As filed with the Securities and Exchange Commission on December 7, 1999
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PE 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 No.)
761 Main Avenue
Norwalk, Connecticut 06859-1000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Willam B. Sawch
Senior Vice President, General Counsel and Secretary
761 Main Avenue
Norwalk, Connecticut 06859-0001
(203) 762-0001
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Raymond W. Wagner
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
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. /x/
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 number for the same offering.
_______________
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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 delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. /_/
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum Amount of
Title of Shares Amount to Aggregate Price Aggregate Registration
To Be Registered Be Registered Per Unit<F(1)> Offering Price<F(1)> Fee
PE Corporation - Celera Genomics Group 1,292,350 $12.84 $16,593,774.00 $4,380.76
Common Stock, par value $.01 per share
Rights to Purchase Series B
Participating Junior Preferred Stock, 1,292,350 N/A N/A N/A
par value $.01 per share <F(2)>
</TABLE>
[FN]
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended.
(2) Prior to the occurrence of certain events, the rights to purchase
Series B Participating Junior Preferred Stock, par value $.01 per
share (the "Rights"), will not be evidenced separately from the
related Celera Genomics Stock. The value, if any, of the Rights is
reflected in the market price of the related Celera Genomics Stock.
Accordingly, no separate fee is paid.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 7, 1999
Prospectus
1,292,350 Shares
PE CORPORATION
PE Corporation - Celera Genomics Group Common Stock
(par value $.01 per share)
__________________
Consider carefully the risk factors beginning on page 3 of this prospectus.
__________________
This prospectus relates to offers and sales from time to time by The
Institute for Genomic Research ("TIGR") of shares of Celera Genomics stock
which may be issued upon exercise of an option held by TIGR. Celera Genomics
stock is a class of our common stock intended to reflect separately the
performance of our Celera Genomics business. The Celera Genomics stock is
listed on the New York Stock Exchange and the Pacific Exchange under the
symbol "CRA."
__________________
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
__________________
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The date of this prospectus is ________ __, 1999
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TABLE OF CONTENTS
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SELLING STOCKHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
AVAILABLE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may also
read and copy any document we file at the SEC's public reference room at 450
Fifth Street, N.W. Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information about the public reference room.
The SEC allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this
information.
We incorporate by reference our documents listed below and any future
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the fiscal year ended
June 30, 1999;
- Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999; and
- The descriptions of our common stock and rights to purchase
participating junior preferred stock set forth in our
Registration Statements filed pursuant to Section 12 of the
Exchange Act and any amendment or report filed for the
purpose of updating any of those descriptions.
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide
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you with different information. You should not assume that the information in
this prospectus is accurate as of any date other than the date on the front
of this document.
Any person receiving a copy of this prospectus may obtain, without
charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, except for the exhibits to such documents
(other than exhibits specifically incorporated by reference therein). Written
requests should be directed to PE Corporation, 761 Main Avenue, Norwalk,
Connecticut 06859 (telephone number (203) 762-1000), Attention: Secretary.
RISK FACTORS
The risk factors included through page 4 discuss risks specific to
the Celera Genomics group. Beginning on page 4 we discuss risks arising from
a capital structure with two separate classes of common stock.
Celera Genomics may not achieve profitability. The Celera Genomics
group has earned small amounts of revenues to date and expects that it will
continue to incur net operating losses at least through 2001. As a new
business, the Celera Genomics group faces significant challenges in
simultaneously launching and integrating its operations, pursuing key
scientific goals and attracting customers for its information products and
services. The Celera Genomics group has a small number of customers, the
revenues from which will offset only a small portion of its expenses. In
order to meet its business plan, the Celera Genomics group will require
additional customers in the next few years. In addition, even if the Celera
Genomics group is able to enter into contracts with additional customers,
those contracts may be subject to milestones that may not be achieved. As a
result, there is a high degree of uncertainty that the Celera Genomics group
will be able to achieve profitable operations.
Celera Genomics' business plan is unique and untested. No
organization has ever attempted to combine in one business organization all
of the Celera Genomics group's businesses. The creation of a genomics
database targeted at a wide variety of customers, from pharmaceutical
companies to university researchers, has a number of risks, including pricing
and volume issues, technology and access concerns, computer security, pursuit
of key scientific goals and protection of intellectual property. As a result,
the creation of a business that includes all of the Celera Genomics group's
businesses has unique risks.
Shotgun sequencing strategy has not yet been tested on the scale and
complexity of the human genome. Some genomic scientists have criticized the
Celera Genomics group's sequencing strategy, known as "whole genome shotgun
sequencing," as having limitations when applied on a large scale in
sequencing the human genome. Others have stated that the human genome cannot
be sequenced using whole genome shotgun sequencing. Although scientists at
TIGR have used the whole genome shotgun strategy to sequence the genomes of
other organisms, the strategy has not been used to sequence a genome with the
size and complexity of the human genome. Failure to sequence or assemble the
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human genome in a timely manner may have a material adverse effect on the
Celera Genomics group's ability to satisfy customer requirements and achieve
its business goals.
New DNA sequencers may not perform at expected levels and the
integration of over 300 sequencers may be difficult. The Celera Genomics
group's success is heavily dependent on the successful operation of the
PE Biosystems group's new DNA sequencer. The Celera Genomics group plans to
use more than 300 of the new DNA sequencers on a full-time basis, a scale of
operation never before attempted. Failure of the DNA sequencers to perform at
expected levels, or failure of the Celera Genomics group to integrate
successfully its DNA sequencers in its laboratory, would materially adversely
affect the Celera Genomics group's ability to sequence at the rate required
to complete the human genome on a timely basis, to achieve milestones in
contracts with customers and to perform research services effectively.
