directly to investors. |
The securities we distribute by any of these methods may be sold to the public, in one or more transactions, either:
| • | at a fixed price or prices, which may be changed; |
| • | at market prices prevailing at the time of sale; |
| • | at prices related to prevailing market prices; or |
| • | at negotiated prices. |
We may sell securities from time to time to one or more underwriters, who would purchase the securities as principal on a firm commitment basis for resale to the public. If we sell securities to underwriters, we may execute an underwriting agreement with them at the time of sale and will name them in the applicable prospectus supplement. In connection with those sales, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the securities for whom they may act as agents. Underwriters may resell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from purchasers for whom they may act as agents. The applicable prospectus supplement will include any required information about underwriting compensation we pay to underwriters, and any discounts, concessions or commissions underwriters allow to participating dealers, in connection with an offering of securities.
We may solicit offers to purchase securities directly from the public from time to time. We may also designate agents from time to time to solicit offers to purchase securities from the public on our behalf. If required, the prospectus supplement relating to any particular offering of securities will name any agents designated to solicit offers, and will include information about any commissions we may pay the agents, in that offering. Agents may be deemed to be “underwriters” as that term is defined in the Securities Act.
From time to time, we may sell securities to one or more dealers acting as principals. The dealers, who may be deemed to be “underwriters” as that term is defined in the Securities Act, may then resell those securities to the public.
Any underwriter or agent involved in the offer and sale of any securities will be named in the applicable prospectus supplement.
Underwriters, agents and dealers may be entitled, under agreements with us, to indemnification against certain civil liabilities, including liabilities under the Securities Act.
Each issuance of securities (other than any add-on issuance) will be a new issue, and there will be no established trading market for any security prior to its original issue date, other than the ordinary shares, which are listed on the New York Stock Exchange and the Tel Aviv Stock Exchange. We may, but are not required to, list a particular issuance of securities on a securities exchange or arrange for admission of a particular issuance of securities on an automated quotation system. Any underwriters to whom we sell securities for public offering may make a market in those securities. However, no such underwriter that makes a market will be obligated to do so, and any of them may stop doing so at any time without notice. No assurance can be given as to the liquidity or trading market for any of the securities.
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Unless otherwise indicated in the applicable prospectus supplement or confirmation of sale, the purchase price of the securities will be required to be paid in immediately available funds in New York City.
In connection with an offering, the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress.
The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to other underwriters a portion of the underwriting discount received by it because these underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering transactions.
These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time. These transactions may be effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted for trading on that automated quotation system, or in the over-the-counter market or otherwise.
Underwriters, dealers and agents may engage in transactions with or perform services for us in the ordinary course of their businesses and for which they will receive customary compensation.
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Fried, Frank, Harris, Shriver & Jacobson LLP, New York, New York, will pass upon matters of New York law with respect to securities sold under this prospectus. A&L Goodbody will pass upon matters of Irish law with respect to securities sold under this prospectus. Certain legal matters will be passed upon for any agents or underwriters by counsel for such agents or underwriters identified in the applicable prospectus supplement.
The consolidated financial statements of Perrigo Company plc appearing in Perrigo Company plc’s Annual Report (Form 10-K) for the year ended December 31, 2019, and the effectiveness of Perrigo Company plc’s internal control over financial reporting as of December 31, 2019 excluding the internal control over financial reporting of Ranir Global Holdings, LLC, which is included in the 2019 consolidated financial statements of the Company and constituted 8% and 13% of total and net assets, respectively as of December 31, 2019 and 3% and 5% of net sales and net income, respectively for the year then ended, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in its reports thereon, which as to the report on the effectiveness of Perrigo Company plc’s internal control over financial reporting contains an explanatory paragraph describing the above referenced exclusion of Ranir Global Holdings, LLC from the scope of such firm’s audit of internal control over financial reporting, included therein, and incorporated herein by reference. Such financial statements have been incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company under the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet website that contains reports, proxy and information statements, and other information regarding issuers, including us, that file electronically with the SEC. The public can obtain any documents that we file electronically with the SEC at the SEC’s Internet website, www.sec.gov, or at the office of the New York Stock Exchange, on which our ordinary shares are listed. Except to the extent specifically incorporated by reference into this prospectus, the information contained on the SEC’s website is expressly not incorporated by reference into this prospectus. For further information on obtaining copies of our public filings at the New York Stock Exchange, you should call (212) 656-3000 or visit the New York Stock Exchange website, www.nyse.com. In addition, you may request copies of these filings at no cost by writing or telephoning us at the following address: Perrigo Company plc, The Sharp Building, Hogan Place, Dublin 2, Ireland, D02 TY74, +353-1-7094000; or at our Internet website, www.perrigo.com. Information contained on our website is not incorporated by reference in and does not constitute part of this prospectus.
We have filed with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus or any prospectus supplement to a contract or other document filed or incorporated by reference as an exhibit to our registration statement, the reference is only a summary. For a copy of the contract or other document, you should refer to the exhibits that are a part of the registration statement or incorporated by reference in the registration statement by the filing of a Current Report on Form 8-K, Form 10-Q, Form 10-K or otherwise. You may review a copy of the registration statement and the documents we incorporate by reference through the SEC’s Internet website as listed above.
The following documents filed with the SEC are incorporated by reference in this prospectus:
| • | Annual Report on Form 10-K for the fiscal year ended December 31, 2019; |
| • | Quarterly Report on Form 10-Q for the quarter ended March 28, 2020; |
| • | Those portions of the Company’s Proxy Statement on Schedule 14A filed on March 27, 2020 that are incorporated by reference into the Company’s Annual Report on Form 10-K; |
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| • | Current Reports on Form 8-K filed on February 7, 2020, April 7, 2020 (Item 8.01 only), April 9, 2020 and May 8, 2020; and |
| • | The description of the Company’s Ordinary Shares, contained in the Company’s Registration Statement on Form S-4, as amended (File No. 333-190859) under the heading “Description of New Perrigo Ordinary Shares” and in any report filed for the purpose of amending such description. |
Also, all documents filed by us with the SEC under File No. 001-36353 pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act (not including Current Reports or portions thereof furnished under Item 2.02 or Item 7.01 under Form 8-K) after the date of this prospectus and prior to termination of the offering to which this prospectus relates shall be deemed to be incorporated by reference herein and to be a part hereof from the date of such filing. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 that also is, or is deemed to be, incorporated by reference herein 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 of this prospectus.
