<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 5, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHARMACIA CORPORATION
(Exact Name of Company as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 43-0420020
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
100 ROUTE 206 NORTH 07977
PEAPACK, NEW JERSEY (Zip Code)
(Address of principal executive offices)
</TABLE>
PHARMACIA & UPJOHN, INC. LONG-TERM INCENTIVE PLAN
PHARMACIA & UPJOHN, INC. EQUITY COMPENSATION PLAN
PHARMACIA & UPJOHN, INC. DIRECTORS EQUITY COMPENSATION AND DEFERRAL PLAN
(Full title of the plans)
DON W. SCHMITZ, ESQ.
VICE PRESIDENT, ASSOCIATE GENERAL COUNSEL AND CORPORATE SECRETARY
PHARMACIA CORPORATION
100 ROUTE 206 NORTH
PEAPACK, NEW JERSEY 07977
(Name and address of agent for service)
(908) 901-8000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------- -------------------- ---------------------- ---------------------- -------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) (2)
- --------------------------------------------- -------------------- ---------------------- ---------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value $2.00 per share, and
associated preferred stock purchase
rights....................................... 38,962,980 $46.375 $1,806,908,197.5 $477,024
============================================= ==================== ====================== ====================== ===================
</TABLE>
(1) This Registration Statement covers shares of Common Stock of Pharmacia
Corporation and associated preferred stock purchase rights which may be
offered or sold pursuant to the Pharmacia & Upjohn, Inc. Long Term
Incentive Plan, Pharmacia & Upjohn, Inc. Equity Compensation Plan and
Pharmacia & Upjohn, Inc. Directors Equity Compensation and Deferral Plan.
35,224,000 shares are being registered pursuant to the Pharmacia & Upjohn,
Inc. Long Term Incentive Plan, 3,706,850 shares are being registered
pursuant to the Pharmacia & Upjohn, Inc. Equity Compensation Plan and
32,130 shares are being registered pursuant to the Pharmacia & Upjohn, Inc.
Directors Equity Compensation and Deferral Plan. Pursuant to Rule 416 under
the Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement also covers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from stock
splits, stock dividends, recapitalizations or certain other capital
adjustments.
(2) Estimated pursuant to Paragraphs (c) and (h) of Rule 457 under the
Securities Act, solely for the purpose of calculating the registration fee,
based upon the average of the high and low sales prices of shares of
Monsanto Company Common Stock on March 29, 2000, as reported on the New
York Stock Exchange, Inc.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
All information required by Part I to be contained in the prospectus is
omitted from this Registration Statement in accordance with Rule 424 and Rule
428 under the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Any documents which Pharmacia Corporation (formerly Monsanto Company)
(the "Company") incorporated by reference in Item 3 of Part II of this Form S-8
Registration Statement (the "Registration Statement") are incorporated by
reference in the Section 10(a) prospectus and are available without charge, upon
written or oral request, by contacting the Company at 100 Route 206, Peapack,
New Jersey 07977 (908) 901-8000. All other information required by Part I to be
contained in the Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 424 and Rule 428 under the Securities Act and
the "Note" to Part I of this Form S-8.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENTS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the United States Securities and
Exchange Commission (the "Commission") by the Company (File No. 1-2516) pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
hereby incorporated by reference in this Registration Statement and made a part
hereof:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1999, as filed on March 20, 2000;
2. The Company's amended Annual Report on Form 10-K/A for the year ended
December 31, 1998, as filed on January 21, 2000;
3. The Company's amended Quarterly Reports on Form 10-Q/A for the quarters
ended March 31, 1999, June 30, 1999 and September 30,1999, as filed on
January 21, 2000;
4. The Company's Current Reports on Form 8-K, as filed on January 11, 2000,
January 25, 2000 and February 11, 2000;
5. The Company's amended Current Report on Form 8-K/A, as filed on January 25,
2000 and February 11, 2000;
6. The description of the Company's common stock, par value $2.00 per share,
and the description of associated Preferred Stock Purchase Rights contained
in registration statements filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents and reports filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents or reports. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified shall not be deemed to
constitute a part of the Registration Statement except as so modified and any
statement so superseded shall not be deemed to constitute a part of this
Registration Statement.
Independent Accountants
The financial statements of the Company incorporated in this
Registration Statement by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
II-1
<PAGE> 4
The financial statements of Pharmacia & Upjohn, Inc. incorporated in
this Registration Statement by reference to the Current Report on Form 8-K of
Monsanto Company filed on January 25, 2000, have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
The financial statements of DEKALB Genetics Corporation incorporated in
this Registration Statement by reference to the Current Report on Form 8-K/A of
Monsanto Company filed on February 8, 1999 and January 25, 2000, have been so
incorporated in reliance on the report of Arthur Andersen LLP, independent
public accountants, given on the authority of said firm as experts in auditing
and accounting.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. The Company's Certificate of
Incorporation and By-laws provide for indemnification of its directors,
officers, employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Company has entered into
Indemnification Agreements with its executive officers and directors. The
Company has also purchased and maintained insurance for its officers, directors,
employees or agents against liabilities which an officer, a director, an
employee or an agent may incur in his capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
EXHIBIT NUMBERS EXHIBIT
- --------------- -------
4.1 Restated Certificate of Incorporation of Pharmacia
Corporation.
4.2 Certificate of Amendment of Pharmacia Corporation Restated
Certificate of Incorporation.
4.3 Amended and Restated Bylaws of Pharmacia Corporation.
4.4 Rights Agreement, dated as of December 19, 1999 between the
Company and EquiServe Trust Company N.A., First Chicago Trust
Company as successor to The First National Bank of Boston
(incorporated herein by reference to Form 8-A filed on
December 30, 1999).
5.1 Opinion of Sullivan & Cromwell.
II-2
<PAGE> 5
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Sullivan & Cromwell (included as part of Exhibit
5.1).
ITEM 9. UNDERTAKINGS.
The undersigned 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;
(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.
(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 subparagraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by those subparagraphs is
contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
II-3
<PAGE> 6
The undersigned company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE> 7
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 Peapack, State of New Jersey on April 3, 2000.
PHARMACIA CORPORATION
By: /s/ Fred Hassan
Name: Fred Hassan
Title: Chief Executive Officer and
Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
/s/ Fred Hassan Chief Executive Office and April 3, 2000
- ----------------------------------- Director (Principal Executive
Fred Hassan Officer)
/s/ Christopher Coughlin Executive Vice President and April 3, 2000
- ----------------------------------- Chief Financial Officer
Christopher Coughlin (Principal Financial and Accounting
Officer)
/s/ M. Kathryn Eickhoff
- ----------------------------------- Director April 3, 2000
M. Kathryn Eickhoff
/s/ Michael Kantor
- ----------------------------------- Director April 3, 2000
Michael Kantor
/s/ Gwendolyn S. King
- ----------------------------------- Director April 3, 2000
Gwendolyn S. King
/s/ Philip Leder
- ----------------------------------- Director April 3, 2000
Philip Leder
</TABLE>
II-5
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Olof G. Lund
- ----------------------------------- Director April 3, 2000
Olof G. Lund
/s/ C. Steven McMillan
- ----------------------------------- Director April 3, 2000
C. Steven McMillan
/s/ Jacobus F.M. Peters
- ----------------------------------- Director April 3, 2000
Jacobus F.M. Peters
/s/ John S. Reed
- ----------------------------------- Director April 3, 2000
John S. Reed
/s/ Ulla B. Reinius
- ----------------------------------- Director April 3, 2000
Ulla B. Reinius
/s/ John E. Robson
- ----------------------------------- Director April 3, 2000
John E. Robson
/s/ Robert B. Shapiro
- ----------------------------------- Chairman of the Board of April 3, 2000
Robert B. Shapiro Directors
</TABLE>
II-6
<PAGE> 9
INDEX TO EXHIBITS
EXHIBIT NUMBERS EXHIBIT
- --------------- -------
4.1 Restated Certificate of Incorporation of Pharmacia
Corporation.
4.2 Certificate of Amendment of Pharmacia Corporation Restated
Certificate of Incorporation.
4.3 Amended and Restated Bylaws of Pharmacia Corporation.
4.4 Rights Agreement, dated as of December 19, 1999 between the
Company and EquiServe Trust Company N.A., First Chicago Trust
Company as successor to The First National Bank of Boston
(incorporated herein by reference to Form 8-A filed on
December 30, 1999).
5.1 Opinion of Sullivan & Cromwell.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Sullivan & Cromwell (included as part of Exhibit
5.1).
<PAGE> 1
Exhibit 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
MONSANTO COMPANY
Monsanto Company, a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Monsanto Company and the name under
which the Corporation was originally incorporated was Monsanto Chemical Company.
The date of filing its original Certificate of Incorporation with the Secretary
of State was April 19, 1933.
2. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this Corporation as heretofore amended or supplemented and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation, as amended or
supplemented heretofore, is hereby restated without further amendments or
changes to read as herein set forth in full:
ARTICLE I: NAME
The name of the Corporation shall be Monsanto Company.
ARTICLE II: PRINCIPAL OFFICE AND AGENT
The principal office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, and the name and address of its resident agent
is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware.
ARTICLE III: OBJECTS AND PURPOSES
The nature of the business of the Corporation or objects or purposes
proposed to be transacted, promoted or carried on by the Corporation are as
follows:
To manufacture, compound, refine, buy, sell and in every other way deal in
the following: chemicals and allied products, petroleum, electronics,
nucleonics, textiles and compounds and products of all types produced from any
of the foregoing, either alone or in conjunction with other materials; to
conduct scientific
<PAGE> 2
and technological research; and to perform other activities and functions
related to any of the foregoing.
To refine, market, distribute and transport crude oil, or petroleum and
all of its products; to locate, purchase, lease, sublease, develop, or otherwise
acquire, and to sell, mortgage or otherwise dispose of, lands containing or
believed to contain petroleum, oil, natural gas, and any other mineral, whether
similar or dissimilar, or any one or more of them, and to drill or prospect for
or produce the same; to purchase, lease, or otherwise acquire, and to sell,
mortgage or otherwise dispose of, developed or producing oil, gas and other
mineral properties or the products of such oil, gas and other minerals; to
purchase, produce, refine, sell and distribute petroleum, gas and other
minerals, and all of the products and by-products thereof; to buy, sell or
otherwise dispose of, and manufacture all kinds of illuminating, burning and
heating oils, and gasoline, naphtha, lubricants, greases, waxes and all other
products and by-products of petroleum; to act as broker or agent for others in
all of said acts.
To construct, build, purchase, acquire, own, equip, maintain, operate,
mortgage, or create liens upon, turn to account, lease, sell, convey or
otherwise dispose of, any and all real estate, houses, factories, refineries,
mills, smelters, buildings or construction of any nature, plants, manufactories
machinery works, tanks, tank cars, reservoirs, docks, piers, wharves, bulkheads,
heat, light and power installations, roads, trams, railroads, spur tracks,
loading racks, ditches, flumes, steamboats, vessels, pipelines, pumping stations
and any other means or methods of land or water transportation, bridges, canals,
storage works, water works and appurtenances, appliances and conveniences
thereto of every kind and character whatsoever, to the extent that the same are
or may be authorized by the statutes under which this Corporation is
incorporated and by the laws of any jurisdiction wherein any such works are
located.
To manufacture, refine, reduce, treat, separate, convert, store,
transport, buy, sell, distribute, trade and deal in, and otherwise turn to
account, all grades and kinds of asphaltum, petroleum and petroleum distillates,
natural and artificial gas, casinghead gasoline, sulphur, paints, oils, dyes,
varnishes, carbon and hydrocarbon products and all other substances of every
nature whatsoever, whether the same be by-products of the business specified
herein, or otherwise, and whether the same be in crude or in manufactured or
refined forms, which the Corporation may advantageously manufacture, trade, or
otherwise deal in, in connection with the conduct of the business as specified
herein.
To design, construct, build, purchase, equip, own, control, operate,
maintain, sell, lease and otherwise acquire or dispose of filling stations of
every kind, nature and description, and in connection therewith to purchase,
sell, vend, distribute and generally deal in and with, either at wholesale or
retail, or both, gasoline, kerosene, fuel oil, lubricating oils, greases and
automobile supplies and accessories of all kinds.
2
<PAGE> 3
To manufacture fuel, power producing, illuminating, and all other kinds of
gas from coal, petroleum, maltha, asphaltum and from any other substances of any
nature from which gas may be produced either under any existing process or any
process hereafter discovered, and to supply the same for fuel, power, lighting
and any and all other purposes of every nature whatsoever both to public and
private consumers.
To acquire, own and operate such machinery, apparatus and appliances as
may be necessary, proper or incidental to the mining, production and development
of lands for petroleum, oil, natural gas and other minerals, or for any of the
purposes for which this Corporation is organized.
To manufacture, purchase or otherwise acquire, own, mortgage, pledge,
sell, assign and transfer, or otherwise dispose of, to invest, trade, deal in
and deal with goods, wares and merchandise and real and personal property of
every class and description.
To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of, letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trade marks and trade names, relating to
or useful in connection with any business of this Corporation.
To guarantee, purchase, hold, sell, assign, transfer, mortgage, pledge or
otherwise dispose of shares of the capital stock of, or any bonds, securities or
evidences of indebtedness created by any other corporation or corporations
organized under the laws of this state or any other state, country, nation or
government, and while the owner thereof to exercise all the rights, powers and
privileges of ownership, including the right vote thereon.
To enter into, make and perform contracts of every kind and description
with any person, firm, association, corporation, municipality, county, state,
body politic or government or colony or dependency thereof.
To borrow or raise moneys for any of the purposes of the Corporation and,
from time to time, without limit as to amount, to draw, make, accept, endorse,
3
<PAGE> 4
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the Corporation, whether at the time owned,
or thereafter acquired, and to sell, pledge or otherwise dispose of such bonds
or other obligations of the Corporation for its corporate purposes.
To purchase, hold, sell, and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its capital
except as otherwise permitted by law, and provided further that shares of its
own capital stock belonging to it shall not be voted upon directly or
indirectly.
To make donations for the public welfare or for charitable, scientific or
educational purposes.
To have one or more offices, to carry on all or any of its operations and
business and without restriction or limit as to amount to purchase or otherwise
acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and
personal property of every class and description in any of the States,
Districts, Territories or Colonies of the United States, and in any and all
foreign countries, subject to the laws of such State, District, Territory,
Colony or Country.
In general, to carry on the foregoing or any other business in connection
with the foregoing, directly in the name of this Corporation or indirectly
through subsidiaries or affiliates, and to have and exercise all the powers
conferred by the laws of Delaware upon corporations formed under the act herein
referred to, and to do any or all of the things hereinbefore set forth to the
same extent as natural persons might or could do.
The objects and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this Certificate of
Incorporation, but the objects and purposes specified in each of the foregoing
clauses of this article shall be regarded as independent objects and purposes.
ARTICLE IV: CAPITAL STOCK
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 1,010,000,000 shares, to be divided into two
classes consisting of (a) ten million (10,000,000) shares of preferred stock
without par value (hereinafter designated "Preferred Stock"), and (b) one
billion (1,000,000,000)
4
<PAGE> 5
shares of common stock of a par value of $2 per share (hereinafter designated
"Common Stock").
SECTION I
PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more series
with such distinctive serial designations, at such price or prices and for such
other consideration as may be fixed by the Board of Directors. The Preferred
Stock of all series shall be in all respects entitled to the same preferences,
rights and privileges and subject to the same qualifications, limitations and
restrictions, except that different series of Preferred Stock may vary with
respect to those provisions as shall be determined and fixed by the Board of
Directors as hereinafter provided in this Section I. All the shares of any one
series shall be alike in every particular. In no event shall any share of any
series of Preferred Stock be entitled to more than one vote.
The Board of Directors is hereby expressly empowered, subject to the other
provisions of this Article IV, to determine and fix by resolution or resolutions
providing for the issuance of such series:
(a) The number of shares to constitute each such series and the
designation thereof;
(b) The voting powers, full, limited or contingent, if any, to which
holders of shares of any series of Preferred Stock shall be entitled;
(c) The dividend rate or rates, the conditions and dates upon which such
dividends shall be payable, the relation which such dividends shall bear to the
dividends payable on any other class or classes or series of stock, and whether
such dividends shall be cumulative or non-cumulative;
(d) Whether or not the shares of such series shall be redeemable and, if
redeemable, the redemption price and the terms and conditions thereof;
(e) The amount, if any, which the shares of any such series shall be
entitled to receive before any distribution or payment shall be made to holders
of the Common Stock, in the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary, or of any
proceedings resulting in any distribution of all, or substantially all, of its
assets to its stockholders; provided, however, that the sale of all, or
substantially all, of the property and assets of the Corporation to, or the
merger or consolidation of the Corporation into or with, any other company shall
not be deemed to be a
5
<PAGE> 6
liquidation, dissolution or winding up within the meaning of this subdivision
(e);
(f) Whether or not the shares of such series shall be subject to the
operation of retirement or sinking funds to be applied to the purchase or
redemption of such shares and, if such funds are established, the annual amount
thereof and the terms and provisions relative to the operation thereof;
(g) Whether or not the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class of stock of the Corporation and, if convertible or
exchangeable, the conversion price or prices or rate or rates of conversion or
exchange and such other terms and conditions of conversion or exchange as shall
be stated in said resolution or resolutions; and
(h) Such other designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
thereof as it may deem advisable and as shall be stated in said resolution or
resolutions.