Realizing revenues from polymorphism data may be difficult. The
Celera Genomics group believes that the polymorphisms it discovers will add
considerable value to its integrated information system. Polymorphism data
reveals information about genetic variability between individuals. Its use in
the testing of new drugs and the diagnosis of disease, however, is largely
untested. Although there has been some early success in linking certain
polymorphisms to susceptibility to disease and outcomes of drug therapy,
pharmaceutical companies are not yet certain how polymorphism data can be
used, or if it can be used on a cost-effective basis, in clinical trials or
in drug development. Furthermore, public acceptance of the use of
polymorphism data is uncertain. Current and future patient privacy and health
care laws and regulations issued by the U.S. Food and Drug Administration may
also limit the use of this data.
The ability of the Celera Genomics group to protect its intellectual
property rights will affect its polymorphism program. Such protection is
uncertain due to the uncertainty of patent law relating to genomics in
general and the novelty of this particular aspect of genomics. In addition,
the Celera Genomics group will be dependent on new technology, including
technology provided by the PE Biosystems group, to make the use of
polymorphism information cost-effective so as to make it marketable to the
public. This technology is still in early stages of development and its
application to this area remains uncertain.
Potential initial customers are limited in number and belong to a
single industry. The Celera Genomics group believes that for the next few
years it will derive a significant portion of its revenues from fees paid by
pharmaceutical companies and larger biotechnology companies for its
information products and services. The Celera Genomics group has also had
preliminary discussions with certain universities and similar research
organizations about becoming customers, but expects this market to develop at
a slower rate. The number of potential subscribers for the Celera Genomics
group's products during this period may be limited due to their nature and
price. Pharmaceutical and biotechnology companies could decide not to
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subscribe to some or all of the Celera Genomics group's information products
or services, or could decide to conduct their own polymorphism discovery and
analysis or work with the Celera Genomics group's competitors. There have
been published reports of a proposed consortium of pharmaceutical companies
to create and make public polymorphism information.
Scientific and management staff have unique expertise which is key to
Celera Genomics' commercial viability and which would be difficult to
replace. The Celera Genomics group is highly dependent on the principal
members of its scientific and management staff, particularly Dr. J. Craig
Venter, its President. For the sequencing and assembly of the human genome,
the Celera Genomics group believes the following members of its staff are
essential: Dr. Venter; Dr. Mark Adams, Vice President for Genome Programs;
and Drs. Eugene Myers and Granger Sutton, who are responsible for assembling
the genome. Additional members of its medical, scientific and bioinformatics
staff are important to the development of information, tools and services
required for implementation of its business plan, including Dr. Sam Broder,
Executive Vice President and Chief Medical Officer. The loss of any of these
persons' expertise would be difficult to replace and could have a material
adverse effect on the Celera Genomics group's ability to achieve its goals,
particularly the completion of its information products.
Celera Genomics' competitive position will depend on patent and
copyright protection, which may not be available for genomics information and
technology. The Celera Genomics group's ability to compete and to achieve
profitability may be affected by its ability to protect its proprietary
technology and intellectual property. While Celera Genomics will be primarily
dependent on revenues from access fees to its discovery and information
system, obtaining patent protection may also be important to its business.
Patent law affecting Celera Genomics' business, particularly gene sequences
and polymorphisms, is uncertain.
Moreover, the Celera Genomics group may be dependent on protecting,
through copyright law or otherwise, its databases to prevent other
organizations from taking information from databases and copying and
reselling it. Copyright law currently provides uncertain protection to
organizations like the Celera Genomics group that seek to prevent others from
reselling their data. Changes in copyright and patent law could expand or
reduce the extent to which the Celera Genomics group and its customers are
able to protect their intellectual property.
Public disclosure of genomic sequence data could jeopardize
intellectual property protection and have an adverse effect on value of our
products and services. The Celera Genomics group, the federally funded Human
Genome Project and others engaged in similar research have committed to make
available to the public basic human sequence data. The release of sequence
data could undermine the ability of the Celera Genomics group and its
customers to obtain intellectual property protection. Customers may conclude
that uncertainties of such protection decrease the value of the Celera
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Genomics group's information products and services and, as a result, it may
not be able to charge fees sufficient to allow it to achieve profitability.
Others may succeed in commercializing genomic information before
Celera Genomics. A number of companies, institutions and government-financed
entities are engaged in various genomics initiatives. At least two other
companies, Genset, S.A. and Incyte Pharmaceuticals, Inc., have announced
their intention to market to the pharmaceutical industry products and
services similar to those being offered by the Celera Genomics group.
Additional competitors may attempt to compete with the Celera Genomics group
in the future, including companies that may seek to resell publicly available
genomic data. In addition, there have been published reports of a proposed
consortium of pharmaceutical companies to create and make public polymorphism
information.
Expected rapid growth in the number of our employees could absorb
valuable management resources and be disruptive to the development of our
business. The Celera Genomics group expects to continue to increase the
number of employees. This growth will require substantial effort to hire new
employees and train and integrate them in the Celera Genomics group's
business and to develop and implement management information systems,
financial controls and facility plans. In addition, the Celera Genomics group
will be required to create a sales and marketing organization and develop
customer support resources as sales of its information products increase. The
Celera Genomics group's inability to manage growth effectively would have a
material adverse effect on its future operating results.
Integration of GenScope and AgGen could be difficult and costly. The
success of the Celera Genomics group depends in part on its ability to
integrate the businesses of GenScope and AgGen, which were previously
operated by the PE Biosystems group. In particular, we believe that
coordinating the separate scientific research efforts will be a challenge to
the Celera Genomics group.