We will provide, without charge, copies of any document incorporated by reference into this prospectus, excluding exhibits other than those exhibits that are specifically incorporated by reference in this prospectus. You can obtain a copy of any document incorporated by reference by writing or calling us at our principal executive offices as follows:
Perrigo Company plc
The Sharp Building
Hogan Place
Dublin 2, Ireland D02 TY74
+353-1-7094000
Information on our website is not part of this prospectus, and you should not rely on that information in making your investment decision unless that information is also in this prospectus or has been expressly incorporated by reference in this prospectus.
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SERVICE OF PROCESS AND ENFORCEMENT OF LIABILITIES
There is no treaty between Ireland and the United States providing for the reciprocal enforcement of foreign judgments. We have been advised by our Irish counsel, A&L Goodbody, that any proceedings in Ireland for the enforcement of a judgment obtained against either of the registrants in any U.S. federal or New York state court in the Borough of Manhattan in the City of New York (a “Foreign Judgment”) would be recognized and enforced by the courts of Ireland save that to enforce such a Foreign Judgment in Ireland it would be necessary to obtain an order of the Irish courts. Such order should be granted on proper proof of the Foreign Judgment without any re-trial or examination of the merits of the case subject to the following qualifications:
| • | that the foreign court had jurisdiction, according to the laws of Ireland; |
| • | that the Foreign Judgment was not obtained by fraud; |
| • | that the Foreign Judgment is not contrary to public policy or natural justice as understood in Irish law; |
| • | that the Foreign Judgment is final and conclusive; |
| • | that the Foreign Judgment is for a definite sum of money; and |
| • | that the procedural rules of the court giving the Foreign Judgment have been observed. |
Any such order of the Irish courts may be expressed in a currency other than euros in respect of the amount due and payable by either of the registrants but such order may be issued out of the Central Office of the Irish High Court expressed in euros by reference to the official rate of exchange prevailing on the date of issue of such order. However, in the event of a winding up of either of the registrants, amounts claimed in U.S. Dollars against either of the registrants in a currency other than the euro (the “Foreign Currency”) would, to the extent properly payable in the winding up, be paid if not in the Foreign Currency in the euro equivalent of the amount due in the Foreign Currency converted at the rate of exchange pertaining on the date of the commencement of such winding up.
It may be difficult for a securityholder to effect service of process within the United States or to enforce judgments obtained against us in U.S. courts. We have agreed that we may be served with process with respect to actions based on offers and sales of securities made in the United States and other violations of U.S. securities laws by having Perrigo Company, a wholly-owned subsidiary of Perrigo Company plc, be our U.S. agent appointed for that purpose. Perrigo Company is located at 515 Eastern Avenue, Allegan, Michigan 49010. A judgment obtained against us in a U.S. court would be enforceable in the United States but could be executed upon only to the extent we have assets in the United States. An Irish court may impose civil liability on us or our directors or officers with respect to a violation of U.S. federal securities laws, provided that the facts surrounding such violation would constitute or give rise to a cause of action under Irish law.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth all fees and expenses payable by the registrants in connection with the issuance and distribution of the securities being registered hereby (other than underwriting or broker-dealer discounts and commissions). All of the amounts shown are estimates.
| SEC registration fee |
$ | (1 | ) | |
| Accounting fees and expenses |
(2 | ) | ||
| Legal fees and expenses |
(2 | ) | ||
| Printing and engraving expenses |
(2 | ) | ||
| Trustee fees and expenses |
(2 | ) | ||
| Miscellaneous |
(2 | ) | ||
|
|
|
|||
| Total |
$ | (2 | ) | |
|
|
|
| (1) | Deferred in accordance with Rules 456(b) and 457(r) under the Securities Act. |
| (2) | The amount of these expenses is not presently known. |
| Item 15. | Indemnification of Directors and Officers |
Each director and executive officer of Perrigo Company plc enters into an indemnity agreement (the “Irish Indemnity Agreement”) with Perrigo Company plc. Under the Irish Indemnity Agreement and subject to the provisions of and so far as may be admitted by the Irish Companies Act 2014 (the “Companies Act”), every director and the secretary of Perrigo Company plc shall be entitled to be indemnified by Perrigo Company plc against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of Perrigo Company plc and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court.
Pursuant to the Irish Indemnity Agreement, as far as is permissible under the Companies Act, Perrigo Company plc shall indemnify any current or former executive officer of Perrigo Company plc (excluding any present or former directors of Perrigo Company plc or secretary of Perrigo Company plc), or any person who is serving or has served at the request of Perrigo Company plc as a director or executive officer of another company, joint venture, trust or other enterprise, including any Perrigo Company plc subsidiary (each individually, a “Covered Person”), against any expenses, including attorney’s fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, to which he or she was, is, or is threatened to be made a party, or is otherwise involved (a “proceeding”), by reason of the fact that he or she is or was a Covered Person; provided, however, that this provision shall not indemnify any Covered Person against any liability arising out of (a) any fraud or dishonesty in the performance of such Covered Person’s duty to Perrigo Company plc, or (b) such Covered Party’s conscious, intentional or wilful breach of the obligation to act honestly and in good faith with a view to the best interests of Perrigo Company plc.
Irish company law places certain restrictions on a company providing indemnification to any of its directors or the secretary. In particular, the Companies Act provides that any provision that purports to exempt a director
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from liability for negligence, default, breach of duty or breach of trust in relation to the company is void. Accordingly, an Irish company may only indemnify its directors or secretary if the indemnified party receives a favourable judgment in respect of the liability, or where an Irish court determines that the director or the secretary acted honestly and reasonably and ought fairly to be excused, or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on the part of the director or secretary, or in which he/she is acquitted. This restriction does not prevent an Irish company from purchasing director and officer liability insurance and the restriction in the Companies Act does not apply to executives who are not directors or the secretary of the relevant company.
