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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE UPJOHN COMPANY
(Exact Name of Registrant as specified in its Charter)
DELAWARE 38-1123360
(State of Incorporation or Organization) (IRS Employer Identification No.)
7000 Portage Road
Kalamazoo, Michigan 49001
(Address of Principal Executive Office) (Zip Code)
Securities to be Registered Pursuant to Section 12(b) of the Act:
Name of each exchange on which
Title of each class to be so registered each class is to be registered
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Preferred Stock Purchase Rights New York Stock Exchange, Inc.
Securities to be Registered Pursuant to Section 12(g) of the Act:
None
(Title of Class)
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This Amendment No. 2 on Form 8-A/A is filed to supplement and amend
the information set forth in the Registration Statement on Form 8-A filed by The
Upjohn Company, a Delaware corporation ("Upjohn"), on June 26, 1986, and the
information set forth in the First Amendment thereto filed on Form 8 by Upjohn
on March 27, 1989. All capitalized terms not defined herein have the meanings
ascribed to such term in the Rights Agreement (as defined herein).
Item 1. Description of Securities
On August 19, 1995, the Board of Directors of Upjohn approved the
Second Amendment to the Rights Agreement (the "Second Amendment"), dated as of
June 17, 1986, as amended (the "Rights Agreement"), between Upjohn and The Bank
of New York, as Rights Agent (the "Rights Agent").
The Second Amendment and the Rights Agreement provide that if any
person or group becomes the beneficial owner of 20% or more of the Common Stock,
par value $1.00 per share (the "Common Stock"), of Upjohn, other than Pharmacia
Aktiebolag ("Pharmacia"), AB Volvo, Forvaltningsaktiebolaget Stattum, Bushwood,
Inc. ("Bushwood"), Bushwood Subsidiary, Inc. ("Bushwood Sub") or any of their
respective subsidiaries (an "Acquiring Person"), all holders of Upjohn's
preferred stock purchase rights (the "Rights") (other than Rights held by an
Acquiring Person, its affiliates and their transferees) would be entitled, upon
the exercise of a Right, to purchase from Upjohn, Common Stock having a market
value of twice the Exercise Price, subject to adjustment (the "Flip-in"). Each
Right owned by an Acquiring Person, its affiliates and their transferees would
become void. On August 21, 1995 Bushwood changed its name to Pharmacia & Upjohn,
Inc. and Bushwood Sub changed its name to Pharmacia & Upjohn, Subsidiary Inc.
The Rights Agreement continues to provide that at any time after any
person or group becomes an Acquiring Person, the Board of Directors of
Upjohn, at its option and without any action by the holders of Rights, may
effectuate the Flip-in by exchanging all or part of the outstanding Rights
(other than the Rights held by an Acquiring Person, its affiliates and their
transferees, which would be void) for Common Stock.
The Second Amendment provides that the transactions contemplated by
the Combination Agreement will not cause Pharmacia, Bushwood or Bushwood Sub to
have made a tender or exchange offer for 30% or more of the Common Stock.
The Second Amendment amends the definition of Stock Acquisition Date
to provide that a Stock Acquisition Date occurs on the first date on which
Upjohn publicly announces that an Acquiring Person has become such.
The Rights, as amended by this Second Amendment, will not prevent a
takeover of Upjohn. The Rights, however, may have certain anti-takeover
effects. The Rights may cause substantial dilution to a person or group that
acquires 20% or more of the Common Stock unless the Rights are first redeemed by
the Board of Directors of Upjohn. Accordingly, the Rights should encourage
a potential acquiror to seek to negotiate with the Board of Directors of
Upjohn, which would then be in a better position to protect the interests of
Upjohn and its stockholders. The Rights would not interfere with a
transaction that is in the best interests of Upjohn and its stockholders on
or prior to the Stock Acquisition Date because the Rights can be redeemed before
the consummation of such transaction.
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As of August 17, 1995 there were 190,591,523 shares of Common
Stock issued (of which 171,688,135 shares were outstanding and 18,903,388 shares
were held in treasury). As a result of a three-for-one stock split effected in
April 1987, a one-third (1/3) Right is attached to each share of Common Stock.
As long as the Rights are attached to the Common Stock, Upjohn will issue
one-third (1/3) Right with each new share of Common Stock so that all such
shares will have Rights attached.