Failure of our Year 2000 compliance plan could jeopardize Celera
Genomics' information products and services. In fiscal 1997, we initiated a
world-wide program to assess the expected impact of the Year 2000 date
recognition problem on our existing computer systems; non-information
technology systems, including embedded and process-control systems; product
offerings; and significant suppliers. Portions of this program are not
expected to be completed until December 31, 1999. If we are not successful in
implementing our Year 2000 compliance plan, customers may encounter
difficulty in accessing and searching Celera Genomics' databases.
You will be stockholders of one company and, therefore, financial
effects on the PE Biosystems group could adversely affect the Celera Genomics
group. Holders of Celera Genomics stock and PE Biosystems stock are
stockholders of a single company. The Celera Genomics group and the PE
Biosystems group are not separate legal entities. As a result, stockholders
are subject to all of the risks of an investment in PE and all of our
businesses, assets and liabilities. The creation of the Celera Genomics stock
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and the PE Biosystems stock and the allocation of assets and liabilities and
stockholders' equity between the Celera Genomics group and the PE Biosystems
group did not result in a distribution or spin-off to stockholders of any of
our assets or liabilities and did not affect ownership of our assets or
responsibility for our liabilities or those of our subsidiaries. The assets
we attribute to one group could be subject to the liabilities of the other
group, whether such liabilities arise from lawsuits, contracts or
indebtedness that we attribute to the other group. If we are unable to
satisfy one group's liabilities out of the assets we attribute to it, we may
be required to satisfy those liabilities with assets we have attributed to
the other group.
Financial effects from one group that affect our consolidated results
of operations or financial condition could, if significant, affect the
results of operations or financial condition of the other group and the
market price of the common stock relating to the other group. In addition,
net losses of either group and dividends or distributions on, or repurchases
of, either class of common stock or repurchases of certain preferred stock
will reduce the funds we can pay as dividends on each class of common stock
under Delaware law. For these reasons, you should read our consolidated
financial information with the financial information we provide for each
group.
Holders of Celera Genomics stock will have limited rights related to
the Celera Genomics group. Holders of Celera Genomics stock and PE
Biosystems stock will have only the rights customarily held by common
stockholders. They will have only the following rights related to their
corresponding group:
- certain rights with regard to dividends and liquidation;
- requirements for a mandatory dividend, redemption or
conversion upon the disposition of all or substantially all
of the assets of their corresponding group; and
- a right to vote on matters as a separate voting class in the
limited circumstances provided under Delaware law, by stock
exchange rules or as determined by our board of directors.
We will not hold separate meetings for holders of Celera Genomics
stock and PE Biosystems stock.
Celera Genomics stock may not have any influence on the outcome of
stockholder voting. Celera Genomics stock may not have any influence on the
outcome of stockholder voting since PE Biosystems stock has a substantial
majority of the voting power of the common stock. Except in limited
circumstances requiring separate class voting, either class of common stock
that is entitled to more than the number of votes required to approve any
stockholder action could control the outcome of such vote -- even if the
matter involves a divergence or conflict of the interests of the holders of
the Celera Genomics stock and the PE Biosystems stock. These matters may
include mergers and other extraordinary transactions.
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Stockholders may not have any remedies for breach of fiduciary duties
if any action by directors and officers has a disadvantageous effect on
either class of stock. Stockholders may not have any remedies if any action
or decision of our directors or officers has a disadvantageous effect on the
Celera Genomics stock or the PE Biosystems stock compared to the other class
of common stock.
Recent cases in Delaware involving tracking stocks have established
that decisions by directors or officers involving differing treatment of
tracking stocks are judged under the business judgment rule unless self-
interest is shown. The business judgment rule provides that, absent abuse of
discretion, a good faith business decision made by a disinterested and
adequately informed board of directors, board of directors' committee or
officer with respect to any matter having different effects on holders of
Celera Genomics stock and holders of PE Biosystems stock would be a defense
to any challenge to such determination made by or on behalf of the holders of
either class of stock. Because of the business judgment rule, holders of a
class of stock who are disadvantaged by an action of our directors or
officers may not be able to successfully make claims alleging breach of
fiduciary duty.
Stock ownership could cause directors and officers to favor the PE
Biosystems group. As a policy, our board of directors will periodically
monitor the ownership of shares of Celera Genomics stock and shares of PE
Biosystems stock by our directors and senior officers, and our option grants
to them, so that their interests are generally aligned with the two classes
of common stock and with their duty to act in the best interests of PE and
our stockholders as a whole. However, because the actual value of their
interests in the Celera Genomics stock and PE Biosystems stock is anticipated
to vary significantly, it is possible that they could favor one group over
the other due to their stock and option holdings.
Our board of directors may pay less dividends on Celera Genomics
stock than if the Celera Genomics group was a separate company. Subject to
the limitations referred to below, our board of directors has the authority
to declare and pay dividends on the Celera Genomics stock and the PE
Biosystems stock in any amount and could, in its sole discretion, declare and
pay dividends exclusively on the Celera Genomics stock, exclusively on the PE
Biosystems stock, or on both, in equal or unequal amounts. Our board of
directors will not be required to consider the amount of dividends previously
declared on each class, the respective voting or liquidation rights of each
class or any other factor. The performance of one group may cause our board
of directors to pay more or less dividends on the common stock relating to
the other group than if that other group was a stand-alone corporation. In
addition, Delaware law and our certificate of incorporation impose
limitations on the amount of dividends which may be paid on each class of
common stock.
Proceeds of mergers or consolidations may be allocated unfavorably.
The terms of our common stock do not contain any provisions governing how
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consideration to be received by holders of common stock in connection with a
merger or consolidation involving PE is to be allocated among holders of each
class of common stock. Our board of directors will determine the percentage
of the consideration to be allocated to holders of each class of common stock
in any such transaction. Such percentage may be materially more or less than
that which might have been allocated to such holders had our board of
directors chosen a different method of allocation.
