-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SSHYSloGoxXSetKvLHhTfNJl6cZAKSe12Yw7pg2kODka8nt0jEXQyhm9rzYiHNZj PeL3LSUjjC+iRNujzrnjZw== 0000950157-02-000273.txt : 20020424 0000950157-02-000273.hdr.sgml : 20020424 ACCESSION NUMBER: 0000950157-02-000273 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020424 EFFECTIVENESS DATE: 20020424 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALCON INC CENTRAL INDEX KEY: 0001167379 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 980205094 STATE OF INCORPORATION: V8 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-86882 FILM NUMBER: 02620060 BUSINESS ADDRESS: STREET 1: 6201 SOUTH FREEWAY CITY: FORT WORTH STATE: TX ZIP: 76134 BUSINESS PHONE: 8175516878 MAIL ADDRESS: STREET 1: BOSCH 69 6331 HUNENBERG CITY: SWITZERLAND STATE: V8 ZIP: 0000 S-8 1 forms8.txt REGISTRATION STATEMENT Registration No. 333- As filed with the Securities and Exchange Commission on April 24, 2002. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Alcon, Inc. (Exact Name of Registrant as Specified in its Charter) Switzerland (State or Other Jurisdiction of Incorporation or Organization) 98-0205094 ---------- (I.R.S. Employer Identification No.) Bosch 69 P.O. Box 62 6331 Hunenberg, Switzerland --------------------------- (Address of Principal Executive Offices) (Zip Code) 2002 Alcon Incentive Plan ------------------------- (Full Title of the Plan) Timothy R.G. Sear Alcon Laboratories, Inc. 6201 South Freeway Fort Worth, Texas 76134-2099 ---------------------------- (Name and Address of Agent For Service) (817) 293-0450 (Telephone Number, Including Area Code, of Agent For Service) 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 Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Per Offering Registration Registered Registered Share(1) Price(1) Fee - ------------------------------------------------------------------------------ Common shares, 27,834,301 $32.20 $896,264,492 $82,456 Par Value CHF 0.20 Shares Per Share - ------------------------------------------------------------------------------ - -------- (1) Estimated solely for the purpose of calculating the registration fee 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 prices for shares of Common Stock reported on the New York Stock Exchange on April 23, 2002. 3 Explanatory Note This Registration Statement is being filed for the purpose of registering 27,834,301 common shares of Alcon, Inc. (the "Company") to be issued pursuant to the 2002 Alcon Incentive 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"); and (ii) the description of the Company's common shares contained in the Company's Registration Statement on Form 8-A dated March 14, 2002, including any subsequent amendment or any report filed for the purpose of updating such description (Registration No. 001-31269). All annual reports of the 2002 Alcon Incentive Plan subsequently filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and all documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of 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. Item 4. Description of Securities. 4 Not applicable. Item 5. Interests of Named Experts and Counsel. None. 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 expects to obtain directors' and officers' liability insurance for the members of the Board of Directors and certain officers of the Registrant and the officers and directors of certain subsidiaries of the Registrant. The Registrant also expects to enter 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 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 2002 Alcon Incentive Plan (incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the Company's Form F-1, filed with the Commission on March 14, 2002 (Registration No. 333-83286)). 4.2 Articles of Association of the Company dated as of March 25, 2002 (incorporated by reference to Exhibit 99.1 to the Company's Report on Form 6-K, filed with the Commission on April 18, 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 as to the legality of the securities being registered. 23.1 Consent of Homburger Rechtsanwalte (included in Exhibit 5.1). 23.2 Consent of KPMG LLP, Independent Auditors. 5 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 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 6 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. 7 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 Hunenberg, Canton of Zug, Switzerland on April 24, 2002. ALCON INC. By: /s/ Timothy R.G. Sear ------------------------------------ Name: Timothy R.G. Sear Title: Chairman and President By: /s/ Guido Koller ------------------------------------ Name: Guido Koller Title: Senior Vice President 8 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 /s/ Timothy R.G. Sear Chairman, President and April 24, 2002 - ------------------------------- Director Timothy R.G. Sear (Principal executive officer) /s/ Guido Koller Senior Vice President April 24, 2002 - ------------------------------- (Principal financial and Guido Koller accounting officer) /s/ Werner Bauer Director April 24, 2002 - ------------------------------- Werner Bauer /s/ Francisco Castaner Director April 24, 2002 - ------------------------------- Francisco Castaner /s/ Wolfgang H. Reicherberger Director April 24, 2002 - ------------------------------- Wolfgang H. Reichenberger /s/ Lodewijk J.R. de Vink Director April 24, 2002 - ------------------------------- Lodewijk J.R. de Vink EXHIBIT INDEX Exhibit No. Description 4.1 2002 Alcon Incentive Plan (incorporated by reference to Exhibit 10.2 to Amendment No. 1 to the Company's Form F-1, filed with the Commission on March 14, 2002 (Registration No. 333-83286)). 