Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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APPLERA CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-1534213
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
301 MERRITT 7
NORWALK, CONNECTICUT 06851-1070
(Address of Principal Executive Offices, including Zip Code)
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APPLERA CORPORATION DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
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WILLIAM B. SAWCH
Senior Vice President and General Counsel
APPLERA CORPORATION
301 Merritt 7
Norwalk, Connecticut 06851-1070
(203) 840-2000
(Name, Address, and Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering Amount of
Title of Securities to be Registered Registered Per Share (1) Price (1) Registration Fee
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Deferred Compensation Obligations (2) $15,000,000 100% $15,000,000 $1,380
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1. Estimated solely for purposes of determining the registration fee.
2. The Deferred Compensation Obligations are unsecured obligations of Applera
Corporation to pay deferred compensation in the future in accordance with
the terms of the Applera Corporation Deferred Compensation Plan.
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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Applera Corporation (the "Company")
with the Securities and Exchange Commission are incorporated in this
Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2002.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2002.
(3) The Company's Current Reports on Form 8-K filed September 27, 2002,
and October 7, 2002.
All documents subsequently filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
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 their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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 Registration Statement.
Item 4. Description of Securities.
The securities being registered under this Registration Statement
consist of obligations (the "Obligations") of the Company to pay compensation
deferred by eligible employees under the terms of the Applera Corporation
Deferred Compensation Plan, formerly known as The Perkin-Elmer Corporation
Deferred Compensation Plan (the "Plan"). Subject to the terms of the Plan, an
eligible employee (a "Participant") may enter into an agreement with the Company
providing for the deferral of the payment of a portion of compensation payable
by the Company to the Participant based on elections made by each Participant. A
Participant's deferrals are credited to a record keeping account maintained by
the Company in the name of the Participant. Each Participant account will be
periodically adjusted to reflect the investment experience of one or more
investment benchmarks designated under the Plan and selected by the Participant.
However, the Company is not obligated to invest in any funds corresponding to
these benchmarks, which are used solely for purposes of crediting or debiting a
Participant's account with deemed earnings or losses.
A Participant will be at all times fully vested in the amounts credited
to his or her account. The amounts credited to a Participant's account will be
paid upon the earliest of (i) a pre-retirement distribution date designated by
the Participant in accordance with the Plan, (ii) termination of the
Participant's employment, or (iii) the Participant's retirement or death.
Payment of such amounts may be made in a lump sum or in installments over a
period of up to 15 years, depending on the applicable terms of the Plan and the
Participant's payment election. The Company reserves the right to accelerate the
payment of any Participant's account balance in the event of a termination of
the Plan. A Participant's rights to and under the Obligations cannot be
assigned, alienated, sold, transferred, pledged or encumbered, except by way of
transfer to the Participant's beneficiary or estate upon the Participant's
death, pursuant to the terms of the Plan.
The Obligations are general unsecured obligations of the Company which
rank pari passu with other unsecured and unsubordinated indebtedness of the
Company that may be outstanding from time to time. No sinking fund has or will
be established with respect to the Obligations. The Obligations are not subject
to redemption, in whole or in part, prior to the payment dates applicable under
the Plan, and the Obligations are not convertible into any other security of the
Company. The Company reserves the right to amend or terminate the Plan at any
time, except that no such amendment or termination can reduce the amount then
credited to a Participant's account. In the event the Plan is terminated prior
to a Change in Control (as defined in the Plan), the Company has the right, in
its sole discretion, and
notwithstanding any elections made by a Participant, to pay the Obligations in a
lump sum or in installments over a period of up to 15 years. After a
Change in Control, the Company is required to pay the Obligations in a lump sum.
Except as stated above, the Obligations do not enjoy the benefit of any
affirmative or negative pledges or covenants by the Company. The Company has
established a trust to provide for the payment of the Obligations. Subject to
the terms of the trust agreement, the Company retains discretion to determine
the amount and timing of any contributions to the trust. The establishment of
the trust does not affect the status of the Obligations as general unsecured
obligations of the Company. No Participant will have any preferred claim to, or
beneficial interest in, any assets of the trust, and the assets of the trust are
and will remain subject to the claims of the Company's creditors. The trustee of
the trust is required to administer the trust in accordance with its terms, but
the trustee's obligations and authority are limited to the amounts which may be
held in the trust from time to time and the trustee may be subject to the
direction of the Company with respect to the payment of Obligations.