Holders of Celera Genomics stock may be adversely affected by a
conversion of either class of common stock. Our board of directors could,
in its sole discretion and without stockholder approval, determine to
convert shares of Celera Genomics stock into shares of PE Biosystems stock,
or vice versa, at any time including when either or both classes of common
stock may be considered to be overvalued or undervalued. Any such conversion
would dilute the interests in PE of the holders of the class of common stock
being issued in the conversion. It could also give holders of shares of the
class of common stock converted a greater or lesser premium than any premium
that was paid or might be paid by a third-party buyer of all or substantially
all of the assets of the group whose stock is converted.
Proceeds of newly issued Celera Genomics stock could be allocated to
the PE Biosystems group even if the Celera Genomics group requires financing.
If and to the extent the PE Biosystems group has an equity interest in the
Celera Genomics group at the time of any sale of Celera Genomics stock, our
board of directors could allocate some or all of the proceeds of that sale to
the PE Biosystems group. Any such decision could favor one group over the
other group. For example, the decision to allocate the proceeds to the PE
Biosystems group may adversely affect the Celera Genomics group's ability to
obtain funds to finance its growth strategies.
Allocation of corporate opportunities could favor the PE Biosystems
group. Our board of directors may be required to allocate corporate
opportunities between the groups. In some cases, our directors could
determine that a corporate opportunity, such as a business that we are
acquiring, should be shared by the groups. Any such decisions could favor one
group at the expense of the other.
Groups may compete with each other to the detriment of their
businesses. The existence of two separate classes of common stock will not
prevent the groups from competing with each other. Any competition between
the groups could be detrimental to the businesses of either or both of the
groups. Under a board of directors' policy, groups will generally not engage
in the principal businesses of the other. However, our Chief Executive
Officer or our board of directors will permit indirect competition between
the groups based on his or its good faith business judgment that such
competition is in the best interests of PE and all of our stockholders as a
whole. In addition, the groups may compete in a business that is not a
principal business of the other group.
Our board may change our management and allocation policies without
stockholder approval to the detriment of the Celera Genomics group. Our
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board of directors may modify or rescind our policies with respect to the
allocation of corporate overhead, taxes, debt, interest and other matters, or
may adopt additional policies, in its sole discretion without stockholder
approval. A decision to modify or rescind these policies, or adopt additional
policies could have different effects on holders of Celera Genomics stock and
holders of PE Biosystems stock or could result in a benefit or detriment to
one class of stockholders compared to the other class. Our board of directors
will make any such decision in accordance with its good faith business
judgment that the decision is in the best interests of PE and all of our
stockholders as a whole.
Either group may finance the other group on terms unfavorable to the
Celera Genomics group. We anticipate that we will transfer cash and other
property between groups to finance their business activities. The group
providing the financing will be subject to the risks relating to the group
receiving the financing. We will account for those transfers in one of the
following ways:
- as a reallocation of pooled debt or preferred stock;
- as a short-term or long-term loan between groups or as a
repayment of a previous borrowing;
- as an increase or decrease in the PE Biosystems group's
equity interest in the Celera Genomics group; or
- as a sale of assets between groups.
Our board of directors has not adopted specific criteria for
determining when we will transfer cash or other property as a loan or
repayment, an increase or decrease in equity interest or a sale of assets.
These determinations, including the terms of any transactions accounted for
as debt, could be unfavorable to either the group transferring or receiving
the cash or other property. Our board of directors expects to make these
determinations, either in specific instances or by setting generally
applicable policies, after considering the financing requirements and
objectives of the receiving group, the investment objectives of the
transferring group and the availability, cost and time associated with
alternative financing sources, prevailing interest rates and general economic
conditions.
We cannot assure you that any terms that we fix for debt will
approximate those that could have been obtained by the borrowing group if it
were a stand-alone corporation.
Celera Genomics group may not be fully reimbursed for PE Biosystems
group's use of its tax benefits and could be charged with higher future taxes
than if it were a stand-alone taxpayer. Our management and allocation
policies provide that tax benefits generated but not used by the Celera
Genomics group may be used by the PE Biosystems group. The aggregate amount
reimbursed to the Celera Genomics group for such use may not exceed
$75 million. All subsequent tax benefits in excess of this amount will not be
credited to the Celera Genomics group and the Celera Genomics group will not
be reimbursed for those tax benefits, unless the Celera Genomics group can
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use those tax benefits. Accordingly, any tax benefits that can not be used by
the Celera Genomics group will not be carried forward to reduce its future
taxes. This could result in the Celera Genomics group being charged a greater
portion of the total corporate tax liability in the future than would have
been the case if the Celera Genomics group had retained its tax benefits.
Holders of Celera Genomics stock may receive less consideration upon
a sale of assets than if the Celera Genomics group was a separate company.
If a disposition of all or substantially all of the assets of either group
occurs, we must, subject to certain exceptions:
- distribute to holders of the class of common stock relating
to such group an amount equal to the net proceeds of such
disposition, or
- convert at a 10% premium such common stock into shares of
the class of common stock relating to the other group.
If the group subject to the disposition were a separate, independent company
and its shares were acquired by another person, certain costs of that
disposition, including corporate level taxes, might not be payable in
connection with that acquisition. As a result, stockholders of the separate,
independent company might receive a greater amount than the net proceeds that
would be received by holders of the class of common stock relating to that
group if the assets of such group were sold. In addition, we can not assure
you that the net proceeds per share of the common stock relating to that
group will be equal to or more than the market value per share of such common
stock prior to or after announcement of a disposition.
