ZIMMER HOLDINGS INC. FORM S-8 (Securities Registration: Employee Benefit Plan) Filed 1/20/2006

Transcription

1 ZIMMER HOLDINGS INC FORM S-8 (Securities Registration: Employee Benefit Plan) Filed 1/20/2006 Address 345 EAST MAIN STREET WARSAW, Indiana Telephone CIK Industry Medical Equipment & Supplies Sector Healthcare Fiscal Year 12/31

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3 As filed with the Securities and Exchange Commission on January 20, 2006 Registration No UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ZIMMER HOLDINGS, INC. (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 345 East Main Street Warsaw, Indiana (Address of Principal Executive Offices) (Zip Code) RESTATED ZIMMER HOLDINGS, INC. DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS (Full title of the plan) Chad F. Phipps Associate General Counsel and Secretary Zimmer Holdings, Inc. 345 East Main Street Warsaw, Indiana (Name and address of agent for service) (574) (Telephone number, including area code, of agent for service) Copy to: David C. Worrell Baker & Daniels LLP 300 North Meridian Street, Suite 2700 Indianapolis, Indiana (317) CALCULATION OF REGISTRATION FEE Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Aggregate Offering Amount of to be Registered Registered Per Share Price Registration Fee Common Stock, $0.01 par value 200,000 (1) $ (2) $ 14,186,000 (2) $ 1,518 (1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act ), this Registration Statement also registers

4 additional shares of Common Stock as may be offered or issued to prevent dilution resulting from stock splits, stock dividends, and similar transactions in accordance with the anti-dilution provisions of the Restated Zimmer Holdings, Inc. Deferred Compensation Plan For Non- Employee Directors. (2) Estimated solely for the purpose of calculating the registration fee and computed in accordance with Rule 457(c) and (h) under the Securities Act using the average of the high and low sale prices of the Common Stock as reported by the New York Stock Exchange on January 17, 2006, which was $70.93 per share.

5 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS As permitted by Rule 428 under the Securities Act of 1933, as amended (the Securities Act ), this registration statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this registration statement as required by Rule 428(b). Such documents are not being filed with the Securities and Exchange Commission (the Commission ) as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

6 Item 3. Incorporation of Documents by Reference. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The following documents heretofore filed by Zimmer Holdings, Inc. (the Registrant ) with the Commission are incorporated by reference in this registration statement: (1) The Registrant s Annual Report on Form 10-K for the fiscal year ended December 31, 2004; (2) The Registrant s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005, June 30, 2005 and September 30, 2005; (3) The Registrant s Current Reports on Form 8-K filed with the Commission on January 12, 2005, January 21, 2005, February 7, 2005, February 23, 2005, March 22, 2005, April 5, 2005, April 20, 2005, May 20, 2005, May 20, 2005, December 15, 2005 and January 11, 2006; (4) The description of the Registrant s Common Stock contained in the Registrant s Registration Statement on Form 10-12B filed under the Securities Exchange Act of 1934, as amended (the Exchange Act ) (File No ), including any amendment or report filed for the purpose of updating such description. In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities offered hereby then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Nothing in this registration statement shall be deemed to incorporate information furnished but not filed on Form 8-K. The Registrant will promptly provide without charge to each person to whom a prospectus is delivered a copy of any or all information that has been incorporated herein by reference (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into such information) upon the written or oral request of such person directed to the Secretary of the Registrant at its principal offices, 345 East Main Street, Warsaw, Indiana 46580, telephone (574) Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law (the DGCL ) provides that a corporation may indemnify any current or former director, officer or employee or other individual against expenses, judgments, fines and amounts paid in settlement in connection with civil, criminal, administrative or investigative actions or proceedings, other than a derivative action by or in the right of the corporation, if the director, officer, employee or other individual acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where the person seeking