In addition, each director and executive officer of Perrigo Company plc enters into an indemnity agreement (the “Michigan Indemnity Agreement”) with Perrigo Company, a Michigan Corporation and a wholly-owned subsidiary of Perrigo Company plc. Under the Michigan Indemnity Agreement, Perrigo Company is obligated to indemnify Perrigo Company plc’s directors and executive officers to the full extent permitted under Michigan Business Corporation Act (the “MBCA”). Under Sections 561 through 571 of 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 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 Perrigo Company plc 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 Perrigo Company plc) arising out of a position with Perrigo Company plc (or with some other entity at the Perrigo Company plc’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 Perrigo Company plc, unless the director or officer is found liable to Perrigo Company plc, 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 undertaking, which need not be secured and which may be accepted without reference to the financial ability of the person to make
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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 Michigan Indemnity Agreement 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 Perrigo Company plc’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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling Perrigo Company plc pursuant to the foregoing provisions, Perrigo Company plc has been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
The MBCA permits Perrigo Company plc to purchase insurance on behalf of its directors and officers against liabilities arising out of their positions with the Perrigo Company plc, whether or not such liabilities would be within the above indemnification provisions. Pursuant to this authority, Perrigo Company plc maintains such insurance on behalf of its directors and officers.
The foregoing summaries are qualified in their entirety to the terms and provisions of such arrangements.
| Item 16. | Exhibits |
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| * | To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein. |
| Item 17. | Undertakings |
Each of the undersigned registrants hereby undertakes:
| (a) | (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (i), (ii) and (iii) 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 SEC by the undersigned registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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. |
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| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (A) | Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of each of the undersigned registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each of the undersigned registrants undertakes that in a primary offering of securities of such registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | That, for purposes of determining any liability under the Securities Act of 1933, each filing of a registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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. |
| (c) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act. |
II-5
Table of Contents
| (d) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each of the undersigned registrants pursuant to the foregoing provisions, or otherwise, each of the undersigned registrants has been advised that in the opinion of the Securities and Exchange 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 a registrant of expenses incurred or paid by a director, officer or controlling person of such 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, such 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. |
II-6
Table of Contents
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dublin, Ireland, on the 12th day of June, 2020.
| PERRIGO COMPANY PLC
| ||
| By: | /s/ Murray S. Kessler | |
| Murray S. Kessler | ||
| President and Chief Executive Officer | ||
Each person whose name appears below hereby constitutes and appoints Murray S. Kessler, Raymond Silcock and Todd W. Kingma and each of them, as such person’s true and lawful attorney-in-fact and agent, with full power of substitution to sign for such person and in such person’s name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments, and to file the same with all exhibits and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, hereby ratifying and confirming all that said attorney-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
| Signature |
Title |
Date | ||
| /s/ Murray S. Kessler Murray S. Kessler |
President and Chief Executive Officer, Director (Principal Executive Officer) |
June 12, 2020 | ||
| /s/ Raymond Silcock Raymond Silcock |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
June 12, 2020 | ||
| /s/ Rolf A. Classon Rolf A. Classon |
Chairman of the Board of Directors |
June 12, 2020 | ||
| /s/ Bradley A. Alford Bradley A. Alford |
Director |
June 12, 2020 | ||
| /s/ Adriana Karaboutis Adriana Karaboutis |
Director |
June 12, 2020 | ||
| /s/ Jeffrey B. Kindler Jeffrey B. Kindler |
Director |
June 12, 2020 | ||
| /s/ Erica L. Mann Erica L. Mann |
Director |
June 12, 2020 | ||
| /s/ Donal O’Connor Donal O’Connor |
Director |
June 12, 2020 | ||
| /s/ Geoffrey M. Parker Geoffrey M. Parker |
Director |
June 12, 2020 | ||
| /s/ Theodore R. Samuels Theodore R. Samuels |
Director |
June 12, 2020 | ||
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dublin, Ireland, on the 12th day of June, 2020.
| PERRIGO FINANCE UNLIMITED COMPANY
| ||
| By: | /s/ James Larson | |
| James Larson | ||
| Secretary | ||
Each person whose name appears below hereby constitutes and appoints Todd W. Kingma as such person’s true and lawful attorney-in-fact and agent, with full power of substitution to sign for such person and in such person’s name and capacity indicated below, any and all amendments to this Registration Statement, including post-effective amendments, and to file the same with all exhibits and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
| Signature |
Title |
Date | ||
| /s/ James Larson James Larson |
Secretary (Principal Officer) |
June 12, 2020 | ||
| /s/ Lou Cherico Lou Cherico |
Director |
June 12, 2020 | ||
| /s/ Sinéad McGrath Sinead McGrath |
Director |
June 12, 2020 | ||
| /s/ Gráinne Quinn Grainne Quinn |
Director |
June 12, 2020 | ||
| /s/ Robert Willis Robert Willis |
Director |
June 12, 2020 | ||
Exhibit 5.1
|
A&L Goodbody | Dublin | ||||||
| International Financial Services Centre | Belfast | |||||||
| 25-28 North Wall Quay, Dublin 1 | London | |||||||
| D01 H104 | New York | |||||||
| T: +353 1 649 2000 | San Francisco | |||||||
| DX: 29 Dublin | www.algoodbody.com | Palo Alto |
| Date | 12 June 2020 | |
| Our ref | 01433617 | |
| Your ref | ||
Perrigo Company plc
The Sharp Building,
Hogan Place,
Dublin 2.
Perrigo Finance Unlimited Company
The Sharp Building,
Hogan Place,
Dublin 2.
Perrigo Company plc and Perrigo Finance Unlimited Company
Dear Sir/Madam
Basis of Opinion
| 1 | We are acting as Irish counsel to each of: |
| 1.1 | Perrigo Company plc, a public company limited by shares, incorporated under the laws of Ireland, with its registered office at The Sharp Building, Hogan Place, Dublin 2, Ireland and incorporated under registration number 529592 (Perrigo); and |
| 1.2 | Perrigo Finance Unlimited Company, a public unlimited company, incorporated under the laws of Ireland, with its registered office at The Sharp Building, Hogan Place, Dublin 2, Ireland and incorporated under registration number 392565 (PFU) (PFU and Perrigo each being a Company and together being the Companies), |
| in connection with the filing of the Companies’ registration statement on Form S-3 (the Registration Statement) to be filed with the United States Securities and Exchange Commission (the SEC) on 12 June 2020 under the Securities Act of 1933 of the United States of America, as amended (the Securities Act). |
| 2 | The Registration Statement relates to securities including: |
| 2.1 | ordinary shares in the capital of Perrigo, with a nominal value of €0.001 (the Perrigo Ordinary Shares); |
| 2.2 | preference shares in the capital of Perrigo, with a nominal value of US$0.0001 which shares may, upon the terms of issue, include a right to be converted into Perrigo Ordinary Shares (the Perrigo Preference Shares) (the Perrigo Preference Shares together with the Perrigo Ordinary Shares being the Shares); |
| PM Law • CE Gill • JG Grennan • J Coman • PD White • VJ Power • LA Kennedy • SM Doggett
• B McDermott • C Duffy • PV Maher • S O’Riordan • MP McKenna • KA Feeney • M Sherlock
Consultants: SW Haughey • Professor JCW Wylie • AF Browne • MA Greene • AV Fanagan |
| 2.3 | debt securities of Perrigo as described in the Registration Statement (the Perrigo Debt Securities); and |
| 2.4 | debt securities of PFU as described in the Registration Statement (the PFU Debt Securities) (the Perrigo Debt Securities together with the PFU Debt Securities being the Debt Securities), |
(the proposals and arrangements described in the Registration Statement being referred to in this letter as the Transaction which for the avoidance of doubt shall include the issue of the Shares and the entry into of the Obligations (as defined below)).