Our capital structure and variable vote per share may discourage
acquisitions of a group or a class of common stock. A potential acquiror
could acquire control of PE by acquiring shares of common stock having
a majority of the voting power of all shares of common stock outstanding.
Such a majority could be obtained by acquiring a sufficient number of shares
of both classes of common stock or, if one class of common stock has a
majority of such voting power, only shares of that class. The PE
Biosystems stock currently has a substantial majority of the voting power. As
a result, it is possible for an acquiror to obtain control by purchasing only
shares of PE Biosystems stock.
Decisions by directors and officers that affect market values could
adversely affect voting and conversion rights. The relative voting power per
share of each class of common stock and the number of shares of one class of
common stock issuable upon the conversion of the other class of common stock
will vary depending upon the relative market values of the Celera Genomics
stock and the PE Biosystems stock. The market value of either or both classes
of common stock could be adversely affected by market reaction to decisions
by our board of directors or our management that investors perceive as
affecting differently one class of common stock compared to the other. These
decisions could involve changes to our management and allocation policies,
transfers of assets between groups, allocations of corporate opportunities
and financing resources between groups and changes in dividend policies.
10
<PAGE>
Investors may not value Celera Genomics stock based on Celera
Genomics group financial information and dividend policy. We cannot assure
you that investors will value the Celera Genomics stock and the PE Biosystems
stock based on the reported financial results and prospects of the separate
groups or the dividend policies established by our board of directors with
respect to such groups.
Provisions governing common stock could discourage a change of
control and the payment of a premium for stockholders' shares. Our
stockholder rights plan could prevent stockholders from profiting from an
increase in the market value of their shares as a result of a change in
control of PE by delaying or preventing such change in control. The existence
of two classes of common stock could also present complexities and could, in
certain circumstances, pose obstacles, financial and otherwise, to an
acquiring person. In addition, certain provisions of the Delaware law, our
certificate of incorporation and our by-laws may also deter hostile takeover
attempts.
Changes in federal tax law could result in taxation of issuances of
common stock. Changes in federal tax law, such as those proposed by the
Clinton Administration in early 1999, could impose a corporate level tax on
the issuance of stock similar to the Celera Genomics stock or the PE
Biosystems stock. If this proposal is enacted, we could be subject to tax on
an issuance of Celera Genomics stock or PE Biosystems stock after the date of
enactment.
Under our certificate of incorporation, we may convert the Celera
Genomics stock or the PE Biosystems stock into shares of the other class
without any premium if there are adverse U.S. federal income tax law
developments. The proposal of the Clinton Administration would be such an
adverse development if it is implemented or receives certain legislative
action.
THE COMPANY
Our businesses are the Celera Genomics group and the PE Biosystems
group. Our principal executive offices are located at 761 Main Avenue,
Norwalk, Connecticut 06859, and our telephone number is (203) 762-1000.
The Celera Genomics group is engaged in:
- generation, sale and support of genomic information and
related information management and analysis software;
- discovery, validation and licensing of proprietary gene
products, genetic markers and information concerning genetic
variability; and
- related consulting and contract research and development
services.
For the fiscal year ended June 30, 1999, the Celera Genomics group
had net revenues of $12.5 million and net losses of $44.9 million. Its total
assets at June 30, 1999 were $344.7 million.
11
<PAGE>
The PE Biosystems group is a diversified leader in the life sciences
industry.
USE OF PROCEEDS
We will not receive any proceeds from the sale of Celera Genomics
stock hereby.
SELLING SECURITYHOLDER
All of the shares of the Celera Genomic stock offered hereby are
being sold by TIGR. TIGR does not currently own any shares of Celera
Genomics stock. Following the sale of Celera Genomics stock from time to
time by TIGR of shares it receives upon the exercise of the option it holds,
TIGR will not own any shares of Celera Genomics stock.
In fiscal year 1999, we entered into several agreements with TIGR in
connection with the establishment of operations at the Celera Genomics.
These agreements include a non-exclusive license agreement for access to
TIGR's Human Gene Index database and the use of certain software developed by
TIGR. We also granted TIGR the option exercisable for 1,292,350 shares of
Celera Genomics stock in exchange for TIGR's agreement not to compete with
Celera Genomics in specified areas. The option was granted with an exercise
price of $12.84 per share and expires on June 30, 2009. We have agreed to
register these shares under the Securities Act of 1933, as amended. We have
also agreed to provide TIGR with access to certain of Celera Genomics'
databases for internal research purposes in exchange for TIGR's transfer of
certain intellectual property related to genomic sequencing. Dr. J. Craig
Venter is a Senior Vice President and President of Celera Genomics, and is
also the Chairman of the Board of Trustees of TIGR. His wife, Claire M.
Fraser, is the President of TIGR.
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time by
TIGR of 1,292,350 shares of Celera Genomics stock issuable upon exercise of
an option held by TIGR. Such sales will be made at prevailing market prices
at the time of sale or at negotiated prices.
LEGAL OPINIONS
Simpson Thacher & Bartlett, New York, New York, has rendered opinions
concerning the validity of the Celera Genomics stock.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the year ended June 30, 1999, have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on their authority as experts in auditing and
accounting.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses payable by the Company in connection with this
offering are as follows:
<TABLE>
<CAPTION>
<C> <S>
SEC registration fee . . . . . . . . . . . . . . . . . . . . . . . . $ 4,381
Stock exchange listing fees . . . . . . . . . . . . . . . . . . . . . 0
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . $ 7,500
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . $ 15,000
Printing and engraving expenses . . . . . . . . . . . . . . . . . . . 0
Transfer Agent's fees and expenses. . . . . . . . . . . . . . . . . . 0
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . . . . $ 619
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 27,500
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
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, as amended (the "Securities Act"). The statute 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 DGCL, 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 DGCL, 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 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 which might be incurred by them
in such capabilities and against which they cannot be indemnified by the
company.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
4.1 Rights Agreement, dated as of April 28, 1999, between PE
Corporation BankBoston N.A. (incorporated by reference from
the Company's Registration Statement on Forms S-4
(Registration No. 333-67797).