7 indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation s by-laws, disinterested director vote, stockholder vote, agreement or otherwise. The Registrant s restated certificate of incorporation provides that each person who was or is made or is threatened to be made a party to any action or proceeding by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director or officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, will be indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended to provide broader indemnification rights than authorized prior to such amendment. Such rights are not exclusive of any other right which any person may have or thereafter acquire under any statute, provision of the restated certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. The Registrant s restated certificate of incorporation also specifically authorizes the Registrant to maintain insurance and to grant similar indemnification rights to its employees or agents. The Registrant has provided, consistent with the DGCL, in its restated certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for: any breach of the director s duty of loyalty to the corporation or its stockholders; acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; payments of unlawful dividends or unlawful stock repurchases or redemptions; or any transactions from which the director derived an improper personal benefit. Neither the amendment nor repeal of such provision will eliminate or reduce the effect of such provision in respect of any matter occurring, or any cause of action, suit or claim for that, but for such provision, would accrue or arise prior to such amendment or repeal. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. The list of Exhibits is incorporated herein by reference to the Index of Exhibits. Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) (ii) To include any prospectus required by Section 10(a)(3) of the Securities Act; 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; and

8 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and each filing of an employee benefit plan s annual report pursuant to Section 15(d) of the Exchange Act) 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) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person against the registrant in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

9 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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Warsaw, State of Indiana, on January 19, ZIMMER HOLDINGS, INC. By: /s/ J. Raymond Elliott J. Raymond Elliott Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in their respective capacities and on the respective dates indicated opposite their names. Each person whose signature appears below hereby authorizes each of J. Raymond Elliott, David C. Dvorak, Sam R. Leno and Chad F. Phipps, each with full power of substitution, to execute in the name and on behalf of such person any post-effective amendment to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, making such changes in this Registration Statement as the registrant deems appropriate, and appoints each of J. Raymond Elliott, David C. Dvorak, Sam R. Leno and Chad F. Phipps, each with full power of substitution, attorney-in-fact to sign any amendment and any post-effective amendment to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith. Signature Title Date /s/ J. Raymond Elliott J. Raymond Elliott /s/ Sam R. Leno Sam R. Leno /s/ James T. Crines James T. Crines Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) Executive Vice President, Finance and Corporate Services and Chief Financial Officer (Principal Financial Officer) Senior Vice President, Finance, Operations and Corporate Controller and Chief Accounting Officer (Principal Accounting Officer) January 19, 2006 January 19, 2006 January 19, 2006 /s/ Stuart M. Essig Stuart M. Essig /s/ Larry C. Glasscock Larry C. Glasscock /s/ John L. McGoldrick John L. McGoldrick /s/ Augustus A. White, III Augustus A. White, III Director January 19, 2006 Director January 19, 2006 Director January 19, 2006 Director January 19, 2006

10 INDEX OF EXHIBITS Exhibit No. Description of Exhibit 4.1 Restated Certificate of Incorporation of Zimmer Holdings, Inc. (incorporated herein by reference to Exhibit 3.1 to the Registrant s Current Report on Form 8-K dated November 13, 2001). 4.2 Restated By-Laws of Zimmer Holdings, Inc., together with Amendment No. 1 to the Restated By-Laws of Zimmer Holdings, Inc. (incorporated herein by reference to Exhibit 3 to the Registrant s Quarterly Report on Form 10-Q dated November 14, 2003). 4.3 Specimen Common Stock certificate. 4.4 Restated Zimmer Holdings, Inc. Deferred Compensation Plan for Non-Employee Directors (incorporated herein by reference to Exhibit 10.2 to the Registrant s Current Report on Form 8-K dated December 15, 2005). 5 Opinion of Baker & Daniels LLP regarding legality of the securities being registered Consent of PricewaterhouseCoopers LLP Consent of Baker & Daniels LLP (included in Opinion filed as Exhibit 5). 24 Powers of Attorney (included on the Signature Page of the Registration Statement).