| 3 | We further note that as described in the Registration Statement, the PFU Debt Securities may be guaranteed by Perrigo (the Perrigo Guarantee) and that the Perrigo Debt Securities may be guaranteed by PFU (the PFU Guarantee) (the Perrigo Guarantee, the PFU Guarantee and the Debt Securities together being referred to in this letter as the Obligations). |
| 4 | For the purposes of giving this Opinion we have examined (i) the Registration Statement, including the prospectus contained therein; and (ii) the corporate documents set out in Schedule 1 (the Corporate Documents). |
Assumptions
| 5 | In connection with this letter, we have assumed: |
| 5.1 | the accuracy and completeness of all information appearing on public records including, but not limited to, Perrigo’s form 8-K filed with the Securities and Exchange Commission on 8 May, 2020 announcing the results of Perrigo’s 2020 Annual General Meeting; |
| 5.2 | the completeness and authenticity of the draft of the Registration Statement that we have examined and that the Registration Statement will be filed with the SEC in a form and content having no material differences to such draft; |
| 5.3 | that the copy of the excerpt from the minutes of the meeting of the board of directors of the Perrigo dated 5-6 May 2020 produced to us are true copies and correctly record the proceedings of the meeting to which they relate and the resolutions passed and/or the subject matter which the minutes purport to record; and that no further resolutions have been passed (whether by the board of directors of the Perrigo or a committee of such board or other persons to whom authority has been delegated) or corporate or other action taken which would or might alter the effectiveness thereof; |
| 5.4 | that the copy of the excerpt from the minutes of the meeting of the board of directors of PFU dated 19 May 2020 produced to us are true copies and correctly record the proceedings of the meeting to which they relate and the resolutions passed and/or the subject matter which the minutes purport to record and that no further resolutions have been passed (whether by the board of directors of the PFU or a committee of such board or other persons to whom authority has been delegated) or corporate or other action taken which would or might alter the effectiveness thereof; |
| 5.5 | that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Transaction as disclosed by the Registration Statement; |
| 5.6 | that the Companies will enter into the Transaction in good faith and on arm’s length terms, for each Company’s legitimate and bona fide business purposes and that the relevant Company derives and will at all times derive commercial benefit from the Transaction commensurate with the risks undertaken by such Company in the Transaction; |
| M-50085942-3 | 2 |
| 5.7 | that any Shares issued in accordance with the Registration Statement will be paid up in consideration of the receipt by Perrigo from the party to whom the Shares are issued, prior to, or simultaneously with, the issue of Shares of cash and/or other consideration (not being non-cash consideration) at least equal to the nominal value of such Shares and that all Shares when issued will be fully paid up, including as to any premium thereon; |
| 5.8 | that each Company will enter into the relevant Obligations in good faith and on arm’s length terms, for its legitimate and bona fide business purposes, and that each Company derives and will at all times derive commercial benefit from the relevant Obligations commensurate with the risks undertaken by it in relation to the entry into of the relevant Obligations and it receives adequate consideration therefor; |
| 5.9 | the absence of fraud and the presence of good faith on the part of either Company under the Registration Statement and the Companies’ respective officers, employees, agents and advisers in respect of the Transaction and any issue of Shares or other securities (including the entry into of any relevant Obligations) described in the Registration Statement; |
| 5.10 | that (a) each Company will be fully solvent at the time of and immediately following the filing of the Registration Statement or entry into of any of the relevant Obligations by it; (b) no Company would as a consequence of doing any act or thing which the Registration Statement or entry into of any relevant Obligations contemplates, permits or requires the relevant Company to do, be insolvent; (c) no resolution or petition for the appointment of a liquidator or examiner has been passed or presented in relation to a Company and none will be passed or presented prior to the entry into of any of the relevant Obligations by it (and in the case of Perrigo prior to the issue of Shares by it); and (d) no receiver has been appointed in relation to any of the assets or undertaking of a Company and none will be appointed prior to the entry into of any of the relevant Obligations by it (and in the case of Perrigo prior to the issue of Shares by it); |
| 5.11 | that (a) Perrigo will be fully solvent at the time of and immediately following the filing of the Registration Statement and upon the issue of any Shares by it; (b) Perrigo would not, as a consequence of doing any act or thing which the Registration Statement or any issue of the Shares contemplates, permits or requires Perrigo to do, be insolvent; |
| 5.12 | no authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the agreements or arrangements referred to in the Registration Statement or with respect to any issue of the Shares or entry into of any Obligations are or will be required to be obtained; |
| 5.13 | that the Shares will conform with the descriptions and restrictions contained in the Registration Statement subject to such changes as may be required in order to comply with any requirement of Irish law, that any selling restrictions contained therein have been and will be at all times observed and that the obligations will conform with the terms of the agreements related to the relevant Obligations, including the terms of any indenture to be entered into among one or both of the Companies and the trustee to be named therein; |
| 5.14 | that any representations and warranties contained in the Registration Statement are true and correct and that each Company will at all times comply with its obligations under, and the representations and warranties contained in, the Registration Statement and the agreements and arrangements referred to in the Registration Statement and all other agreements and arrangements relating to the issue of the Shares by it or the entry into or performance of any relevant Obligations by it; |
| 5.15 | that the Perrigo Ordinary Shares will not be issued by Perrigo unless there are, at that time, sufficient numbers of authorised but unissued Perrigo Ordinary Shares in Perrigo’s capital and that, at the time of the issue, there are subsisting valid authorities given by Perrigo’s shareholders or under Perrigo’s articles of association pursuant to the Irish Companies Act 2014 (including without limitation any authorities required pursuant to sections 1021 and 1022 of the Irish Companies Act 2014); |
| M-50085942-3 | 3 |
| 5.16 | that the Perrigo Preference Shares, whether such shares have rights to be converted into ordinary shares or not, will not be issued by Perrigo unless there are, at that time, sufficient numbers of authorised but unissued Perrigo Preference Shares in Perrigo’s capital and that, at the time of the issue, there are subsisting valid authorities given by Perrigo’s shareholders or under Perrigo’s articles of association pursuant to the Irish Companies Act 2014 (including without limitation any authorities required pursuant to sections 1021 and 1022 of the Irish Companies Act 2014); |
| 5.17 | that the entry into of the Obligations by either Company will be in compliance with the provisions of Section 82 of the Irish Companies Act 2014 (as amended); |