4.2 PE Corporation/Celera Genomics Group Stock Option Agreement,
dated June 30, 1999 by and between PE Corporation and The
Institute for Genomic Research.
5.1 Opinion of Simpson Thacher & Bartlett as to the legality of
the securities.
23.1 Consent of PricewaterhouseCoopers, LLP.
23.2 Consent of Simpson Thacher & Bartlett (contained in Exhibit
5.1).
Item 17. 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 the 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 and of the estimated maximum offering range may
be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20
percent 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 (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
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
<PAGE>
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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
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) (1) The undersigned registrant hereby undertakes as
follows: that prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part of
this registration statement, by any person or party who is deemed to
be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other items of the
applicable form.
(2) The registrant undertakes that every prospectus: (i)
that is filed pursuant to paragraph (1) immediately preceding, or
(ii) that purports to meet the requirements of Section 10(a)(3) of
the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the
registration statement and will not be used until such amendment is
effective, and that, for purposes 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.
(d) 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
<PAGE>
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 December 3, 1999.
PE CORPORATION
By: /s/ Tony L. White
____________________
Name: Tony L. White
Title: Chairman of the Board,
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of the registrant, do
hereby constitute and appoint Tony L. White 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.
Signature Title Date
--------- ----- ----
/s/ Tony L. White Chairman of the Board of Directors, December 3, 1999
------------------ President and Chief Executive
Tony L. White Officer (principal executive officer)
/s/ Dennis L. Winger Senior Vice President and Chief December 3, 1999
-------------------- Financial Officer (principal financial
Dennis L. Winger officer)
<PAGE>
/s/ Vikram Jog Corporate Controller (principal December 3, 1999
-------------- accounting officer)
Vikram Jog
/s/ Richard H. Ayers Director December 3, 1999
--------------------
Richard H. Ayers
/s/ Jean-Luc Belingard Director December 3, 1999
----------------------
Jean-Luc Belingard
------------------- Director December 3, 1999
Robert H. Hayes
---------------- Director December 3, 1999
Arnold J. Levine
/s/ Theodore E. Martin Director December 3, 1999
----------------------
Theodore E. Martin
/s/ Georges C. St. Laurent, Jr. Director December 3, 1999
-------------------------------
Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman Director December 3, 1999
----------------------
Carolyn W. Slayman
/s/ Orin R. Smith Director December 3, 1999
-----------------
Orin R. Smith
/s/ James R. Tobin Director December 3, 1999
------------------
James R. Tobin
<PAGE>
Exhibit Table
4.1 Rights Agreement, dated as of April 28, 1999, between PE
Corporation BankBoston N.A. (incorporated by reference from
the Company's Registration Statement on Forms S-4
(Registration No. 333-67797).
4.2 PE Corporation/Celera Genomics Group Stock Option Agreement,
dated June 30, 1999 by and between PE Corporation and The
Institute for Genomic Research.
5.1 Opinion of Simpson Thacher & Bartlett as to the legality of
the securities.
23.1 Consent of PricewaterhouseCoopers, LLP.
23.2 Consent of Simpson Thacher & Bartlett (contained in Exhibit
5.1).
<PAGE>
Exhibit 4.2
PE CORPORATION/CELERA GENOMICS GROUP
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of June 30, 1999 by and between PE
Corporation, a Delaware corporation (the "Company"), and The Institute for
Genomic Research, a Maryland non-stock corporation with tax-exempt status
under Section 501(c)(3) of the Internal Revenue Code ("TIGR").
WHEREAS, TIGR and The Perkin-Elmer Corporation ("Perkin-Elmer"), a
wholly-owned subsidiary of the Company, entered into a letter of intent dated
as of May 8, 1998 with respect to the formation of a new genomics
corporation; and
WHEREAS, as contemplated by such letter of intent, TIGR has agreed not
to compete with the Company and Perkin-Elmer in certain areas as described
below; and
WHEREAS, prior to the date hereof, the Company has consummated the
recapitalization contemplated by its Registration Statement on Form S-4.
1. Grant of Option. The Company hereby grants to TIGR an option (the
"Option") to purchase 1,292,350 shares (the "Shares") of PE Corporation -
Celera Genomics Group Common Stock, par value $.01 per share (the "Common
Stock").
2. Exercise Price of Option. The exercise price per share of the
Option is $12.84.
3. Expiration Date of Option. The Option will expire as of 12:00 p.m.
midnight (New York time) on June 30, 2009 (the "Expiration Date").
4. Exercise. The Option is 100% exercisable on the date of the grant.
5. Exercise of Option. The Option may be exercised by TIGR by giving
written notice in the form specified by the Company to the Corporate
Secretary at the principal office of the Company specifying the number of
Shares to be purchased. However, the Option may not be exercised as to fewer
than 5,000 Shares, or the remaining Shares covered by the Option if fewer
than 5,000, at any one time, and the Option may not be exercised with respect
to a fractional Share. The purchase price of the Shares as to which the
Option is exercised must be paid in full at the time of exercise in
immediately available funds.
6. Adjustments. In the event of changes in the outstanding Common
Stock by reason of stock dividends, stock splits, recapitalizations,
<PAGE>
combinations or exchanges of shares, corporate separations or divisions
(including, but not limited to, split-ups, split-offs, or spin-offs),
reorganizations (including, but not limited to, mergers or consolidations),
liquidations, or other similar events, the number of Shares subject to the
Option and the exercise price shall be proportionately adjusted in such
manner as the Company reasonably determines.