The Second Amendment and the Rights Agreement also contain other
technical and conforming changes. A copy of the Second Amendment is attached
hereto as Exhibit 5 and a copy of the Rights Agreement was filed as an exhibit
to the Upjohn Registration Statement on Form 8-A dated June 26, 1986. The
foregoing description of the Second Amendment and the Rights Agreement is
qualified in its entirety by reference to the Second Amendment and the Rights
Agreement.
Item 2. Exhibits.
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<CAPTION>
Exhibit No. Description
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5 Second Amendment, dated as of August 20, 1995, to the Rights
Agreement, dated as of June 17, 1986 and amended as of March 22,
1989, between The Upjohn Company and The Bank of New York, as
Rights Agent.
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
THE UPJOHN COMPANY
By:/s/Kenneth M. Cyrus
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Kenneth M. Cyrus, Executive
Vice President, Secretary
and General Counsel
Date: August 21, 1995
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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5 Second Amendment, dated as of August 20, 1995, to the Rights
Agreement, dated as of June 17, 1986 and amended as of March 22,
1989, between The Pinehurst Company and The Bank of New York, as
Rights Agent.
</TABLE>
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Exhibit 5
SECOND AMENDMENT
TO
RIGHTS AGREEMENT
SECOND AMENDMENT, dated as of August 20, 1995 (this "Second
Amendment"), to the Rights Agreement, dated as of June 17, 1986, between The
Upjohn Company, a Delaware corporation (the "Company"), and The Bank of New
York, as Rights Agent (the "Rights Agent"), as amended by the First Amendment
thereto, dated as of March 22, 1989, between the Company and the Rights Agent
(as so amended, the "Rights Agreement").
Pursuant to Section 26 of the Rights Agreement, the Company and the
Rights Agent may, prior to the Distribution Date (as defined therein), amend any
provision of the Rights Agreement without the approval of any holders of
certificates representing the common stock of the Company. The Company now
desires to amend the Rights Agreement as set forth in this Second Amendment.
Pursuant to Section 26 of the Rights Agreement, the Company hereby directs that
the Rights Agreement should be amended as set forth in this Second Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Amendment of Section 1
The Rights Agreement is hereby amended to delete in its entirety the
definition of "Acquiring Person" contained in subsection (a) of Section 1
thereof and to
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substitute the following definition of "Acquiring Person" therefor:
"'Acquiring Person' shall mean any Person (as hereinafter defined)
who or which, together with all Affiliates (as hereinafter defined)
and Associates (as hereinafter defined) of such Person shall be the
Beneficial Owner (as hereinafter defined) of 20% or more of the
shares of Common Stock then outstanding, but shall not include (i)
the Company, any Subsidiary of the Company, any employee benefit plan
of the Company or any Subsidiary of the Company, any entity
organized, appointed or established by the Company or any Subsidiary
of the Company for or pursuant to the terms of any such plan or (ii)
Pharmacia Aktiebolag, AB Volvo, Forvaltningsaktiebolaget Stattum or
Bushwood, Bushwood Sub, or any of their respective Subsidiaries, but
only with respect to and to the extent of shares of Common Stock
acquired by such entities or their Affiliates in connection with the
transactions contemplated by the Combination Agreement (as
hereinafter defined)."
The Rights Agreement is hereby further amended to delete in its
entirety the definition of "Stock Acquisition Date" contained in subsection (m)
of Section 1 thereof and to substitute the following definition of "Stock
Acquisition Date" therefor:
"'Stock Acquisition Date' shall mean the first date on which the
Company shall have publicly announced (by any means) that an
Acquiring Person has become such."
2. Additions to Section 1
Section 1 of the Rights Agreement is hereby further amended to add
the following definitions:
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"(c) 'Pharmacia' shall mean Pharmacia Aktiebolag, a corporation
organized under the laws of the Kingdom of Sweden.
(e) 'Bushwood' shall mean Bushwood, Inc., a corporation organized
under the laws of the State of Delaware.
(f) 'Bushwood Sub' shall mean Bushwood Subsidiary, Inc., a
corporation organized under the laws of the State of Delaware.
(i) 'Combination Agreement' shall mean the Combination Agreement,
dated as of August 20, 1995, among Pharmacia, the Company, Bushwood
and Bushwood Sub.
(q) 'Stattum' shall mean Forvaltningsaktiebolaget Stattum, a
corporation organized under the laws of the Kingdom of Sweden.