11 EXHIBIT 4.3 NUMBER ZC SHARES COMMON STOCK CUSIP 98956P 10 2 SEE REVERSE FOR CERTAIN DEFINITIONS THIS CERTIFICATE IS TRANSFERABLE IN NEW YORK, NY ZIMMER HOLDINGS, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE THIS CERTIFIES THAT SPECIMEN IS THE OWNER OF FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF Zimmer Holdings, Inc. (hereinafter called the Corporation ), transferable on the books of said Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be held subject to all of the provisions of the Certificate of Incorporation of the Corporation, to all of which the holder by acceptance hereof assents. This Certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. Witness the seal of said Corporation and the signatures of its duly authorized officers. Dated J. Raymond Elliott Chad F. Phipps PRESIDENT AND CHIEF EXECUTIVE OFFICER SECRETARY Countersigned and Registered: THE BANK OF NEW YORK By: Transfer Agent and Registrar Authorized Signature

12 ZIMMER HOLDINGS, INC. ZIMMER HOLDINGS, INC. WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS A STATEMENT OF THE DESIGNATIONS AND THE POWERS, PREFERENCES AND RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF, OF EACH CLASS OF STOCK OR SERIES THEREOF SET FORTH IN THE CERTIFICATE OF INCORPORATION, WHICH THE CORPORATION IS AUTHORIZED TO ISSUE. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT TEN ENT - as tenants by the entireties Custodian... JT TEN - as joint tenants with right of (Cust) (Minor) survivorship and not as tenants in common under Uniform Gifts to Minors Act (State) Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, HEREBY SELL, ASSIGN AND TRANSFER UNTO PLEASE PRINT OR TYPE NAME AND ADDRESS OF ASSIGNEE Name PLEASE INSERT TAXPAYER IDENTIFYING NUMBER OF ASSIGNEE Street City, State and Zip Code SHARES PLEASE PRINT OR TYPE NAME AND ADDRESS OF ASSIGNEE Name PLEASE INSERT TAXPAYER IDENTIFYING NUMBER OF ASSIGNEE Street City, State and Zip Code SHARES

13 PLEASE PRINT OR TYPE NAME AND ADDRESS OF ASSIGNEE Name PLEASE INSERT TAXPAYER IDENTIFYING NUMBER OF ASSIGNEE Street City, State and Zip Code SHARES OF THE COMMON STOCK REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY IRREVOCABLY CONSTITUTE AND APPOINT ATTORNEY TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN-NAMED CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE PREMISES. DATED, X NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERNATION OR ENLARGEMENT OR ANY CHANGE WHATEVER SIGNATURE(S) GUARANTEED: By THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.

14 EXHIBIT 5 January 20, 2006 BAKER & DANIELS LLP 300 North Meridian Street Suite 2700 Indianapolis, Indiana Zimmer Holdings, Inc. 345 East Main Street Warsaw, Indiana Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to Zimmer Holdings, Inc., a Delaware corporation (the Company ), in connection with the preparation and filing with the Securities and Exchange Commission (the Commission ) of the Company s Registration Statement on Form S-8 (the Registration Statement ) under the Securities Act of 1933 (the Act ), registering the offer and sale of up to a total of 200,000 shares of the Company s Common Stock, $0.01 par value (the Shares ), pursuant to the Restated Zimmer Holdings, Inc. Deferred Compensation Plan for Non- Employee Directors (the Plan ). We have examined the Registration Statement, the Restated Certificate of Incorporation and Restated By-Laws of the Company, minutes of the proceedings of the Company s Board of Directors authorizing the issuance of the Shares, and such other documents as we have considered necessary. In such examination, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the aforesaid documents, the authenticity of all documents submitted to us as originals, the conformity with originals of all documents submitted to us as copies (and the authenticity of the originals of such copies), and that all public records reviewed are accurate and complete. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Registration Statement shall have become effective and the Shares have been issued in accordance with the Plan, the Shares will be validly issued, fully paid and nonassessable. This opinion letter is solely for the use of the Company in connection with the Registration Statement. This opinion may not be relied on by any other person or in any other connection without our prior written approval. This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder. Very truly yours, /s/ BAKER & DANIELS LLP

15 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 9, 2005 relating to the financial statements, financial statement schedule, management s assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting of Zimmer Holdings, Inc., which appears in Zimmer Holdings, Inc. s Annual Report on Form 10-K for the year ended December 31, /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Chicago, Illinois January 19, 2006 End of Filing 2006 EDGAR Online, Inc.