SECTION II
PROVISIONS APPLICABLE TO ALL CLASSES OF STOCK
Each holder of Common Stock shall have one vote on all matters voted upon
by stockholders for each share of such stock held by him. Except as otherwise
expressly provided by law or by the Board of Directors pursuant to Section I of
this Article IV, the holders of Common Stock shall have the sole voting power.
No holder of any of the shares of the capital stock of the Corporation shall be
entitled as of right to purchase or subscribe for any unissued or reacquired
stock of any class, or any additional shares of any class to be issued by reason
of any increase of any class of the authorized capital stock of the Corporation,
or any securities convertible into stock of any class, but any such unissued or
reacquired stock or such additional authorized issue of any stock or issue of
convertible securities may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or associations, and
upon such terms as may be deemed advisable by the Board of Directors in the
exercise of its discretion.
If it seems desirable so to do, the Board of Directors of the Corporation
may from time to time issue scrip for fractional shares of stock. Such scrip
shall not confer upon the holder thereof any right to dividends or any voting or
other rights of a stockholder of the Corporation; but the Corporation shall from
time to time, within such time as the Board of Directors may determine, or
without limit of time if the Board of Directors so determines issue one or more
whole shares of stock upon the surrender of scrip for fractional shares
aggregating the number of whole shares issuable in respect of the scrip so
surrendered provided that the scrip so
6
<PAGE> 7
surrendered shall be properly endorsed for transfer if in registered form.
The scrip may also, at the option of the Board of Directors, provide
that at the option of the Board of Directors there may be sold by the
Corporation at public or private sale at any time on or after any determined
date, in such manner and on such terms as the Board of Directors may in its
absolute discretion determine, the number of shares of stock of the Corporation
in respect of which such scrip certificates are then outstanding, and thereafter
and until an expiration date fixed by the Board of Directors the bearers of such
scrip certificates, upon surrender thereof at the office or agency of the
Corporation, shall be entitled to receive their proper proportion of the net
proceeds of such sale but without interest, and on and after the date of such
sale shall be entitled to no other rights in respect of such scrip certificates.
The Board of Directors shall have the power at any time or from time to
time (without any action by the stockholders of the Corporation) to create and
issue, whether or not in connection with the issue and sale of any shares of
stock or other securities of the Corporation, rights or options entitling the
holders thereof to purchase from the Corporation any shares of its capital stock
of any class or classes or of any series of any class or classes, such rights or
options to be evidenced by or in such instrument or instruments as shall be
approved by the Board of Directors. The terms upon which, the time or times
(which may be limited or unlimited in duration), at or within which and the
price or prices at which any such shares may be purchased from the Corporation
upon the exercise of any such right or option, shall be such as shall be fixed
and stated in the resolution or resolutions adopted by the Board of Directors
providing for the creation and issue of such rights or options, and, in every
case, set forth or incorporated by reference in the instrument or instruments
evidencing such rights or options. In the absence of actual fraud in the
transaction, the judgment of the Board of Directors as to the consideration for
the issuance of such rights or options and the sufficiency thereof shall be
conclusive.
Shares of capital stock of the Corporation of any class or classes hereby
or hereafter authorized, and any rights or options entitling the holders thereof
to purchase from the Corporation any shares of its capital stock of any class or
classes or of any series of any class or classes, may be issued by the
Corporation from time to time for such consideration (but if the same be par
value stock then at not less than the par value thereof) as may be fixed from
time to time by the Board of Directors. The Board of Directors shall have
authority as provided by statute, to determine that only a part of the
consideration which shall be received by the Corporation for any of the shares
of its capital stock which it shall issue from time to time shall be capital.
The Corporation shall be entitled to treat the person in whose name any
7
<PAGE> 8
share, right or option is registered as the owner thereof for all purposes, and
shall not be bound to recognize any equitable or other claim to or interest in
such share, right or option on the part of any other person, whether or not the
Corporation shall have notice thereof, save as may be expressly provided by the
laws of the State of Delaware.
Pursuant to authority granted by this Article IV, the Board of
Directors adopted a resolution creating a series of Preferred Stock,
without par value, and stated the designation and number of shares, and
fixed the preferences, rights and privileges of the shares of such series,
and the qualifications, limitations or restrictions thereof, as set forth
in a Certificate of Designations of Series A Junior Participating
Preferred Stock of Monsanto Company filed with the Secretary of State of
the State of Delaware, which is attached hereto as Exhibit A and
incorporated herein by reference.
ARTICLE V: CAPITAL
The amount of capital with which the Corporation will commence business is
One Thousand Dollars ($1,000.00).
ARTICLE VI: DURATION
The Corporation is to have perpetual existence.
ARTICLE VII: LIABILITY OF STOCKHOLDERS
The private property of the stockholders of the Corporation shall not be
subject to the payment of corporate debts to any extent whatever.
ARTICLE VIII: DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the number of
directors of the Corporation which shall constitute the whole Board shall be not
less than 5 nor more than 20. The exact number of directors within the minimum
and maximum limitations specified in the preceding sentence shall be fixed from
time to time by resolution of a majority of the whole Board.
The directors, other than those who may be elected by the holders of any
series of Preferred Stock, shall be divided into three classes, as nearly equal
in number as possible. One class of directors shall have a term expiring at the
annual meeting of stockholders to be held in 1998, another class shall have a
term expiring at the annual meeting of stockholders to be held in 1999, and
another class shall have a term expiring at the annual meeting of stockholders
to be held in 2000.
8
<PAGE> 9
Members of each class shall hold office until their successors are elected and
qualified. At each annual meeting of the stockholders of the Corporation,
commencing with the 1998 annual meeting, (a) directors elected to succeed those
directors whose terms then expire shall be elected at such meeting to hold
office for a term expiring at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified, and (b) only if
authorized by a resolution of the Board of Directors, directors may be elected
to fill any vacancy on the Board of Directors, regardless of how such vacancy
shall have been created. Directors need not be stockholders.
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, and unless the Board
of Directors otherwise determines, vacancies resulting from death, resignation,
retirement, disqualification, removal from office or other cause, and newly
created directorships resulting from any increase in the authorized number of
directors, may be filled only by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the Board of Directors, or by
a sole remaining director, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, any director may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80 percent of the voting power of the then
outstanding Voting Stock, voting together as a single class.
Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, and in addition to approval by the Board of Directors, the
affirmative vote of the holders of at least 80 percent of the voting power of
the then outstanding Voting Stock, voting together as a single class, shall be
required to amend, repeal or adopt any provision inconsistent with this Article
VIII. For purposes of the Certificate of Incorporation, "Voting Stock" shall
mean the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors.
ARTICLE IX: LIABILITY OF DIRECTORS
A director of this Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted
9
<PAGE> 10
under the Delaware General Corporation Law as the same exists or may hereafter
be amended. Any repeal or modification of the foregoing provisions of this
Article IX shall not adversely affect any right or protection of a director of
the Corporation existing hereunder with respect to any act or omission occurring
prior to or at the time of such repeal or modification.
ARTICLE X: POWERS OF BOARD OF DIRECTORS
In furtherance, and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized:
To make, alter or repeal the By-Laws of the Corporation, subject to the
power of the stockholders of the Corporation to adopt, amend or repeal the
By-Laws; provided, however, that with respect to the powers of the
stockholders to adopt, amend and repeal the By-Laws, notwithstanding any
other provision of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in addition
to any affirmative vote of the holders of any series of Preferred Stock
required by law, this Certificate of Incorporation or any Preferred Stock
designation, the affirmative vote of the holders of at least 80 percent of
the voting power of all of the then outstanding Voting Stock, voting
together as a single class, shall be required for stockholders to adopt,
amend or repeal any provision of the By-Laws. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, and in
addition to approval by the Board of Directors, the affirmative vote of
the holders of at least 80 percent of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be
required to amend, repeal or adopt any provision inconsistent with the
preceding sentence.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose or to abolish any
such reserve in the manner in which it was created. By resolution or
resolutions, passed by a majority of the whole Board, to designate one or
more committees, each committee to consist of two or more of the directors
of the Corporation, which, to the extent provided in said resolution or
resolutions or in the By-Laws of the Corporation, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may have power to authorize
the seal of the Corporation to be affixed to all papers which may require
it. Such
10
<PAGE> 11
committee or committees shall have such name or names as may be stated in
the By-Laws of the Corporation, or as may be determined from time to time
by resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, the Board of Directors shall
have power and authority to sell, lease or exchange all of the property and
assets of the Corporation, including its good will and its corporate franchises,
upon such terms and conditions and for such consideration, which may be in whole
or in part shares of stock in, and/or other securities of, any other corporation
or corporations, as the Board of Directors shall deem expedient and for the best
interests of the Corporation.
The Corporation may in its By-Laws confer powers upon its Board of
Directors in addition to the foregoing, and in addition to the powers and
authorities expressly conferred upon it by statute.