| 5.18 | that Perrigo will have the necessary power and authority, and all necessary corporate and other action will have been taken, to (i) enable it to issue the relevant Shares and to execute, deliver and perform the obligations undertaken by it in relation thereto to which it is party and (ii) enter into and perform the Obligations and to execute, deliver and perform the obligations undertaken by it in relation thereto to which it is party, and the implementation by Perrigo of the foregoing will: |
| 5.18.1 | not cause any limit on it or on its directors (whether imposed by the documents constituting the Company or by statute or regulation) to be exceeded or any terms of any agreement, contract or undertaking binding on it or its assets to be breached; |
| 5.18.2 | not cause any law (including public policy) or order of any jurisdiction to be contravened; or |
| 5.18.3 | comply in all respects with the provisions of the Irish Companies Act 2014 (as amended); |
| 5.19 | that PFU will have the necessary power and authority, and all necessary corporate and other action will have been taken, to enter into and perform the Obligations and to execute, deliver and perform the obligations undertaken by it in relation thereto to which it is party, and the implementation by a Company of the foregoing will: |
| 5.19.1 | not cause any limit on it or on its directors (whether imposed by the documents constituting the Company or by statute or regulation) to be exceeded or any terms of any agreement, contract or undertaking binding on it or its assets to be breached; or |
| 5.19.2 | not cause any law (including public policy) or order of any jurisdiction to be contravened; |
| 5.20 | that, at that time, the issue of, and terms applicable to, the Shares and the registration of the Shares will not violate any law applicable to Perrigo; and |
| 5.21 | that, at that time, the entry into and performance of any of the Obligations or any indenture related thereto and the registration of such Obligations will not violate any law applicable to the relevant Company. |
Scope
| 6 | We are admitted to practise law only in Ireland (excluding Northern Ireland) and accordingly, we express no opinion on the laws of any jurisdiction other than the laws (and the interpretation thereof) of Ireland (excluding Northern Ireland) in force as at the date hereof. This opinion is also strictly confined to: |
| 6.1 | the matters expressly stated at paragraph 7 below; |
| 6.2 | the Perrigo Ordinary Shares and the Perrigo Preference Shares as described in the Registration Statement and the searches referred to at paragraph 7.1 below; and |
| M-50085942-3 | 4 |
| 6.3 | the Obligations, but only in so far as expressly described at paragraphs 7.4, 7.5 and 7.6 below. |
Opinion
| 7 | Based on the foregoing and the qualifications contained in paragraph 8 of this letter, we are of the opinion that: |
| 7.1 | each Company is a company duly incorporated under the laws of Ireland and, based only on searches carried out in the Irish Companies Registration Office and the Central Office of the High Court on 12 June 2020, each Company is validly existing under the laws of Ireland; |
| 7.2 | Perrigo has the requisite authority to issue the Perrigo Ordinary Shares and the Perrigo Preference Shares; |
| 7.3 | when the Shares are allotted and issued pursuant to duly adopted resolutions of the board of directors of Perrigo (including resolutions duly adopted by the board approving the allotment and issuance of the Shares with the delegation of authority to, or granting of powers of attorney appointing, officers or senior executives of Perrigo as the lawful agents or attorneys of Perrigo for the purposes of exercising the Perrigo’s powers in respect of the allotment and issue of the Shares or settling the final terms upon which such Shares shall be allotted and issued), the Shares shall be validly issued, fully paid and not subject to calls for any additional payment (“non-assessable”); |
| 7.4 | Perrigo is a public company limited by shares and has all the requisite power and authority under its company constitution to issue the Debt Securities and to enter into the Perrigo Guarantee; |
| 7.5 | PFU is a public unlimited company and has all the requisite power and authority under its company constitution to issue the Debt Securities and to enter into the PFU Guarantee; |
| 7.6 | with respect to the Obligations, when the board of directors of the relevant Company has taken all necessary corporate actions to approve the issuance or entry into thereof, the Obligations will be duly authorised under Irish law and the company constitution of the relevant Company. |
Qualifications
| 8 | The opinions set forth in this letter are given subject to the following qualifications: |
| 8.1 | an order of specific performance or any other equitable remedy is a discretionary remedy and is not available when damages are considered to be an adequate remedy; |
| 8.2 | this opinion is given subject to general provisions of Irish law relating to insolvency, bankruptcy, liquidation, reorganisation, receivership, moratoria, court schemes of arrangement, administration and examination and the fraudulent preference of creditors and other Irish law generally affecting the rights of creditors; |
| 8.3 | claims may become barred under relevant statutes of limitation if not pursued within the time limited by such statutes; |
| 8.4 | a determination, description, calculation, opinion or certificate of any person as to any matter provided for in the agreements and arrangements referred to in the Registration Statement or any other agreements or arrangements relating to (i) the Shares or their issue or (ii) the Obligations might be held by the Irish courts not to be final, conclusive or binding if it could be shown to have an unreasonable, incorrect or arbitrary basis or not to have been made in good faith; |
| 8.5 | claims may be or become subject to defences of set-off or counter-claim; |
| M-50085942-3 | 5 |
| 8.6 | an Irish court has power to stay an action where it is shown that there is some other forum having competent jurisdiction which is more appropriate for the trial of the action, in which the case can be tried more suitably for the interests of all the parties and the ends of justice and where staying the action is not inconsistent with Council Regulation 2001/44/EC; |
| 8.7 | the enforceability of severance clauses is at the discretion of the court and may not be enforceable in all circumstances; |
| 8.8 | a waiver of all defences to any proceedings may not be enforceable; |
| 8.9 | provisions in any of the agreements or arrangements referred to in the Registration Statement or any other agreements or arrangements relating to (i) the Shares or their issue or (ii) the Obligations providing for indemnification resulting from loss suffered on conversion of the amount of a claim made in a foreign currency into euro in a liquidation may not be enforceable; |
| 8.10 | an Irish court may refuse to give effect to undertakings contained in any of the agreements or arrangements referred to in the Registration Statement or any other agreements or arrangements relating to (i) the Shares or their issue or (ii) the Obligations, that the Company will pay legal expenses and costs in respect of any action before the Irish courts; |
| 8.11 | the searches referred to in paragraph 7.1 do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or a petition presented or any other action taken for the winding-up of, or the appointment of a receiver or an examiner to, a Company; |
| 8.12 | we express no opinion on any taxation matters; and |
| 8.13 | we express no opinion on the enforceability or otherwise of any security which may be granted by the Company to secure its obligations under the Obligations. |
Consent
| 9 | We hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement and to the references to our firm under the heading “Validity of Securities”. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under section 7 of the Securities Act or the rules and regulations of the SEC thereunder. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein. |
This opinion is to be interpreted in accordance with, and governed by, the laws of Ireland and speaks only of its date.
