Registration No. 333-
As filed with the Securities and Exchange Commission on October 25, 2002.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Alcon, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Switzerland
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(State or Other Jurisdiction of Incorporation or Organization)
98-0205094
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(I.R.S. Employer Identification No.)
Bosch 69
P.O. Box 62
6331 Hunenberg, Switzerland
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(Address of Principal Executive Offices) (Zip Code)
Alcon Executive Deferred Compensation Plan
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(Full Title of the Plan)
Timothy R.G. Sear
Alcon Laboratories, Inc.
6201 South Freeway
Fort Worth, Texas 76134-2099
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(Name and Address of Agent For Service)
(817) 293-0450
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(Telephone Number, Including Area Code, of Agent For Service)
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Copies to:
John T. Gaffney, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
(212) 474-1000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Security Price(1) Fee
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Common Shares,
par value CHF 0.20
per share 3,000,000 $37.95 (2) $113,850,000 $10,474.20
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Deferred $20,000,000 100% $20,000,000 $1,840
Compensation
Obligations(3)
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) In accordance with Rule 457(c) and Rule 457(h) under the Securities Act of
1933, based on the average of the high and low trading prices for common
shares reported on the New York Stock Exchange on October 24, 2002.
(3) These obligations are obligations of Alcon, Inc. to pay deferred
compensation in the future in accordance with the terms of the Alcon
Executive Deferred Compensation Plan.
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Explanatory Note
This Registration Statement is being filed for the purpose of
registering deferred compensation obligations of Alcon, Inc. (the "Company") and
common shares, par value CHF 0.20 per share, of the Company, which obligations
and shares may be issued to executives of various subsidiaries of the Company
pursuant to the Alcon Executive Deferred Compensation Plan (the "Plan"), a copy
of which is filed herewith as Exhibit 4.1.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Commission.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are
incorporated herein by reference and made a part hereof:
(i) the prospectus of the Company filed pursuant to Rule 424(b)
under the Securities Act, dated March 20, 2002, with respect
to the registration statement on Form F-1, as amended
(Registration No. 333-83286) (the "Prospectus");
(ii) the description of the Company's common shares contained in
the Company's Registration Statement on Form 8-A dated March
14, 2002 (Registration No. 001-31269), including any
subsequent amendment or report filed for the purpose of
updating such description; and
(iii) Reports of Foreign Private Issuer on Form 6-K dated May 8,
2002, May 21, 2002, May 31, 2002, June 13, 2002, August 1,
2002, September 26, 2002, September 30, 2002, October 10,
2002, and October 21, 2002, furnished to the Commission.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that deregisters all securities 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. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document that is incorporated by reference herein
modifies or supersedes such earlier statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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Item 4. Description of Securities.
The deferred compensation obligations (the "Obligations") being
registered represent obligations of the Company to pay deferred compensation in
the future in accordance with the terms.
The Obligations are general unsecured obligations of the Company to
pay deferred compensation in the future according to the terms of the Plan from
the general assets of the Company, and rank equally with other unsecured and
unsubordinated indebtedness of the Company.
The amount of eligible compensation to be deferred by each participant
is determined in accordance with the terms of the Plan. Amounts credited to a
participant's Plan account are credited with deemed investment returns equal to
the experience of applicable investment alternatives offered under the Plan. The
Obligations generally are payable in form of a lump-sum distribution or in
installments, at the election of the participant made in accordance with the
terms of the Plan. Certain of the Obligations under the Plan are payable in the
Company's common shares.
Participants or beneficiaries may not sell, transfer, anticipate,
assign, hypothecate to or otherwise dispose of any right to interest in the
Plan. A participant may designate one or more beneficiaries to receive any
portion of Obligations payable in the event of the participant's death.
The Company may pay all or a part of a participant's vested
Obligations as an in-service withdrawal. The Company also reserves the right to
amend or terminate the Plan at any time and for any reason including an
amendment that would accelerate the payment of Obligations.