A director and a member of any committee designated by the Board of
Directors shall, in the performance of his duties, be fully protected in relying
in good faith upon the books of account or reports made to the Corporation by
any of its officials, or by an independent certified public accountant, or by an
appraiser selected with reasonable care by the Board of Directors or by any
committee thereof, or in relying in good faith upon other records of the
Corporation.
No contract or other transaction of the Corporation shall be affected by
the fact that any of the directors of the Corporation are in any way interested
in or connected with any other party to such contract or transaction, or are
themselves parties to such contract or transaction, provided that at the meeting
of the Board of Directors or of the committee thereof authorizing or confirming
such contract or transaction there shall be present a quorum of directors not so
interested or connected, and such contract or transaction shall be approved by a
majority of such quorum, which majority shall consist of directors not so
interested or connected.
Any contract or act that shall be approved or ratified by the vote of the
holders of a majority of the capital stock of the Corporation having voting
power which is represented in person or by proxy at any annual meeting of
stockholders or at any special meeting called for that purpose, among others, of
considering the approval or ratification of the acts of officers and/or
directors (provided that a lawful quorum of stockholders be there represented in
person or by proxy) shall be as valid and as binding upon the Corporation and
upon all of its stockholders as though it had been approved or ratified by every
stockholder of the Corporation.
11
<PAGE> 12
ARTICLE XI: ACTION BY STOCKHOLDERS
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing in lieu of a meeting of such stockholders. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, and in addition
to approval by the Board of Directors, the affirmative vote of at least 80
percent of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with this Article XI.
ARTICLE XII: MISCELLANEOUS PROVISIONS
Both stockholders and directors shall have power, if the By-Laws so
provide, to hold their meetings, and to have one or more offices within or
without the State of Delaware, and to keep the books of this Corporation
(subject to the provisions of the statutes), outside of the State of Delaware at
such places as may be from time to time designated by the Board of Directors, or
as provided in the By-Laws.
The amount of the authorized stock of any class or classes of the
Corporation may be increased or decreased at any time by the affirmative vote of
the holders of a majority of the stock entitled to vote. The Corporation
reserves the right to create and issue one or more kinds or classes or series of
stock with such designations, preferences, redemption or dividend provisions and
voting powers or restrictions or qualifications thereof or other such
differences as shall be stated or expressed in any certificate, amendatory of
its Certificate of Incorporation, duly authorized, executed, recorded and filed
in the manner now or hereafter prescribed by the laws of the State of Delaware,
and further reserves the right to amend, alter, change or repeal any provision
contained in this Certificate, in the manner now or hereafter prescribed by the
laws of the State of Delaware, and all rights herein conferred upon the
stockholders except as otherwise herein expressly provided are granted subject
to this reservation.
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 to Title 8 of the Delaware Code, or on the application of trustees
in dissolution or of any receiver or receivers appointed for this Corporation
under the provisions of Section 279 of Title 8 of the Delaware Code, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a
12
<PAGE> 13
majority in number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
4. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said Monsanto Company has caused this Certificate to
be signed by R. William Ide, III, its Senior Vice President, General Counsel and
Corporate Secretary this 28th day of October, 1997.
MONSANTO COMPANY
By: /s/ R. William Ide, III
-----------------------
R. William Ide, III
Senior Vice President, General
Counsel and Secretary
13
<PAGE> 14
EXHIBIT A
THIS CERTIFICATE OF DESIGNATIONS, FILED WITH THE DELAWARE SECRETARY OF STATE
ON FEBRUARY 5, 1990, RELATES TO THE COMPANY'S PREFERRED STOCK PURCHASE
RIGHTS PLAN AND HAS THE EFFECT OF AMENDING THE CERTIFICATE OF INCORPORATION.
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
MONSANTO COMPANY
(Pursuant to Section 151 of the Delaware General Corporation Law)
Monsanto Company, a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Company"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Company as required by Section 151 of the General Corporation
Law at a meeting duly called and held on January 26, 1990:
RESOLVED, that pursuant to the authority expressly granted to and vested
in the Board of Directors of this Company (hereinafter called the "Board of
Directors" or the "Board") by the provisions of the Certificate of
Incorporation, as amended, the Board of Directors hereby creates a series of
Preferred Stock, without par value (the "Preferred Stock"), of the Company and
hereby states the designation and number of shares, and fixes the preferences,
rights and privileges of the shares of such series, and the qualifications,
limitations or restrictions thereof (in addition to the preferences, rights and
privileges and the qualifications, limitations and restrictions set forth in the
Certificate of Incorporation, as amended, which are applicable to Preferred
Stock of all series and to all classes of stock of the Company) as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 700,000. Such number of shares may be increased or decreased by
resolution of the
A-1
<PAGE> 15
Board of Directors; provided, that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into Series A
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock of par value of $2
per share (the "Common Stock"), of the Company, and of any other junior stock,
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends payable in
cash on the twelfth day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1 or
(b) subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Company shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Company shall declare a dividend or distribution on the Series A
Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
A-2
<PAGE> 16
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to one vote
on all matters submitted to a vote of the stockholders of the Company. In the
event the Company shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event; provided, however, that in no event shall any share of
Series A Preferred Stock have more than one vote per share.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Company having general voting
rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.
A-3
<PAGE> 17
(C) Except as set forth herein, or as otherwise provided by law, holders
of Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Company may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any
stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock;
or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company unless
the Company could, under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
A-4
<PAGE> 18
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Certificate
of Incorporation, or in any other Certificate of Designations creating a series
of Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under the
proviso in clause (1) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the
A-5
<PAGE> 19
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Company's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Company
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Company by its Vice President and attested by its Assistant Secretary
this 29th day of January, 1990.
/s/ J. H. Hinshaw
----------------------------------------
J. H. Hinshaw, Vice President
Attest:
/s/ J. R. Bley, Jr.
- -----------------------------
Assistant Secretary
A-6
<PAGE> 1
EXHIBIT 4.2
CERTIFICATE OF AMENDMENT
OF
MONSANTO COMPANY
RESTATED CERTIFICATE OF INCORPORATION
1. Article I thereof is amended and restated to read as follows:
ARTICLE I: NAME
The name of the Corporation shall be Pharmacia Corporation.
2. The first sentence of Article IV thereof is amended to read as
follows:
The total number of shares of all classes of stock which the Corporation shall
have authority to issue is 3,010,000,000 shares, to be divided into two classes
consisting of (a) ten million (10,000,000) shares of preferred stock, par value
$.01 per share (hereinafter designated "Preferred Stock"), and (b) three
billion (3,000,000,000) shares of common stock of a par value of $2 per share
(hereinafter designated "Common Stock").
3. The last sentence of the first paragraph of Article IV, Section I
thereof is deleted.
4. Article IV, Section I(b) is amended and restated to read as follows:
<PAGE> 2
(b) Whether the shares of such series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of
such voting rights;
IV. These amendments were duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
V. These amendments shall become effective as of 4:00 p.m. on March 31, 2000.
<PAGE> 1
EXHIBIT 4.3
PHARMACIA CORPORATION
AMENDED AND RESTATED BY-LAWS
AS ADOPTED MARCH 31, 2000
OFFICES
1. Registered
The name of the registered agent of the Company is The Corporation Trust
Company and the registered office of the Company shall be located in the City of
Wilmington, County of New Castle, State of Delaware.
2. Other
The Company shall have offices at such places both within or without the
State of Delaware as the Board of Directors may from time to time designate or
the business of the Company may require.
STOCKHOLDERS' MEETINGS
3. Annual Meeting
An annual meeting of stockholders shall be held on such day and at such time
as may be designated by the Board of Directors for the purpose of electing
Directors and for the transaction of such other business as properly may come
before such meeting. Any previously scheduled annual meeting of the stockholders
may be postponed by resolution of the Board of Directors upon public notice
given on or prior to the date previously scheduled for such annual meeting of
stockholders.
4. Business to be Conducted at Annual Meeting
(a) At an annual meeting of stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) pursuant to the
Company's notice of the meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Company who is a stockholder of
record at the time of giving of the notice provided for in this By-Law, who
shall be entitled to vote at such meeting and who shall have complied with the
notice procedures set forth in this By-Law.
(b) For business to be properly brought before an annual meeting by a
stockholder pursuant to Section (a)(iii) of this By-Law, notice in writing must
be delivered or mailed to the Secretary and received at the principal offices of
the Company, not less than 90 days nor more than 120 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the meeting is advanced by more than 30 days or
delayed by more than 60 days from such anniversary date, notice by the
stockholder must be received not earlier than the 120th
<PAGE> 2
day prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of the annual meeting is first
made. Such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business to be brought before the annual meeting and the reasons for
conducting such business at such meeting; (ii) the name and address, as they
appear on the Company's books, of the stockholder proposing such business, and
the name and address of the beneficial owner, if any, on whose behalf the
proposal is made; (iii) the class and number of shares of the Company's stock
which are beneficially owned by the stockholder, and by the beneficial owner, if
any, on whose behalf the proposal is made; and (iv) any material interest of the
stockholder, and of the beneficial owner, if any, on whose behalf the proposal
is made, in such business. For purposes of these By-Laws, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or in a document publicly filed by
the Company with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(b) of the Securities Exchange Act of 1934, as amended.