Yours faithfully,
/s/ A&L GOODBODY
A&L Goodbody
| M-50085942-3 | 6 |
SCHEDULE 1
| 1 | A draft dated 12 June 2020 of the form of the Registration Statement on Form S-3 to be filed by the Companies with the SEC. |
| 2 | A copy extract of the resolutions of the board of directors of Perrigo dated 5-6 May 2020. |
| 3 | A copy of the resolutions of the board of directors of PFU dated 19 May 2020. |
| 4 | A copy of the Certificate of Incorporation of Perrigo dated 28 June 2013, a copy of its Certificate of Incorporation on Change of Name dated 30 July 2013 and its Certificate of Re-registration as a public limited company dated 27 November 2013. |
| 5 | A copy of Perrigo’s company constitution. |
| 6 | A copy of PFU’s company constitution. |
| 7 | A copy of the Certificate of Incorporation of PFU dated 18 October 2004, a copy of its Certificate of Incorporation on Change of Name dated 4 November 2014 and a copy of its Certificate of Re-registration as a public unlimited company dated 29 October 2015. |
| 8 | A Corporate Certificate of each Company dated 12 June 2020. |
| 9 | A company printout dated 12 June 2020 from the Companies Registration Office, Dublin in respect of each Company. |
| M-50085942-3 | 7 |
Exhibit 5.2
June 12, 2020
Perrigo Company plc
Perrigo Finance Unlimited Company
The Sharp Building, Hogan Place
Dublin 2, Ireland, D02 TY74
Ladies and Gentlemen:
We are acting as counsel to Perrigo Company plc, a public limited company incorporated under the laws of Ireland (the “Company”), and Perrigo Finance Unlimited Company, a public limited company incorporated under the laws of Ireland (“Perrigo Finance”), in connection with the Registration Statement on Form S-3, as may be amended from time to time (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the contemplated issuances by the Company and/or Perrigo Finance, from time to time, as set forth in the prospectus contained in the Registration Statement (the “Prospectus”) and as may be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”), of an unlimited amount of (i) one or more series of debt securities of the Company, which may include convertible debt securities (the “Company Debt Securities”); (ii) one or more series of debt securities of Perrigo Finance (the “Perrigo Finance Debt Securities”); (iii) guarantees of the Company with respect to the payments on the Perrigo Finance Debt Securities (the “Company Guarantees”); (iv) guarantees of Perrigo Finance with respect to the payments on the Company Debt Securities (the “Perrigo Finance Guarantees”); (v) the Company’s ordinary shares, nominal value €0.001 per share (the “Ordinary Shares”); and (vi) the Company’s preferred shares, nominal value $0.0001 per share, which may include convertible preferred shares (the “Preferred Shares”). With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part, and we express no opinion with respect to the subject matter or accuracy of such assumptions or items relied upon.
The Company Debt Securities, the Perrigo Finance Debt Securities, the Company Guarantees and the Perrigo Finance Guarantees may be issued pursuant to an indenture, dated as of December 2, 2014, among the Company, Perrigo Finance and Wells Fargo Bank, National Association, as trustee (the “Trustee”) (as may be amended or supplemented from time to time, the “Indenture”), incorporated into the Registration Statement by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on December 2, 2014.
In connection with this opinion, we have (i) investigated such questions of law, (ii) examined originals or certified, conformed, electronic or reproduction copies of such agreements, instruments, documents and records of the Company and Perrigo Finance, such certificates of public officials and such other documents, and (iii) received such information from officers and representatives of the Company, Perrigo Finance and others, as we have deemed necessary or appropriate for the purposes of this opinion.
| Perrigo Company | - 2 - | June 12, 2020 |
In all such examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified documents of all copies submitted to us as certified, conformed, electronic or reproduction copies. As to various questions of fact relevant to the opinions expressed herein, we have relied upon, and assume the accuracy of, certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, Perrigo Finance and others.
To the extent it may be relevant to the opinions expressed below, we have assumed (i) each of the Company and Perrigo Finance is a company duly incorporated under the laws of Ireland and is validly existing under the laws of Ireland, (ii) the Company has the requisite authority to issue the Ordinary Shares and the Preference Shares, (iii) the Company is a public company limited by shares and has all the requisite power and authority under its Memorandum and Articles of Association to issue the Company Debt Securities and the Company Guarantees and (iv) Perrigo Finance is a public company limited by shares and has all the requisite power and authority under its Memorandum and Articles of Association to issue the Perrigo Finance Debt Securities and the Perrigo Finance Guarantees and (v) that all of the parties to the Indenture have the power and authority to enter into and perform their obligations under such Indenture and to consummate the transactions contemplated thereby, that the Indenture has been duly authorized, executed and delivered by, and constitutes a valid and binding obligation of, such parties, enforceable against such parties in accordance with their terms, and that such parties will comply with all of their obligations under the Indenture and all laws applicable thereto.
Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein we are of the opinion that:
| 1. | When (i) the Registration Statement has become effective under the Securities Act, (ii) the board of directors of the Company has taken all necessary corporate actions to approve the issuance of the Company Debt Securities and the Company Debt Securities are duly authorized under Irish law and the Memorandum and Articles of Association of the Company, (iii) any relevant supplemental indenture has been duly authorized, executed and delivered by the Company, (iv) the terms of the Company Debt Securities and their issuance and sale have been duly established in conformity with the Indenture, do not violate any applicable law or result in a default under or breach of any agreement or instrument then binding on the Company, and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (v) the Company Debt Securities have been duly executed, authenticated and delivered against payment thereof in |
| Perrigo Company | - 3 - | June 12, 2020 |
| accordance with the terms of the Indenture and any relevant supplemental indenture and issued and sold as contemplated in the Registration Statement and/or the applicable Prospectus Supplement, such Company Debt Securities will constitute valid and binding obligations of the Company. |
| 2. | When (i) the Registration Statement has become effective under the Securities Act, (ii) the board of directors of Perrigo Finance has taken all necessary corporate actions to approve the issuance of the Perrigo Finance Debt Securities and the Perrigo Finance Debt Securities are duly authorized under Irish law and the Memorandum and Articles of Association of Perrigo Finance, (iii) any relevant supplemental indenture has been duly authorized, executed and delivered by Perrigo Finance, (iv) the terms of Perrigo Finance Debt Securities and their issuance and sale have been duly established in conformity with the Indenture, do not violate any applicable law or result in a default under or breach of any agreement or instrument then binding on Perrigo Finance, and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Perrigo Finance, and (v) the Perrigo Finance Debt Securities have been duly executed, authenticated and delivered against payment thereof in accordance with the terms of the Indenture and any relevant supplemental indenture and issued and sold as contemplated in the Registration Statement and/or the applicable Prospectus Supplement, such Perrigo Finance Debt Securities will constitute valid and binding obligations of Perrigo Finance. |
| 3. | When (i) the Registration Statement has become effective under the Securities Act, (ii) the board of directors of the Company has taken all necessary corporate actions to approve the issuance of the Company Guarantees and the Company Guarantees are duly authorized under Irish law and the Memorandum and Articles of Association of the Company, (iii) any relevant supplemental indenture has been duly authorized, executed and delivered by the Company, (iv) the terms of the Company Guarantees and their issuance have been duly established in conformity with the Indenture, do not violate any applicable law or result in a default under or breach of any agreement or instrument then binding on the Company, and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (v) the Company Guarantees have been duly executed and authenticated in accordance with the terms of the Indenture and any relevant supplemental indenture and issued and sold as contemplated in the Registration Statement and/or the applicable Prospectus Supplement, such Company Guarantees will constitute valid and binding obligations of the Company. |
| Perrigo Company | - 4 - | June 12, 2020 |
| 4. | When (i) the Registration Statement has become effective under the Securities Act, (ii) the board of directors of Perrigo Finance has taken all necessary corporate actions to approve the issuance of the Perrigo Finance Guarantees and the Perrigo Finance Guarantees are duly authorized under Irish law and the Memorandum and Articles of Association of Perrigo Finance, (iii) any relevant supplemental indenture has been duly authorized, executed and delivered by Perrigo Finance, (iv) the terms of the Perrigo Finance Guarantees and their issuance have been duly established in conformity with the Indenture, do not violate any applicable law or result in a default under or breach of any agreement or instrument then binding on Perrigo Finance, and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Perrigo Finance, and (v) the Perrigo Finance Guarantees have been duly executed and authenticated in accordance with the terms of the Indenture and any relevant supplemental indenture and issued and sold as contemplated in the Registration Statement and/or the applicable Prospectus Supplement, such Perrigo Finance Guarantees will constitute valid and binding obligations of Perrigo Finance. |
The opinions set forth above are subject to the following qualifications:
(A) We express no opinion as to the validity or binding effect of any provision of the Indenture:
| i. | relating to indemnification, contribution or exculpation to the extent limited by applicable provisions of public policy; |
| ii. | containing any purported waiver, release, variation, disclaimer, consent or other agreement of similar effect (all of the foregoing, collectively, a “Waiver”) by any party under any provision of the Indenture to the extent limited by provisions of applicable law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge otherwise existing or occurring as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under, and is not prohibited by or void or invalid under, provisions of applicable law (including judicial decisions); |
| iii. | related to (I) forum selection or submission to jurisdiction (including, without limitation, any waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum) to the extent that the validity or binding effect of any such provision is to be |
| Perrigo Company | - 5 - | June 12, 2020 |
| determined by any court other than a court of the State of New York, (II) choice of governing law to the extent that the validity or binding effect of any such provision is to be determined by any court other than a court of the State of New York or a federal district court sitting in the State of New York, in each case, applying the choice of law principles of the State of New York, (III) service of process or (IV) any waiver of right to trial by jury; |
| iv. | specifying that provisions thereof may be waived only in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created that modifies any provision of such agreement; |
| v. | purporting to give any person or entity the power to accelerate obligations without any notice to the obligor; |
| vi. | which may be construed to be in the nature of a penalty; |
| vii. | specifying that any person may exercise set-off or similar rights other than in accordance with applicable law; |
| viii. | that purports to create a trust, power of attorney or other fiduciary relationships; |
| ix. | relating to payment of late charges, interest (or discount or equivalent amounts), premium, “make-whole” payments, collection costs or fees at a rate or in an amount, after or upon the maturity or acceleration of the liabilities evidence or secured thereby or after or during the continuance of any default or other circumstance, or upon prepayment, that a court would determine in the circumstances to be unreasonable, a penalty or a forfeiture; and |
| x. | requiring that any unearned portion of the Company Debt Securities or Perrigo Finance Debt Securities issued at a discount be paid upon acceleration or otherwise earlier than the stated final maturity. |
We express no opinion as to the validity or binding effect of any provision of the Indenture (i) providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction, under applicable law, will convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law, (ii) providing for
| Perrigo Company | - 6 - | June 12, 2020 |
governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency or (iii) concerning the enforceability of the waiver of rights or defenses contained in the Indenture relating to waiver of stay, extension or usury laws.
We express no opinion as to (i) whether a U.S. federal court is required to accept venue and (ii) whether a U.S. federal court would have subject matter jurisdiction over any particular dispute brought under the Indenture.