(u) 'Volvo' shall mean AB Volvo, a corporation organized under the
laws of the Kingdom of Sweden."
3. Revision of subsections of Section 1
Subparagraphs (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m),
(n), and (o) of Section 1 of the Rights Agreement are hereby relettered to
become subparagraphs (d), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (s)
and (t) thereof, respectively.
4. Amendment of Section 3(a)(i)
Clause (i) of Section 3(a) of the Rights Agreement is hereby amended
by deleting the parenthetical phrase immediately after the phrase "tenth day"
and substituting in its place the following parenthetical phrase:
"(or such later date after the Stock Acquisition Date as may be fixed
by resolution of the Board of Directors of the Company)"
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5. Amendment of Section 3(a)(ii)
Clause (ii) of Section 3(a) of the Rights Agreement is hereby amended
by adding the following parenthetical phrase after the words "exchange offer":
"(except that the transactions contemplated by the Combination Agreement shall
not be considered a tender or exchange offer for purposes of this Rights
Agreement)." Clause (ii) of Section 3(a) of the Rights Agreement is further
amended by adding the words "resolution of" immediately after the words "may be
fixed by" in the parenthetical phrase immediately following the words "tenth
business day".
6. Amendment to Section 3(c)
The legend in Section 3(c) of the Rights Agreement is hereby amended
by adding the following clause immediately following the words "as amended as of
March 22, 1989":
"and as of August 20, 1995."
7. Amendment to Section 11(a)(ii)
Clause (ii) of Section 11(a) of the Rights Agreement is hereby
amended by deleting the parenthetical phrase immediately after the phrase "tenth
day" and substituting in its place the following parenthetical phrase:
"(or such later date as may be fixed by resolution of the Board of
Directors of the Company)"
8. Amendment to Section 23(a)(i)
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Clause (a)(i) of Section 23 of the Rights Agreement is hereby amended
to delete in its entirety the parenthetical phrase following the phrase "tenth
day" and to substitute therefor the following parenthetical phrase:
"(or such later date as may be fixed by resolution of the Board of
Directors of the Company)"
9. Amendment to Form of Rights Certificate
The form of Right Certificate set forth in the Rights Agreement as
Exhibit B is hereby amended by amending and restating the second full paragraph
on page 3 thereof as follows:
"Subject to the provisions of this Rights Agreement, the Rights
evidenced by this Certificate may be, but are not required to be,
redeemed by the Board of Directors at a redemption price of $0.05 per
Right at any time prior to the close of business on the tenth day (or
later date, as may be fixed by resolution of the Board of Directors
of the Company) following the Stock Acquisition Date, as such term is
defined in the Rights Agreement. At any time after any Person becomes
an Acquiring Person, as such terms are defined in the Rights
Agreement, the Rights evidenced by this Certificate may be, but are
not required to be, exchanged by the Company for shares of Common
Stock of the Company at an exchange ratio of three shares of Common
Stock per Right. As provided in the Rights Agreement, the redemption
price and the exchange ratio set forth above are the redemption price
and exchange ratio as of June 17, 1986, March 22, 1989, and August
20, 1995, respectively. As provided in the Rights Agreement, the
redemption price and exchange ratio are subject to
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modification and adjustment in certain events."
10. Governing Law. This Second Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such state,
provided, however, that the rights and obligations of The Bank of New York, as
Rights Agent hereunder, shall be governed by the laws of the State of New York.
11. Counterparts. This Second Amendment may be executed in any number
of counterparts, each of which shall for all purposes be deemed an original, and
all of which together shall constitute but one and the same instrument.
Except as expressly set forth herein, this Second Amendment shall not
by implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and
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affirmed in all respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above written.
Attest THE UPJOHN COMPANY
By: /s/ KENNETH M. CYRUS By: /s/ JOHN L. ZABRISKIE
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Name: Kenneth M. Cyrus Name: John L. Zabriskie
Title: Executive Vice President, Title: Chairman of the Board
Secretary and General and Chief Executive
Counsel Officer
Attest THE BANK OF NEW YORK
By: /s/ JOSEPHINE L. BISHOP By: /s/ JOHN I. SIVERTSEN
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Name: Josephine L. Bishop Name: John I. Sivertsen
Title: Assistant Vice President Title: Vice President
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