(c) Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this By-Law. The chairman of the meeting may, if the facts warrant,
determine that the business was not properly brought before the meeting in
accordance with the provisions of this By-Law; and if the chairman should so
determine, the chairman shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted. Notwithstanding
the foregoing provisions of this By-Law, a stockholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
(the "Exchange Act") and the rules and regulations thereunder with respect to
the matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act. The
provision of this Section 4 shall also govern what constitutes timely notice for
purposes of Rule 14a-4(c) of the Exchange Act.
5. Special Meetings
Special meetings of stockholders, unless otherwise provided by the law of
Delaware, may be called by the Chairman of the Board or the Chief Executive
Officer, or pursuant to resolution of the Board of Directors, and such person
calling the meeting shall have the sole right to determine the proper purpose or
purposes of such meeting. Business transacted at a special meeting of
stockholders shall be confined to the purpose or purposes of the meeting as
stated in the notice of such meeting. Any previously scheduled special meeting
of the stockholders may be postponed by resolution of the Board of Directors
upon notice by public announcement given on or prior to the date previously
scheduled for such special meeting of stockholders.
6. Place of Meetings
<PAGE> 3
Meetings of stockholders shall be held at a location determined by
resolution of the Board of Directors.
7. Notice of Meetings
Except as otherwise required by the law of Delaware, notice of each meeting
of the stockholders, whether annual or special, shall, at least ten days but not
more than sixty days before the date of the meeting, be given to each
stockholder of record entitled to vote at the meeting by mailing such notice in
the United States mail, postage prepaid, addressed to such stockholder at such
stockholder's address as the same appears on the records of the Company. Such
notice shall state the place, date and hour of the meeting, and in the case of a
special meeting, shall also state the purpose or purposes thereof.
8. Nominations of Directors
(a) Only persons who are nominated in accordance with the procedures set
forth in these By-Laws shall be eligible for election as Directors. Nominations
of persons for election to the Board of Directors may be made at a meeting of
stockholders (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Company who is a stockholder of record at the time of giving
of the notice provided for in this By-Law, who shall be entitled to vote for the
election of Directors at the meeting and who complies with the notice procedures
set forth in this By-Law.
(b) Nominations by stockholders shall be made pursuant to notice in writing,
delivered or mailed to the Secretary and received at the principal offices of
the Company (i) in the case of an annual meeting, not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting, provided, however, that in the event that the date of the meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder must be received not earlier than
the 90th day prior to such annual meeting and not later than the close of
business on the later of the 60th day prior to such annual meeting or the tenth
day following the day on which public announcement of the date of the meeting is
first made; or (ii) in the case of a special meeting at which directors are to
be elected, not earlier than the 90th day prior to such special meeting and not
later than the close of business on the later of the 60th day prior to such
special meeting or the tenth day following the day on which public announcement
of the date of the meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting is first made. In the case of a special
meeting of stockholders at which Directors are to be elected, stockholders may
nominate a person or persons (as the case may be) for election only to such
position(s) as are specified in the Company's notice of meeting as being up for
election at such meeting. Such stockholder's notice shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or reelection
as a Director, all information relating to such person that would be required to
be disclosed in solicitations of proxies for election of Directors, or is
<PAGE> 4
otherwise required, in each case pursuant to Regulation 14A under the Exchange
Act (including such person's written consent to being named as a nominee and to
serving as a Director if elected); (ii) as to the stockholder giving the notice,
the name and address, as they appear on the Company's books, of such stockholder
and the class and number of shares of the Company's stock which are beneficially
owned by such stockholder; and (iii) as to any beneficial owner on whose behalf
the nomination is made, the name and address of such person and the class and
number of shares of the Company's stock which are beneficially owned by such
person. At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a Director shall furnish to the Secretary
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. Notwithstanding anything in this
By-Law to the contrary, in the event that the number of directors to be elected
to the Board of Directors of the Company is increased and there is no public
statement naming all the nominees for Director or specifying the size of the
increased Board of Directors made by the Company at least 70 days prior to the
first anniversary of the preceding year's annual meeting, a stockholder's notice
required by this By-Law shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal offices of the Company not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Company.
(c) No person shall be eligible for election as a Director of the Company
unless nominated in accordance with the procedures set forth in these By-Laws.
The chairman of the meeting may, if the facts warrant, determine that a
nomination was not made in accordance with the procedures prescribed in this
By-Law; and if the chairman should so determine, the chairman shall so declare
to the meeting, and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this By-Law, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
<PAGE> 5
9. List of Stockholders
(a) The Secretary of the Company shall prepare, at least ten days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
(b) The stock ledger of the Company shall be the only evidence as to the
identity of the stockholders entitled (i) to vote in person or by proxy at any
meeting of stockholders, or (ii) to exercise the rights in accordance with
Delaware law to examine the stock ledger, the list required by this By-Law or
the books and records of the Company.
10. Quorum
The holders of a majority of the stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at all meetings of the stockholders,
except as otherwise provided by the law of Delaware, by the Certificate of
Incorporation or by these By-Laws. The stockholders present at any duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of sufficient stockholders to render the
remaining stockholders less than a quorum. Whether or not a quorum is present,
either the chairman of the meeting or a majority of the stockholders entitled to
vote thereat, present in person or by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting at which the requisite amount of
voting stock shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
11. Voting and Required Vote
Subject to the provisions of the Certificate of Incorporation, each
stockholder shall, at every meeting of stockholders, be entitled to one vote for
each share of capital stock held by such stockholder. Subject to the provisions
of the Certificate of Incorporation and Delaware law, Directors shall be chosen
by the vote of a plurality of the shares present in person or represented by
proxy at the meeting; and all other questions shall
<PAGE> 6
be determined by the affirmative vote of the majority of shares present in
person or represented by proxy at the meeting. In all matters, votes cast in
accordance with any method adopted by the Company shall be valid so long as such
method is permitted under Delaware law.
12. Proxies
Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for such stockholder by proxy, in any manner
permitted by law. No proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
13. Inspectors of Election; Polls
Before each meeting of stockholders, the Chairman of the Board or another
officer of the Company designated by resolution of the Board of Directors shall
appoint one or more inspectors of election for the meeting and may appoint one
or more inspectors to replace any inspector unable to act. If any of the
inspectors appointed shall fail to attend, or refuse or be unable to serve,
substitutes shall be appointed by the chairman of the meeting. Each inspector
shall have such duties as are provided by law, and shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such person's ability. The chairman of the meeting
shall fix and announce at the meeting the date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting.
14. Organization
The Chairman of the Board of Directors, or in the Chairman's absence, (i)
the Chief Executive Officer, if a member of the Board of Directors, (ii) one of
the Vice Chairmen of the Board who is a member of the Board of Directors, if
any, in such order as may be designated by the Chairman of the Board, in that
order, or (iii) in the absence of each of them, a chairman chosen by a majority
of the Directors present, shall act as chairman of the meetings of the
stockholders. The order of business and the procedure at any meeting of
stockholders shall be determined by the chairman of the meeting.
15. No Stockholder Action by Written Consent
Any action required or permitted to be taken by the stockholders of the
Company must be effected at a duly called annual or special meeting of
stockholders of the Company and may not be effected by any consent in writing in
lieu of a meeting of such stockholders.
BOARD OF DIRECTORS
16. General Powers, Number, Term of Office
<PAGE> 7
The business of the Company shall be managed under the direction of its
Board of Directors. Subject to the rights of the holders of any series of
preferred stock, par value $0.01 per share, of the Company ("Preferred Stock")
to elect additional directors under specified circumstances, the number of
directors of the Company which shall constitute the whole Board shall be not
less than five nor more than 20. The exact number of directors within the
minimum and maximum limitation specified in the preceding sentence shall be
fixed from time to time exclusively by resolution of a majority of the whole
Board. The Directors, other than those who may be elected by the holders of any
series of Preferred Stock, shall be divided into three classes, as nearly equal
in number as possible. One class of directors shall have a term expiring at the
annual meeting of stockholders to be held in 2000, another class shall have a
term expiring at the annual meeting of stockholders to be held in 2001, and
another class shall have a term expiring at the annual meeting of stockholders
to be held in 2002. Members of each class shall hold office until their
successors are elected and qualified. At each annual meeting of the stockholders
of the Company commencing with the 2000 annual meeting, (1) directors elected to
succeed those directors whose terms then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified, and (2) only if authorized by a
resolution of the Board of Directors, directors may be elected to fill any
vacancy on the Board of Directors, regardless of how such vacancy shall have
been created. Directors need not be stockholders of the Company or residents of
the State of Delaware.