Other than Obligations under the Plan that are payable in shares, the
Obligations are not convertible into any other security of the Company. The
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company. No trustee has been
appointed to take action with respect to the Obligations and each participant in
the Plan will be responsible for enforcing his or her own rights with respect to
the Obligations.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article X, Section 3 of the Registrant's Organizational Regulations
provides that the Registrant may obtain directors' and officers' liability
insurance for members of the Board of Directors of the Registrant and key
executive officers of the Registrant and its subsidiaries. Pursuant to this
authority, the Registrant has obtained directors' and officers' liability
insurance for the members of the Board of Directors and certain officers of the
Registrant and the directors and officers of certain subsidiaries of the
Registrant.
The Registrant has entered into Indemnification Agreements with each
of the members of its Board of Directors and certain of its officers pursuant to
which the Registrant will advance funds to members of the Registrant's Board of
Directors and these officers to defray expenses, or reimburse the expenses,
incurred by such persons arising out of proceedings related to their actions in
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such capacities. The availability of the advance and/or reimbursement of
expenses is subject to a determination by the disinterested members of the Board
of Directors of the Registrant that the person seeking an advance or
reimbursement of expenses acted in good faith and in the best interests of the
Registrant.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit
No. Description
4.1 Alcon Executive Deferred Compensation Plan.
4.2 Articles of Association of the Company dated as of May 28, 2002
(incorporated by reference to Exhibit 3.1 to the Company's Report on
Form 6-K, dated May 31, 2002).
4.3 Organizational Regulations of the Company (incorporated by reference
to Exhibit 3.2 to Amendment No. 1 to the Company's Form F-1, filed
with the Commission on March 14, 2002 (Reg. No. 333-83286)).
5.1 Opinion of Homburger Rechtsanwalte.
5.2 Opinion of Locke Liddell & Sapp LLP.
23.1 Consent of Homburger Rechtsanwalte (included in Exhibit 5.1).
23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.2).
23.3 Consent of KPMG LLP, Independent Auditors.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change in such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information
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required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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 15(d) of the Exchange
Act (and, where applicable, 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 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 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.
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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 Hhnenberg, Canton of Zug, Switzerland on October 25,
2002.
ALCON INC.
By: /s/ Timothy R.G. Sear
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Name: Timothy R.G. Sear
Title: Chairman and President
By: /s/ Guido Koller
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Name: Guido Koller
Title: Senior Vice President
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s Timothy R.G. Sear Chairman and President October 25, 2002
- ----------------------------- (Principal Executive Officer)
Timothy R.G. Sear
/s/ Guido Koller Senior Vice President October 25, 2002
- ----------------------------- (Principal Financial and
Guido Koller Accounting Officer)
/s/ Timothy R.G. Sear Director October 25, 2002
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Timothy R.G. Sear
/s/ M. Werner Bauer Director October 25, 2002
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M. Werner Bauer
/s/ Francisco Castaner Director October 25, 2002
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Francisco Castaner
/s/ Peter Brabeck-Letmathe Director October 25, 2002
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Peter Brabeck-Letmathe
/s/ Wolfgang H. Reichenberger Director October 25, 2002
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Wolfgang H. Reichenberger
/s/ James I. Cash, Jr. Director October 25, 2002
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James I. Cash, Jr.
/s/ Phillip H. Geier, Jr. Director October 25, 2002
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Phillip H. Geier, Jr.
/s/ Lodewijk J.R. de Vink Director October 25, 2002
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Lodewijk J.R. de Vink
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EXHIBIT INDEX
Exhibit
No. Description
4.1 Alcon Executive Deferred Compensation Plan.
4.2 Articles of Association of the Company dated as of May 28, 2002
(incorporated by reference to Exhibit 3.1 to the Company's
Report on Form 6-K dated May 31, 2002).
4.3 Organizational Regulations of the Company (incorporated by
reference to Exhibit 3.2 to Amendment No. 1 to the Company's
Form F-1, filed with the Commission on March 14, 2002)
(Registration No. 333-83286)).
5.1 Opinion of Homburger Rechtsanwalte.
5.2 Opinion of Locke Liddell & Sapp LLP.
23.1 Consent of Homburger Rechtsanwalte (included in Exhibit 5.1).
23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.2).
23.3 Consent of KPMG LLP, Independent Auditors.