The opinion set forth above is subject to the following qualifications: (i) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws (or related judicial doctrines) now or hereafter in effect affecting creditors’ rights and remedies generally, (ii) general principles of equity including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies, whether such principles are considered in a proceeding at law or in equity, and (iii) the application of any applicable fraudulent conveyance, fraudulent transfer, fraudulent obligation, or preferential transfer law or any law governing the distribution of assets of any person now or hereafter in effect affecting creditors’ rights and remedies generally.
The opinion expressed herein is limited to the laws of the State of New York, as currently in effect, and no opinion is expressed with respect to any other laws or any effect that such other laws may have on the opinion expressed herein. The opinion expressed herein is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. This letter is given only as of the time of its delivery, and we undertake no responsibility to update or supplement this letter after its delivery.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to this firm under the captions “Validity of Securities” in the Prospectus and “Validity of Securities” in any Prospectus Supplement. In giving these consents, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Perrigo Company plc and Perrigo Finance Unlimited for the registration of debt securities, guarantee of debt securities, ordinary shares and preferred shares and to the incorporation by reference therein of our reports dated February 27, 2020, with respect to the consolidated financial statements of Perrigo Company plc, and the effectiveness of internal control over financial reporting of Perrigo Company plc included in its Annual Report (Form 10-K) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Grand Rapids, Michigan
June 12, 2020
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2) |
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
| A National Banking Association | 94-1347393 | |
| (Jurisdiction of incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification Number) | |
| 101 North Phillips Avenue Sioux Falls, South Dakota |
57104 | |
| (Address of principal executive offices) | (Zip code) | |
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
Perrigo Company plc
Perrigo Finance Unlimited Company
(Exact name of obligor as specified in its charter)
| Ireland Ireland |
Not Applicable Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) | |
| The Sharp Building Hogan Place Dublin 2, Ireland |
D02 TY74 | |
| (Address of principal executive offices) | (Zip code) | |
Debt Securities of Perrigo Company plc
Debt Securities of Perrigo Finance Unlimited Company
Guarantees by Perrigo Company plc of Debt Securities
Guarantees by Perrigo Finance Unlimited Company of Debt Securities
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee –
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate trust powers.
| Item 2. | Affiliations with the obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.
| Item 15. | Foreign Trustee. |
Identify the order or rule pursuant to which the foreign trustee is authorized to act as sole trustee under indentures qualified under the Act.
Not applicable.
| Item 16. | List of exhibits. |
List below all exhibits filed as a part of this Statement of Eligibility.
| Exhibit 1. | A copy of the Articles of Association of the trustee as now in effect.* | |
| Exhibit 2. | A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated November 1, 2019.* | |
| Exhibit 3. | A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated November 1, 2019.* | |
| Exhibit 4. | A copy of the existing bylaws of the trustee.* | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the trustee required by Section 321(b) of the Act. | |
| Exhibit 7. | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. | |
| * | Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25.1 to the Filing S-3ASR dated December 20, 2019 of Cboe Global Markets, Inc., file number 333-235649. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 11th day of June, 2020.
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Gregory S. Clarke | |
| Name: | Gregory S. Clarke | |
| Title: | Vice President | |
EXHIBIT 6
June 11, 2020
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
| Very truly yours, |
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
| /s/ Gregory S. Clarke |
| Gregory S. Clarke Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2020, filed in accordance with 12 U.S.C. §161 for National Banks.
| Dollar Amounts In Millions |
||||||||
| ASSETS |
||||||||
| Cash and balances due from depository institutions: |
||||||||
| Noninterest-bearing balances and currency and coin |
$ | 21,745 | ||||||
| Interest-bearing balances |
123,531 | |||||||
| Securities: |
||||||||
| Held-to-maturity securities |
169,848 | |||||||
| Available-for-sale securities |
242,111 | |||||||
| Equity Securities with readily determinable fair value not held for trading |
122 | |||||||
| Federal funds sold and securities purchased under agreements to resell: |
||||||||
| Federal funds sold in domestic offices |
82 | |||||||
| Securities purchased under agreements to resell |
58,438 | |||||||
| Loans and lease financing receivables: |
||||||||
| Loans and leases held for sale |
14,855 | |||||||
| Loans and leases, net of unearned income |
968,033 | |||||||
| LESS: Allowance for loan and lease losses |
10,893 | |||||||
| Loans and leases, net of unearned income and allowance |
957,140 | |||||||
| Trading Assets |
58,848 | |||||||
| Premises and fixed assets (including capitalized leases) |
11,733 | |||||||
| Other real estate owned |
235 | |||||||
| Investments in unconsolidated subsidiaries and associated companies |
13,202 | |||||||
| Direct and indirect investments in real estate ventures |
12 | |||||||
| Intangible assets |
32,598 | |||||||
| Other assets |
59,196 | |||||||
|
|
|
|||||||
| Total assets |
$ | 1,763,696 | ||||||
|
|
|
|||||||
| LIABILITIES |
||||||||
| Deposits: |
||||||||
| In domestic offices |
$ | 1,403,302 | ||||||
| Noninterest-bearing |
452,458 | |||||||
| Interest-bearing |
950,844 | |||||||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs |
44,243 | |||||||
| Noninterest-bearing |
858 | |||||||
| Interest-bearing |
43,385 | |||||||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||||||
| Federal funds purchased in domestic offices |
2,055 | |||||||
| Securities sold under agreements to repurchase |
6,389 | |||||||
| Dollar Amounts In Millions |
||||
| Trading liabilities |
15,841 | |||
| Other borrowed money |
76,704 | |||
| Subordinated notes and debentures |
12,499 | |||
| Other liabilities |
32,411 | |||
|
|
|
|||
| Total liabilities |
$ | 1,593,444 | ||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
519 | |||
| Surplus (exclude all surplus related to preferred stock) |
114,728 | |||
| Retained earnings |
54,130 | |||
| Accumulated other comprehensive income |
844 | |||
| Other equity capital components |
0 | |||
|
|
|
|||
| Total bank equity capital |
170,221 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
31 | |||
|
|
|
|||
| Total equity capital |
170,252 | |||
|
|
|
|||
| Total liabilities, and equity capital |
$ | 1,763,696 | ||
|
|
|
|||
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge
and belief.
John R. Shrewsberry
Sr. EVP & CFO
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us
and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
Directors
Maria R. Morris
Theodore F. Craver, Jr.
Juan A. Pujadas