7. Right of First Refusal. (a) If TIGR receives a bona fide offer (an
"Offer") to purchase all or any portion of the Shares owned by TIGR, then
TIGR shall cause the Offer to be reduced to writing and shall provide a
written notice (the "Section 7(a) Notice") of such Offer to the Company. The
Section 7(a) Notice shall also contain an irrevocable offer to sell such
Shares to the Company at a price equal to the price contained in, and upon
substantially the same terms and conditions as the terms and conditions
contained in, the Offer and shall be accompanied by a true and complete copy
of the Offer. At any time within 20 calendar days after the date of the
receipt by the Company of the Section 7(a) Notice, the Company shall have the
right to exercise its option to purchase such Shares at such price and on
substantially such terms as set forth in such notice. The Company shall
exercise its right by delivery to TIGR of notice of exercise along with
payment for such Shares by certified check or wire transfer within such 20
day period. If the Company does not exercise such right during such 20 day
period, TIGR shall be free for a period of 90 calendar days from the end of
such 20 day period (or such earlier date as the Company notifies TIGR of its
intent not to exercise its option) to sell such Shares to the person making
the Offer on terms which are no more favorable in any material respect to
such person than the terms and conditions set forth in the Offer.
(b) Notwithstanding the provisions of Section 7(a) above, if TIGR
desires to sell all or any portion of the Shares owned by TIGR on the open
market through a broker or dealer, then TIGR shall provide a written notice
(the "Section 7(b) Notice") of such proposed sale to the Company. The
Section 7(b) Notice shall specify the number of such Shares proposed to be
sold (the "Offered Shares") and shall also contain an irrevocable offer to
sell the Offered Shares to the Company within a specified price range (the
"TIGR Price Range").
At any time within 20 calendar days after the date of the receipt by the
Company of the Section 7(b) Notice (the "Exercise Period") the Company shall:
(i) exercise its right to purchase all or a portion of the Offered
Shares at the highest price per share within the TIGR Price Range by
delivery to TIGR of notice of exercise along with payment for such
Shares by certified check or wire transfer against delivery of such
Shares; provided, however, that if the Company does not exercise its
right with respect to all of the Offered Shares, TIGR shall be free for
-2-
<PAGE>
a period of 45 calendar days from the date of receipt by TIGR of such
Company notice (the "Section 7(b)(i) Sale Period") to sell the remaining
Offered Shares on the open market through a broker or dealer at a price
not less than the lowest price per share included in the TIGR Price
Range;
(ii) notify TIGR of its willingness to purchase all or a portion
of the Offered Shares at a price per share within the TIGR Price Range
(the "Company Price"), in which case TIGR shall either (x) sell to the
Company all or a portion of such number of Offered Shares that the
Company is willing to purchase at the Company Price, or (y) for a period
of 45 calendar days from the date of receipt by TIGR of such Company
notice (the "Section 7(b)(ii) Sale Period"), sell all or a portion of
the Offered Shares on the open market through a broker or dealer at a
price per share greater than the Company Price; or
(iii) notify TIGR (it being understood that the failure by the
Company to give such notice during the Exercise Period shall be deemed
notice) that it does not intend to exercise its right to purchase the
Offered Shares, in which case TIGR shall be free for a period of 45
calendar days from the end of the Exercise Period (or such earlier date
as the Company notifies TIGR of its intent not to exercise its right)
(the "Section 7(b)(iii) Sale Period") to sell the Offered Shares on the
open market through a broker or dealer at a price not less than the
lowest price per share included in the TIGR Price Range.
In the event that, following receipt of notice from the Company under
the foregoing clauses, TIGR is unable to sell all or a portion of the Offered
Shares not purchased by the Company on the open market through a broker or
dealer (i) at the lowest price per share included in the TIGR Price Range (in
the case of Section 7(b)(i) or 7(b)(iii)) or (ii) at a price per share
greater than the Company Price (in the case of Section 7(b)(ii)) because of a
decline in the market price of a share of Common Stock, TIGR may provide
written notice (the "Revised Section 7(b) Notice") to the Company of its
intent to sell all or a portion of such Shares at a price per share (the
"Revised Section 7(b) Price") less than (i) the lowest price per share
included in the TIGR Price Range (in the case of Section 7(b)(i) or
7(b)(iii)) or (ii) the Company Price (in the case of Section 7(b)(ii)).
The Revised Section 7(b) Notice shall contain an irrevocable offer to
sell a specified number of Shares (which number may not be more than the
number of Offered Shares not purchased by the Company) to the Company at the
Revised Section 7(b) Price. At any time within 5 Trading Days (as defined in
the Company's certificate of incorporation) after the date of receipt by the
Company of the Revised Section 7(b) Notice the Company shall have the right
to exercise its option to purchase all or a portion of such Shares at the
-3-
<PAGE>
Revised Section 7(b) Price. The Company shall exercise its right by delivery
to TIGR of notice of exercise along with payment for such Shares by certified
check or wire transfer within such 5 day period. If the Company does not
exercise such right during such 5 day period, TIGR shall be free for the
balance of the applicable Sale Period to sell any Shares not purchased by the
Company on the open market through a broker or dealer at a price not less
than the Revised Section 7(b) Price.
(c) The Company may assign its right to purchase Shares under this
Section 7 to any affiliate (as such term is defined under Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended) of the Company, provided such affiliate agrees to be bound by the
terms of this Section 7.
(d) The provisions of this Section 7 shall not apply to the sale by
TIGR of up to and including 10,000 Shares in any 90-day period.