17. Vacancies
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, and unless the Board
of Directors otherwise determines, vacancies resulting from death, resignation,
retirement, disqualification, removal from office or other cause, and newly
created directorships resulting from any increase in the authorized number of
directors, may be filled only by a director nominated by the nominating
committee and approved by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or by a sole
remaining director, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the Board of Directors shall shorten the
term of any incumbent director.
18. Regular Meetings
Following the annual meeting of stockholders, the first meeting of each
newly elected Board of Directors may be held, without notice, on the same day
and at the same place as such stockholders' meeting. The Board of Directors by
resolution may provide for the holding of regular meetings and may fix the times
and places at which such meetings shall be held. Notice of regular meetings
shall not be required provided that whenever
<PAGE> 8
the time or place of regular meetings shall be fixed or changed, notice of such
action shall be given promptly to each director, as provided in Section 19
below, who was not present at the meeting at which such action was taken.
19. Special Meetings
Special meetings of the Board of Directors shall be held whenever called by
the Chairman of the Board of Directors or the Chief Executive Officer, or in the
absence of each of them, by any Vice Chairman of the Board, in such order as may
be designated by the Chairman of the Board, or by the Secretary at the written
request of a majority of the Directors.
20. Notices
Notice of any special meeting of the Board of Directors shall be addressed
to each Director at such Director's residence or business address and shall be
sent to such Director by mail, electronic mail, telecopier, telegram or telex or
telephoned or delivered to such Director personally. If such notice is sent by
mail, it shall be sent not later than three days before the day on which the
meeting is to be held. If such notice is sent by electronic mail, telecopier,
telegram or telex, it shall be sent not later than 12 hours before the time at
which the meeting is to be held. If such notice is telephoned or delivered
personally, it shall be received not later than 12 hours before the time at
which the meeting is to be held. Such notice shall state the time, place and
purpose or purposes of the meeting.
21. Quorum
One-third of the total number of Directors constituting the whole Board, but
not less than two, shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, but if less than such required number of
Directors for a quorum is present at a meeting, a majority of the Directors
present may adjourn the meeting from time to time without further notice. Except
as otherwise specifically provided by the law of Delaware, the Certificate of
Incorporation or these By-Laws, the act of a majority of the Directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
22. Organization
At each meeting of the Board of Directors, the Chairman of the Board or, in
the Chairman's absence, (i) the Chief Executive Officer, if a member of the
Board of Directors, (ii) one of the Vice Chairmen of the Board who is a member
of the Board of Directors, if any, in such order as may be designated by the
Chairman of the Board, in that order, or (iii) in the absence of each of them, a
chairman chosen by a majority of the Directors present, shall act as chairman of
the meeting, and the Secretary or, in the Secretary's absence, an Assistant
Secretary or any employee of the Company appointed by the chairman of the
meeting, shall act as secretary of the meeting.
<PAGE> 9
23. Resignations
Any Director may resign at any time by giving written notice to the Chairman
of the Board, the Chief Executive Officer or the Secretary of the Company. Such
resignation shall take effect upon receipt thereof or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
24. Removal
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, any director may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80 percent of the voting power of the then
outstanding Voting Stock, voting together as a single class. For purposes of
these By-Laws, "Voting Stock" shall mean the outstanding shares of capital stock
of the Company entitled to vote generally in the election of directors.
25. Action Without a Meeting
Unless otherwise restricted by the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting if
all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
<PAGE> 10
26. Location of Books
Except as otherwise provided by resolution of the Board of Directors and
subject to the law of Delaware, the books of the Company may be kept at the
principal offices of the Company and at such other places as may be necessary or
convenient for the business of the Company.
27. Dividends
Subject to the provisions of the Certificate of Incorporation and the law of
Delaware, dividends upon the capital stock of the Company may be declared by the
Board of Directors at any regular or special meeting. Dividends may be paid in
cash, in property, or in shares of the Company's capital stock.
28. Compensation of Directors
Directors shall receive such compensation and benefits as may be determined
by resolution of the Board for their services as members of the Board and
committees. Directors shall also be reimbursed for their expenses of attending
Board and committee meetings. Nothing contained herein shall preclude any
Director from serving the Company in any other capacity and receiving
compensation therefor.
29. Additional Powers
In addition to the powers and authorities by these By-Laws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Company and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
COMMITTEES OF DIRECTORS
30. Designation, Power, Alternate Members
(a) The Board of Directors shall have an executive committee, a compensation
committee, a nominating and corporate governance committee, an audit and finance
committee, a public affairs and social responsibility committee, a science and
technology committee and may, by resolution or resolutions passed by a majority
of the whole Board, designate one or more additional committees, each committee
to consist of two or more of the Directors of the Company. Any such committee,
to the extent provided in said resolution or resolutions and subject to any
limitations provided by law, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Company. The
Board of Directors may designate one or more Directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. If at a meeting of any committee one or more of the members
thereof is absent or disqualified, and if either the Board of Directors has not
so designated any alternate member or members, or the
<PAGE> 11
number of absent or disqualified members exceeds the number of alternate members
who are present at such meeting, then the member or members of such committee
(including alternates) present at any meeting and not disqualified from voting,
whether or not they constitute a quorum, may unanimously appoint another
Director to act at the meeting in the place of such absent or disqualified
member. The term of office of the members of each committee shall be as fixed
from time to time by the Board; provided, however, that any committee member who
ceases to be a member of the Board shall automatically cease to be a committee
member.
(b) The executive committee shall have six members, one of whom shall be the
Chief Executive Officer and one of whom shall be the Chairman of the Board (if
not the same person).
(c) The nominating committee shall have four members. The power of the Board
of Directors to nominate persons for election as Directors is delegated to the
nominating committee. In the event of a vacancy of the nominating committee, the
remaining Directors on the nominating committee shall appoint a replacement
member or members, as applicable.
31. Quorum, Manner of Acting
At any meeting of a committee, the presence of one-third, but not less than
two, of its members then in office shall constitute a quorum for the transaction
of business; and the act of a majority of the members present at a meeting at
which a quorum is present shall be the act of the committee; provided that in
the event that any member or members of the committee is or are in any way
interested in or connected with any other party to a contract or transaction
being approved at such meeting, or are themselves parties to such contract or
transaction, the act of a majority of the members present who are not so
interested or connected, or are not such parties, shall be the act of the
committee. Each committee may provide for the holding of regular meetings, make
provision for the calling of special meetings and, except as otherwise provided
in these By-Laws or by resolution of the Board of Directors, make rules for the
conduct of its business.
32. Minutes
The committees shall keep minutes of their proceedings and report the same
to the Board of Directors when required; but failure to keep such minutes shall
not affect the validity of any acts of the committee or committees.
<PAGE> 12
ADVISORY DIRECTORS
33. Advisory Directors
The Board of Directors may, by resolution adopted by a majority of the whole
Board, appoint such number of senior executives of the Company as Advisory
Directors as the Board may from time to time determine. The Advisory Directors
shall have such advisory responsibilities as the Chairman of the Board may
designate and the term of office of such Advisory Directors shall be as fixed by
the Board.
OFFICERS
34. Designation
The officers of the Company shall be a Chairman of the Board, a Chief
Executive Officer, a President, one or more Vice Presidents, a Secretary, a
Treasurer and a Controller. The Board of Directors may also elect one or more
Vice Chairmen of the Board, one or more Vice Chairmen of the Company, one or
more Executive Vice Presidents, Senior Vice Presidents, Group Vice Presidents, a
Chief Financial Officer, Deputy and Assistant Secretaries, Deputy and Assistant
Treasurers, Deputy and Assistant Controllers and such other officers as it shall
deem necessary. Any number of offices may be held by the same person. The
Chairman of the Board of Directors shall be chosen from among the Directors.
35. Election and Term
At least annually, the Board of Directors of the Company shall elect the
officers of the Company and at any time thereafter the Board may elect
additional officers of the Company and each such officer shall hold office until
the officer's successor is elected and qualified or until the officer's earlier
death, resignation, termination of employment or removal.
36. Removal
Any officer shall be subject to removal or suspension at any time, for or
without cause, by the affirmative vote of a majority of the whole Board of
Directors.
37. Resignations
Any officer may resign at any time by giving written notice to the Chairman
of the Board, the President or to the Secretary. Such resignation shall take
effect upon receipt thereof or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
38. Vacancies
<PAGE> 13
A vacancy in any office because of death, resignation, removal or any other
cause may be filled for the unexpired portion of the term by the Board of
Directors.
39. Compensation
The compensation committee of the Board of Directors shall fix the salaries
of all employees of the Company who are subject to the reporting requirements of
Section 16(a) of the Securities Exchange Act of 1934 or any successor statute,
rule or provision, and other members of executive management designated by such
committee.