4.2 Articles of Association of the Company (incorporated by reference to Exhibit 99.1 to the Company's Report on Form 6K, filed with the Commission on April 18, 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 0pinion of Homburger Rechtsanwalte as to the legality of the securities being registered. 23.1 Consent of Homburger Rechtsanwalte (included in Exhibit 5.1). 23.2 Consent of KPMG LLP, Independent Auditors. EX-5.1 3 ex5-1.txt OPINION Exhibit 5.1 Dr. Iur. Daniel Daeniker Rechtsanwalt Homburger Rechtsanwalte Weinbergstrasse 56/58 CH-8006 Zurich Postrach 338/CH-8035 Zurich Telefon +411 265 35 35 Fax +411 265 35 11 daniel.daniker@homburger.ch April 24, 2002 DADP/LUG 305306/DADP/00316.doc Alcon, Inc. Bosch 69 CH-6331 Hunenberg Alcon, Inc. Registration Statement on Form S-8 Exhibit 5 Opinion Ladies and Gentlemen: We have been retained as special Swiss counsel to Nestle S.A., the sole shareholder of Alcon, Inc., a corporation incorporated under the laws of Switzerland (ALCON), and, for purposes of this opinion, by Alcon, in connection with the registration statement on Form S-8, to be filed wit the United States Securities and Exchange Commission (the SEC) on the date hereof (the REGISTRATION STATEMENT) under the United States Securities Act of 1933, as amended (the ACT), with respect to the issuance of 27,834,301 common shares, par value CHF 0.20 per share (the COMMON SHARES) of Alcon pursuant to the 2002 Alcon Incentive Plan (the PLAN). 1. DOCUMENTS REVIEWED In connection with this opinion, we have reviewed the following documents: (i) articles of association of Alcon dated as of March 25, 2002; (ii) organizational regulations of Alcon, dated as of March 21, 2002; (iii) the Registration Statement, and 2 (iv) excerpt from the Commercial Register of the Canton of Zug, Switzerland, dated March 28, 2002, relating to Alcon. No documents have been reviewed by ourselves in connection with this opinion other than those listed above. Accordingly, our opinion is limited to the above documents and their impact on the parties under Swiss law. No documents have been reviewed by ourselves in connection with this opinion other than those listed above. Accordingly, our opinion is limited to the above documents and their impact on the parties under Swiss law. 2. ASSUMPTIONS In rendering the opinion below, we have assumed the following: (a) the filing of Registration Statement with the United States Securities and Exchange Commission has been authorized by all necessary actions under all applicable laws other than Swiss law; (b) the offering of the Common Shares has been conducted in the manner described in the Registration Statement; (c) all representations and warranties made by any parties in any agreement governing the offering of Common Shares were true and accurate as of the dates they were made or deemed to be repeated; and (d) all documents purporting to be copies or originals are complete and conform to the originals. 3. OPINION Based on the foregoing assumptions and subject to the qualifications set out below, we express the following opinions: 1. Alcon has been duly incorporated and is validly existing as a corporation (Aktiengesellschaft) under the laws of Switzerland, with corporate power and authority to its properties and conduct its business as described in the Registration Statement. 3 2. The Common Shares have been authorized and, when issued in accordance with the terms of the Plan, will, pursuant to Swiss law, be validly issued as fully paid and non-assessable. 3. If the issuance of Common Shares is conducted in accordance with the terms of the Plan, the holders of outstanding Common Shares of Alcon are not and will not be entitled to pre-emptive or other rights to acquire the Common Shares being issued pursuant to the Plan. 4. QUALIFICATIONS The above opinion is subject to the following qualifications: (x) we are admitted to the Zurich bar and do not hold ourselves to be experts in any laws other than the laws of Switzerland. Accordingly, our opinion is confined to Swiss law. We have abstained from examining any issues of any other jurisdiction. (y) This opinion relates to the laws of Switzerland in effect on the date hereof. Such laws are subject to change. (z) We express no opinion on the correctness or completeness of the Registration Statement. * * * We consent to the filing of this opinion as Exhibit 5 to the Registration Statement. This opinion shall be governed by and construed in accordance with the laws of Switzerland. Very sincerely yours, HOMBURGER RECHTSANWALT /s/ Daniel Daeniker Dr. Daniel Daeniker EX-23 4 ex23-2.txt CONSENT OF KPMG EXHIBIT 23.2 CONSENT OF KPMG LLP, INDEPENDENT AUDITORS The Board of Directors Alcon, Inc.: We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 1, 2002 on the consolidated balance sheets of Alcon, Inc. and subsidiaries as of December 31, 2000 and 2001, and the related consolidated statements of earnings, shareholder's equity and comprehensive income, and cash flows for each of the three years in the period ended December 31, 2001. /s/ KPMG LLP Fort Worth, Texas April 23, 2002 -----END PRIVACY-ENHANCED MESSAGE-----