8. Non-Compete. For a period of one year from the date hereof, TIGR
will not enter into an agreement with any commercial entity (other than the
Company or Perkin-Elmer) to compete with the Company's or Perkin-Elmer's
efforts to develop, market, and sell the following: (a) database products
containing human genomic information; (b) services for human gene discovery;
(c) services for human gene expression analyses; or (d) services for human
polymorphism analysis. TIGR reserves the right consistent with its status as
a tax-exempt research institute pursuant to Section 501(c)(3) of the Internal
Revenue Code to conduct non-commercial genomics research pursuant to federal
government and private foundation funding, including but not limited to
research relating to humans and other animals, plants, parasites, and
microbes; furthermore, TIGR shall have the right to enter into agreements
with commercial entities except to the extent that they violate the
prohibitions set forth above. Notwithstanding anything to the contrary that
may be expressed or implied by the foregoing, the Company and Perkin-Elmer
hereby acknowledge and agree that TIGR's agreements with Corning Incorporated
(encompassing TIGR's license to Corning of its human cDNA clone set for the
production of commercial microarrays and of its human gene index database,
including the continued expansion of such clone set and database, as well as
allowing Corning's microarray customers to access portions of such database
corresponding to the microarray products purchased by them) shall not be
deemed to violate these non-compete provisions.
9. Transferability. The Option may not be transferred, assigned,
hypothecated, pledged, or otherwise given to another; provided, however, that
TIGR may transfer to Option to another non-profit organization tax exempt
under section 501(c)(3) of the Internal Revenue Code that is the successor to
all or substantially all of the assets of TIGR.
-4-
<PAGE>
10. Share Registration. The Company, at its sole expense, will
register the Shares under the Securities Act of 1933, as amended, promptly
after the date hereof.
11. Compliance with Law. No Shares will be issued upon the exercise of
the Option unless counsel for the Company is satisfied that such issuance
will be in compliance with all applicable laws.
12. Notices. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
delivered personally or sent by facsimile or by a nationally recognized
overnight courier, and shall be deemed to have been duly given when so
delivered personally or sent by facsimile, with receipt confirmed, or one
business day after the date of deposit with such nationally recognized
overnight courier. All such notices, requests, demands, and other
communications shall be addressed to the respective parties at the addresses
set forth below, or to such other address as either party may designate to
the other in accordance with this Section 12.
If to the Company or Perkin-Elmer, to:
PE Corporation
761 Main Avenue
Norwalk, Connecticut 06859
Attention: Secretary
Fax: (203) 761-5000
If to TIGR, to:
The Institute for Genomic Research
9712 Medical Center Drive
Rockville, Maryland 20850
Attention: President
Fax: (301) 838-0209
13. Amendment. This Agreement may not be amended without the written
consent of the Company and TIGR.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned as of the day and year first written above.
-5-
<PAGE>
PE CORPORATION
By: /s/ Dennis L. Winger
______________________________________
Name: Dennis L. Winger
Title: Senior Vice President and Chief
Financial Officer
THE INSTITUTE FOR GENOMIC
RESEARCH
By: /s/ Claire M. Fraser
______________________________________
Name: Claire M. Fraser
Title: President and Director
Accepted and agreed as to Section 8 only:
THE PERKIN-ELMER CORPORATION
By: /s/Dennis L. Winger
______________________________________
Name: Dennis L. Winger
Title: Senior Vice President and Chief
Financial Officer
-6-
<PAGE>
Exhibit 5.1
December 3, 1999
PE Corporation
761 Main Avenue
Norwalk, Connecticut 06859-0001
Ladies and Gentlemen:
We have acted as counsel to PE Corporation, a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-3
(the "Registration Statement") filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the issuance by the Company of 1,292,350 shares of its PE Corporation -
Celera Genomics Group Common stock, par value $.01 per share (the "Shares"),
and of 1,292,350 of its Rights to Purchase Series B Participating Junior
Preferred Stock, par value $.01 per share (the "Rights").
We have examined (i) the Registration Statement, (ii) a form of the
share certificate, a form of the Rights certificate and (iii) the PE
Corporation/Celera Genomics Group Stock Option Agreement (the "Stock Option
Agreement"), dated as of June 30, 1999, between the Company and The Institute
for Genomic Research. We also have examined the originals, or duplicates or
certified or conformed copies, of such records, agreements, instruments and
other documents and have made such other and further investigations as we
have deemed relevant and necessary in connection with the opinions expressed
herein. As to questions of fact material to this opinion, we have relied
upon certificates of public officials and of officers and representatives of
the Company.
<PAGE>
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as duplicates or certified or conformed
copies, and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that a. when the Board of
Directors of the Company (the "Board") has taken all necessary corporate
action to authorize and approve the issuance of the Shares and the Rights
b. upon payment of the exercise price and delivery in accordance with the
Stock Option Agreement, the Shares will be validly issued, fully paid and
nonassessable.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the Delaware General
Corporation Law.
We hereby consent to the filing of this opinion letter as Exhibit 5
to the Registration Statement and to the use of our name under the caption
"Legal Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
______________________________
SIMPSON THACHER & BARTLETT
-2-
<PAGE>
Exhibit 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our reports dated July 30, 1999 on the
combined financial statements of PE Biosystems Group, the combined financial
statements of Celera Genomics Group and the consolidated financial statements
of PE Corporation, which appear in the Annual Report to Stockholders of PE
Corporation, which is incorporated by reference in PE Corporation's Annual
Report on Form 10-K for the year ended June 30, 1999. We also consent to the
incorporation by reference of our reports dated July 30, 1999 relating to the
Financial Statement Schedules, which appear in such Annual Report on Form 10-
K. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
PricewaterhouseCoopers LLP
Stamford, CT
December 3, 1999