Accordingly, the trustee of the trust does not have any independent obligation
or authority to act on behalf of any Participant or beneficiary and each
Participant and beneficiary will be responsible for acting on his or her own
behalf with respect to the Obligations, including with respect to, among other
things, the giving of notices, responding to requests for consents, waivers or
amendments, enforcing covenants and taking action upon default.
The foregoing summary of the Plan is qualified in its entirety by
reference to the terms and conditions of the Plan.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with the Obligations offered pursuant to
the Plan have been passed upon by Thomas P. Livingston, Esq., Secretary of the
Company. Mr. Livingston is eligible to participate in the Plan and owns Common
Stock of the Company and options to purchase Common Stock of the Company with an
aggregate value in excess of $50,000.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits the
Company's board of directors to indemnify any person against expenses (including
attorneys' 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 (except settlements or judgments in derivative suits), suit or
proceeding in which such person is made a party by reason of his or her being or
having been a director, officer, employee or agent of the Company, in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the Securities Act of 1933. The Delaware General Corporation Law provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors, or otherwise.
The Company's certificate of incorporation and by-laws provide for
indemnification of its directors and officers to the fullest extent permitted by
law.
As permitted by sections 102 and 145 of the Delaware General
Corporation Law, the Company's certificate of incorporation eliminates a
director's personal liability for monetary damages to the Company and its
stockholders arising from a breach or alleged breach of a director's fiduciary
duty except for liability under section 174 of the Delaware General Corporation
Law, for liability for any breach of the director's duty of loyalty to the
Company or its stockholders, for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, or for any
transaction from which the director derived an improper personal benefit.
The directors and officers of the Company are covered by insurance
policies indemnifying against certain liabilities, including certain liabilities
arising under the Securities Act of 1933 that might be incurred by them in such
capacities and against which they cannot be indemnified by the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit 4 - Applera Corporation Deferred Compensation Plan
(incorporated by reference to Exhibit 10.2 to Quarterly
Report on Form 10-Q of the Company for the quarter ended
December 31, 2001 (Commission file no. 1-4389)).
Exhibit 5 - Opinion of Thomas P. Livingston, Esq. (including consent).
Exhibit 23.1 - Consent of PricewaterhouseCoopers LLP.
Exhibit 23.2 - Consent of Thomas P. Livingston (included in Exhibit 5).
Exhibit 24 - Power of Attorney (contained on the signature pages hereof).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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 Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
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 to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post- effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in 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; and
(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 of 1933, each filing of the
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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the 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 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 Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Norwalk, State of Connecticut, on November 27, 2002.
APPLERA CORPORATION
By: /s/ William B. Sawch
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William B. Sawch
Senior Vice President and
General Counsel
POWER OF ATTORNEY
We, the undersigned directors and officers of the Company, do hereby
constitute and appoint Dennis L. Winger and William B. Sawch, or either of them,
our true and lawful attorneys and agents, to do any and all acts and things in
our name and on our behalf in our capacities as directors and officers and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933 and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or any
of us in our names in the capacities indicated below, any and all amendments
(including post-effective amendments) hereto and we do hereby ratify and confirm
all that said attorneys and agents, or either of them, shall 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.
/s/ Tony L. White Chairman of the Board, November 27, 2002
------------------------------------ President and
Tony L. White Chief Executive Officer
(Principal Executive Officer)
/s/ Dennis L. Winger Senior Vice President and November 27, 2002
------------------------------------ Chief Financial Officer
Dennis L. Winger (Principal Financial Officer)
/s/ Vikram Jog Controller November 27, 2002
------------------------------------ (Principal Accounting Officer)
Vikram Jog
/s/ Richard H. Ayers Director November 27, 2002
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Richard H. Ayers
/s/ Jean-Luc Belingard Director November 27, 2002
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Jean-Luc Belingard
/s/ Robert H. Hayes Director November 27, 2002
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Robert H. Hayes
/s/ Arnold J. Levine Director November 27, 2002
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Arnold J. Levine
/s/ Theodore E. Martin Director November 27, 2002
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Theodore E. Martin
/s/ Georges C. St. Laurent, Jr. Director November 27, 2002
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Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman Director November 27, 2002
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Carolyn W. Slayman
/s/ Orin R. Smith Director November 27, 2002
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Orin R. Smith
/s/ James R. Tobin Director November 27, 2002
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James R. Tobin
EXHIBIT INDEX
Exhibit No. Description
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Exhibit 5 Opinion of Thomas P. Livingston, Esq. (including consent).
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP.
Exhibit 23.2 Consent of Thomas P. Livingston, Esq. (included in Exhibit 5).