40. Chairman of the Board
The Chairman of the Board shall preside at all meetings of the stockholders
and of the Board of Directors, except as may be otherwise required under the law
of Delaware. The Chairman shall act in an advisory capacity with respect to
matters of policy and other matters of importance pertaining to the affairs of
the Company. The Chairman shall, in consultation with the Chief Executive
Officer, establish the agenda for the meetings of the Board of Directors. The
Chairman, alone or with the Chief Executive Officer, one or more of the Vice
Chairmen of the Board, and/or the Secretary shall sign and send out reports and
other messages which are to be sent to stockholders from time to time. The
Chairman shall also perform such other duties as may be assigned to the Chairman
by these By-Laws, the Board of Directors or, if applicable, the Chief Executive
Officer. If Fred Hassan is the Chief Executive Officer of the Company on
September 30, 2001, on such date he shall become Chairman of the Board and Chief
Executive Officer of the Company, unless otherwise determined at such time by
the affirmative vote of at least 80 percent of the whole Board of Directors.
41. Chief Executive Officer
The Chief Executive Officer, if a member of the Board of Directors, shall,
in the absence of the Chairman of the Board, preside at all meetings of the
stockholders and of the Board of Directors. The Chief Executive Officer shall
have the general and active management and supervision of the business of the
Company. The Chief Executive Officer shall see that all orders and resolutions
of the Board of Directors are carried into effect and shall be responsible to
the Board of Directors for the Company's strategic development, operational
results and for the running of the Company in accordance with policies approved
by the Board of Directors. The Chief Executive Officer shall also perform such
other duties as may be assigned to the Chief Executive Officer by these By-Laws
or the Board of Directors.
42. President
The President shall perform such duties as may be assigned to the President
by these By-Laws, the Board of Directors or the Chief Executive Officer.
<PAGE> 14
43. Vice Chairmen of the Board; Vice Chairmen
The Vice Chairmen of the Board, if a member of the Board of Directors,
shall, in the absence of the Chairman of the Board and the Chief Executive
Officer, and in such order as may be designated by the Chairman of the Board,
preside at all meetings of the stockholders and of the Board of Directors. The
Vice Chairmen of the Board and the Vice Chairmen shall perform such other duties
as may be assigned to them by these By-Laws, the Board of Directors or the Chief
Executive Officer.
44. Executive, Senior, Group and other Vice Presidents
Each Executive Vice President, Senior Vice President, Group Vice President
and each other Vice President shall perform the duties and functions and
exercise the powers assigned to such officer by the Board of Directors or the
Chief Executive Officer.
45. Chief Financial Officer
The Chief Financial Officer (if any) shall act in an executive financial
capacity. The Chief Financial Officer shall assist the Chairman of the Board and
the Chief Executive Officer in the general supervision of the Company's
financial policies and affairs.
46. Secretary
The Secretary shall attend all meetings of the Board of Directors and of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors and, when appropriate, shall cause the corporate seal to be affixed to
any instruments executed on behalf of the Company. The Secretary shall also
perform all duties incident to the office of Secretary and such other duties as
may be assigned to the Secretary by these By-Laws, the Board of Directors, the
Chairman of the Board or the Chief Executive Officer.
47. Assistant Secretaries
The Assistant Secretaries shall, during the absence of the Secretary,
perform the duties and functions and exercise the powers of the Secretary. Each
Assistant Secretary shall perform such other duties as may be assigned to such
Assistant Secretary by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the Secretary.
48. Treasurer
The Treasurer shall have the custody of the funds and securities of the
Company and shall deposit them in the name and to the credit of the Company in
such depositories as may be designated by the Board of Directors or by any
officer or
<PAGE> 15
officers authorized by the Board of Directors to designate such
depositories; disburse funds of the Company when properly authorized by vouchers
prepared and approved by the Controller; and invest funds of the Company when
authorized by the Board of Directors or a committee thereof. The Treasurer shall
render to the Board of Directors, the Chief Executive Officer or the Chief
Financial Officer, whenever requested, an account of all transactions as
Treasurer and shall also perform all duties incident to the office of Treasurer
and such other duties as may be assigned to the Treasurer by these By-Laws, the
Board of Directors, the Chief Executive Officer or the Chief Financial Officer.
49. Assistant Treasurers
The Assistant Treasurers shall, during the absence of the Treasurer, perform
the duties and functions and exercise the powers of the Treasurer. Each
Assistant Treasurer shall perform such other duties as may be assigned to the
Assistant Treasurer by the Board of Directors, the Chief Executive Officer, the
Chief Financial Officer or the Treasurer.
50. Controller
The Controller shall serve as the principal accounting officer of the
Company and shall keep full and accurate account of receipts and disbursements
in books of the Company and render to the Board of Directors, the Chief
Executive Officer or the Chief Financial Officer, whenever requested, an account
of all transactions as Controller and of the financial condition of the Company.
The Controller shall also perform all duties incident to the office of
Controller and such other duties as may be assigned to the Controller by these
By-Laws, the Board of Directors, the Chief Executive Officer or the Chief
Financial Officer.
<PAGE> 16
51. Assistant Controllers
The Assistant Controllers shall, during the absence of the Controller,
perform the duties and functions and exercise the powers of the Controller. Each
Assistant Controller shall perform such other duties as may be assigned to such
officer by the Board of Directors, the Chief Executive Officer, the Chief
Financial Officer or the Controller.
COMPANY CHECKS, DRAFTS AND PROXIES
52. Checks, Drafts
All checks, drafts or other orders for the payment of money by the Company
shall be signed by such person or persons as from time to time may be designated
by the Board of Directors or by any officer or
officers authorized by the Board of Directors to designate such signers; and the
Board of Directors or such officer or officers may determine that the signature
of any such authorized signer may be facsimile.
53. Proxies
Except as otherwise provided by resolution of the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
Chairman of the Board, any Vice President, the Treasurer and any Assistant
Treasurer, the Controller and any Assistant Controller, the Secretary and any
Assistant Secretary of the Company, shall each have full power and authority, in
behalf of the Company, to exercise any and all rights of the Company with
respect to any meeting of stockholders of any corporation in which the Company
holds stock, including the execution and delivery of proxies therefor, and to
consent in writing to action by such corporation without a meeting.
CAPITAL STOCK
54. Stock Certificates
Each holder of stock in the Company shall be entitled to have a certificate
signed by, or in the name of the Company by, the Chairman of the Board, the
Chief Executive Officer, the President, any Vice Chairman of the Board, any
Executive Vice President, any Senior Vice President, any Group Vice President or
any other Vice President, and by the Secretary or any Assistant Secretary of the
Company, certifying the number of shares owned by such holder in the Company.
Any of or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Company with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
<PAGE> 17
55. Record Ownership
The Company shall be entitled to treat the person in whose name any share,
right or option is registered as the owner thereof, for all purposes, and shall
not be bound to recognize any equitable or other claim to or interest in such
share, right or option on the part of any other person, whether or not the
Company shall have notice thereof, except as otherwise provided by the law of
Delaware.
56. Record Dates
In order that the Company may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
57. Transfer of Stock
Transfers of shares of stock of the Company shall be made only on the books
of the Company by the registered holder thereof, or by the registered holder's
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary or a transfer agent of the Company, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon.
58. Lost, Stolen or Destroyed Certificates
The Board of Directors may authorize a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Company alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of the fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or the owner's legal representative, to
give the Company a bond sufficient to indemnify it against any claim that may be
made against the Company on account of the alleged loss, theft or destruction of
such certificate or the issuance of such new certificate.
59. Terms of Preferred Stock
The provisions of these By-Laws, including those pertaining to voting
rights, election of Directors and calling of special meetings of stockholders,
are subject to the terms, preferences, rights and privileges of any then
outstanding class or series of Preferred Stock as set forth in the Certificate
of Incorporation and in any resolutions of the Board
<PAGE> 18
of Directors providing for the issuance of such class or series of Preferred
Stock; provided, however, that the provisions of any such Preferred Stock shall
not affect or limit the authority of the Board of Directors to fix, from time to
time, the number of Directors which shall constitute the whole Board as provided
in Section 16 above, subject to the right of the holders of any class or series
of Preferred Stock to elect additional Directors as and to the extent
specifically provided by the provisions of such Preferred Stock.
INDEMNIFICATION
60. Indemnification
(a) The Company shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any claim, action, suit, or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by reason of the fact
that the person, or a person for whom he or she is the legal representative, is
or was a Director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, non-profit entity, or other enterprise, including service with respect to
employee benefit plans, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person. The right to indemnification conferred in this By-Law shall be a
contract right. Except as provided in paragraph (c) of this By-Law with respect
to proceedings seeking to enforce rights to indemnification, the Company shall
indemnify a person in connection with a proceeding initiated by such person or a
claim made by such person against the Company only if such proceeding or claim
was authorized by the Board of Directors of the Company.
(b) The Company shall pay the expenses incurred in defending any proceeding
in advance of its final disposition, provided, however, that if and to the
extent required by law the payment of expenses incurred by any person covered
hereunder in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by or on behalf of the affected person to
repay all amounts advanced if it should ultimately be determined that such
person is not entitled to be indemnified under this By-Law or otherwise.
(c) If a claim for indemnification or payment of expenses under this By-Law
is not paid in full within thirty days, or such other period as might be
provided pursuant to contract, after a written claim therefor has been received
by the Company, the claimant may file suit to recover the unpaid amount of such
claim or may seek whatever other remedy might be provided pursuant to contract.
In any such action the Company shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law. If successful in whole or in part, claimant shall
be entitled to be paid the expense of prosecuting such claim.
<PAGE> 19
Neither the failure of the Company (including its Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such action that indemnification of the claimant is proper in the
circumstances because the claimant has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Company (including its Directors, independent legal counsel
or stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) Any determination regarding whether indemnification of any person is
proper in the circumstances because such person has met the applicable standard
of conduct set forth in the General Corporation Law of the State of Delaware
shall be made by independent legal counsel selected by such person with the
consent of the Company (which consent shall not unreasonably be withheld).
(e) The rights conferred on any person by this By-Law shall not be exclusive
of any other rights which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, these By-Laws,
agreement, vote of stockholders or disinterested Directors or otherwise.
(f) Any repeal or modification of the foregoing provisions of this By-Law
shall not adversely affect any right or protection hereunder of any person with
respect to any act or omission occurring prior to or at the time of such repeal
or modification.
MISCELLANEOUS
61. Corporate Seal
The seal of the Company shall be circular in form, containing the words
"Pharmacia Corporation" and the word "Delaware" on the circumference surrounding
the word "Seal." Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
<PAGE> 20
62. Fiscal Year
The fiscal year of the Company shall begin on the first day of January in
each year.
63. Auditors
The Board of Directors shall select certified public accountants to audit
the books of account and other appropriate corporate records of the Company
annually and at such other times as the Board shall determine by resolution.
64. Waiver of Notice
Whenever notice is required to be given pursuant to the law of Delaware, the
Certificate of Incorporation or these By-Laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting of stockholders or the Board of Directors or a committee thereof shall
constitute a waiver of notice of such meeting, except when the stockholder or
Director attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders or the
Board of Directors or committee thereof need be specified in any written waiver
of notice unless so required by the Certificate of Incorporation or by these
By-Laws.
AMENDMENT TO BY-LAWS
65. Amendments
Notwithstanding any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of any
series of Preferred Stock of the Company required by law, the Certificate of
Incorporation or any Preferred Stock designation, the affirmative vote of the
holders of at least 80 percent of the voting power of all of the
then-outstanding Voting Stock (as defined in the Certificate of Incorporation),
voting together as a single class, shall be required for the stockholders to
amend or repeal the By-Laws or to adopt new By-Laws. The By-Laws may also be
amended or repealed and new By-Laws may be adopted by the affirmative vote of a
majority of the whole Board of Directors at any regular or special meeting of
the Board of Directors.
<PAGE> 21
EMERGENCY BY-LAWS
These Emergency By-Laws, notwithstanding any different provision in the
Certificate of Incorporation or By-Laws, shall be operative during any emergency
resulting from an attack on the United States or on a locality in which the
Company conducts its business or customarily holds meetings of the Board of
Directors or its stockholders, or during any nuclear or atomic disaster, or
during the existence of any catastrophe, or other similar emergency condition,
as a result of which a quorum of the Board of Directors or a committee thereof
cannot be readily convened for action. These Emergency By-Laws shall cease to be
operative upon termination of such emergency.
During any such emergency:
(a) A meeting of the Board of Directors or a committee thereof may be
called by any officer or Director. Notice of the time and place of the
meeting shall be given by the person calling the meeting to only such of the
Directors as it may be feasible to reach at the time and by such means as
may be feasible at the time. Such notice shall be given at such time in
advance of the meeting as circumstances permit in the judgment of the person
calling the meeting.
(b) The officers or other persons designated on a list approved by the
Board of Directors before the emergency, all in such order or priority and
subject to such conditions and for such period of time (not longer than
reasonably necessary after the termination of the emergency) as may be
provided in the resolution approving the list, shall, to the extent required
to constitute a quorum at any meeting of the Board of Directors during the
emergency, be deemed Directors for such meeting. If at the time of the
emergency the Board of Directors has not approved such a list of persons,
then to the extent required to constitute a quorum at any meeting of the
Board of Directors during the emergency, the officers of the Company who are
present shall be deemed, in order of rank and within the same rank in order
of seniority, Directors for such meeting. Two Directors (including persons
deemed to be Directors) in attendance at the meeting shall constitute a
quorum.
(c) The Board of Directors, either before or during any such emergency,
may provide, and from time to time modify, lines of succession in the event
that during such an emergency any or all officers or agents of the Company
shall for any reason be rendered incapable of discharging their duties.
(d) The Board of Directors, either before or during any such emergency,
may, effective in the emergency, change the principal offices or designate
several alternative principal offices or regional offices, or authorize an
officer, or officers, so to do.
No officer, Director or employee acting in accordance with these Emergency
By-Laws shall be liable except for willful misconduct.
<PAGE> 22
These Emergency By-Laws shall be subject to repeal or change by further
action of the Board of Directors or by action of the stockholders, but no such
repeal or change shall modify the provisions of the next preceding paragraph
with regard to action taken prior to the time of such repeal or change. Any
amendment of these Emergency By-Laws may make any further or different provision
that may be practical and necessary for the circumstances of the emergency.
<PAGE> 1
[Letterhead of Sullivan & Cromwell]
Exhibit 5.1
April 5, 2000
Pharmacia Corporation,
100 Route 206 North,
Peapack, New Jersey 07977.
Ladies and Gentlemen:
In connection with the registration under the Securities Act
of 1933, as amended (the "Act"), of 38,962,980 shares of Common Stock, par
value $2.00 per share (the "Shares"), of Pharmacia Corporation, a Delaware
corporation (the "Company"), issuable upon the exercise of certain options
granted pursuant to the Pharmacia & Upjohn, Inc. Long Term Incentive Plan, the
Pharmacia & Upjohn, Inc. Equity Compensation Plan and the Pharmacia & Upjohn,
Inc. Directors Equity Compensation and Deferral Plan (collectively, the
"Plans"), and the related preferred stock purchase rights (the "Rights") to be
issued pursuant to the Rights Agreement, dated as of December 19, 1999 (the
"Rights Agreement"), between the Company and Equiserve Trust Company N.A., as
Rights Agent (the "Rights Agent"), we, as your counsel, have examined such
corporate records, certificates and other documents, and such questions of law,
as we have considered necessary or appropriate for the purposes of this
opinion. Upon the basis of such examination, we advise you that, in our opinion:
(1) When the related options have been duly exercised in
accordance with the Plans and the related option agreements and the
exercise price therefor has been duly paid, the Shares, when duly
issued upon the exercise of such options, will be validly issued, fully
paid and nonassessable.
(2) Assuming that the Board of Directors of the Company, after
fully informing itself with respect to the Rights Agreement and the
Rights after giving due consideration to all relevant matters,
determined that the execution and delivery of the Rights thereunder
would be in the best interest of the Company and its stockholders, and
assuming further that the Rights Agreement has been duly authorized,
executed and delivered by the Rights Agent, then when the Shares have
been validly issued upon the exercise of the related options, the
Rights attributable to the Shares will be validly issued.
In connection with our opinion set forth in paragraph (2)
above, we note that the question whether the Board of Directors of the Company
might be required to redeem the Rights at some future time will depend upon
facts and circumstances existing at that time and, accordingly, is beyond the
scope of such opinion.
The foregoing opinion is limited to the Federal laws of the
United States and the General Corporation Law of the State of Delaware, and we
are expressing no opinion as to the effect of the laws of any other
jurisdiction.
We have relied as to certain matters on information obtained
from public officials, officers of the Company and other sources believed by us
to be responsible.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement relating to the Shares and the Rights. In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ SULLIVAN & CROMWELL
-1-
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
PHARMACIA CORPORATION:
We consent to the incorporation by reference in this Registration Statement of
Pharmacia Corporation on Form S-8 of our report dated February 25, 2000
incorporated by reference in the Annual Report on Form 10-K of Monsanto
Company for the year ended December 31, 1999. We also consent to the reference
to us under the caption "Independent Accountants" in such Registration
Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
St. Louis, Missouri
March 31, 2000
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Pharmacia Corporation of our report dated February 10,
1999, except as to Note 1 relating to the pooling of interests with SUGEN, Inc.
which is as of August 31, 1999, relating to the financial statements of
Pharmacia & Upjohn, Inc., which appears in the Current Report on Form 8-K of
Monsanto Company filed on January 25, 2000. We also consent to the reference to
us under the heading "Independent Accountants" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Florham Park, New Jersey
April 5, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report (relating to the
financial statements of DEKALB Genetics Corporation) dated October 2, 1998,
included in Monsanto Company's Form 8-K/A filed on February 8, 1999 and January
25, 2000 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Chicago, Illinois
April 4, 2000
