AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 10, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHARMACIA & UPJOHN, INC.
(Exact Name of Company as Specified in its Charter)
DELAWARE 98-0155411
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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95 CORPORATE DRIVE 08807-0995
BRIDGEWATER, NEW JERSEY (Zip Code)
(Address of principal executive offices)
PHARMACIA & UPJOHN, INC. LONG TERM INCENTIVE PLAN
PHARMACIA & UPJOHN, INC. EQUITY COMPENSATION PLAN
(Full title of the plans)
RICHARD T. COLLIER, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PHARMACIA & UPJOHN, INC.
95 CORPORATE DRIVE
BRIDGEWATER, NEW JERSEY 08807-0995
(Name and address of agent for service)
(908) 901-8000
(Telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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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)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value, together
with attached rights to purchase Partici-
pating Preferred Stock...................... 2,000,000 shares $50.25 $100,500,000 $27,939.00
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<FN>
(1) This Registration Statement covers shares of Common Stock of Pharmacia &
Upjohn, Inc. and the attached rights to Purchase Participating Preferred
Stock which may be offered or sold pursuant to the Pharmacia & Upjohn, Inc.
Long Term Incentive Plan and Pharmacia & Upjohn, Inc. Equity Compensation
Plan. 900,000 shares are being registered pursuant to the Pharmacia &
Upjohn, Inc. Long Term Incentive Plan and 1,100,000 shares are being
registered pursuant to the Pharmacia & Upjohn, Inc. Equity Compensation
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
Pharmacia & Upjohn, Inc. Common Stock on September 9, 1999, as reported on
the New York Stock Exchange, Inc.
</FN>
</TABLE>
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the prospectus is
omitted from this Registration Statement in accordance with Rule 428 under the
Securities Act of 1933.
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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 Pharmacia & Upjohn, Inc. (the
"Company") (File No. 1-11557) pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are hereby incorporated by reference in this
Form S-8 Registration Statement (the "Registration Statement") and made a part
hereof:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1998;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999 and June 30, 1999;
3. The Company's Current Reports on Form 8-K, as filed on July 1, 1999, July
30, 1999, August 17, 1999 and September 8, 1999;
4. The Company's Long Term Incentive Plan, attached as exhibit 10(g) to the
Company's Annual Report on Form 10-K for the year ended December 31, 1995;
5. The Company's Equity Compensation Plan, attached as exhibit 99.1 to the
Company's Registration Statement on Form S-8 filed on March 22, 1999;
6. The description of the Common Stock contained in the Company's Registration
Statement on Form 8-A dated October 24, 1995; and
7. The description of the Stockholder Protection Rights Agreement dated as of
March 4, 1997, between the Company and First Chicago Trust Company of New
York, and the related right to purchase Participating Preferred Stock,
contained in the Company's Registration Statement on Form 8-A dated March
5, 1997.
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 Pharmacia & Upjohn incorporated in this
Registration Statement by reference to Pharmacia & Upjohn's Annual Report on
Form 10-K for the year ended December 31, 1998, 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. With
respect to the unaudited financial information of Pharmacia & Upjohn, Inc. for
the three-month and six-month periods ended March 31, 1999 and June 30, 1999
incorporated by reference in this Registration Statement,
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PricewaterhouseCoopers LLP reported that they have applied limited procedures in
accordance with professional standards for a review of such information.
However, their separate reports dated April 27, 1999 and July 23, 1999
incorporated by reference herein states that they did not audit and they do not
express an opinion on the unaudited financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied.
PricewaterhouseCoopers LLP is not subject to the liability provisions of Section
11 of the Securities Act of 1933 for their reports on the unaudited financial
information because those reports are not a "report" or a "part" of the
registration statement prepared or certified by PricewaterhouseCoopers LLP
within the meaning of Sections 7 and 11 of the Act.
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 & Upjohn, Inc.
(incorporated by reference to Exhibit 4.1 of Pharmacia & Upjohn,
Inc.'s Registration Statement on Form S-8 filed May 3, 1996).
4.2 Amended Bylaws of Pharmacia & Upjohn, Inc. (incorporated by
reference to Exhibit (3)(ii) of Pharmacia & Upjohn's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998).
5.1 Opinion of Sullivan & Cromwell.
15 Awareness Letter from PricewaterhouseCoopers LLP concerning
unaudited interim financial information.
23.1 Consent of PricewaterhouseCoopers LLP.
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23.2 Consent of Sullivan & Cromwell (included as part of Exhibit 5.1).
24 Power of Attorney (included as part of the signature page).
99.1 Pharmacia & Upjohn, Inc. Long Term Incentive Plan (incorporated
by reference to Exhibit 10(g) to Pharmacia & Upjohn, Inc.'s Form
10-K for the year ended December 31, 1997).
99.2 Pharmacia & Upjohn, Inc. Equity Compensation Plan (incorporated
by reference to Exhibit 99.1 to the Pharmacia & Upjohn, Inc.'s
Registration Statement on Form S-8 filed on March 22, 1999).
99.3 Amendment of Pharmacia & Upjohn, Inc. Long Term Incentive Plan,
dated August 27, 1999.
99.4 Amendment of Pharmacia & Upjohn, Inc. Equity Compensation Plan,
dated August 27, 1999.
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.
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
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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.
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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 Bridgewater, State of New Jersey on September 10, 1999.
PHARMACIA & UPJOHN, INC.
By: /s/ Fred Hassan
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Name: Fred Hassan
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by or on behalf of the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
The undersigned directors and officers of Pharmacia & Upjohn, Inc. do
hereby constitute and appoint Fred Hassan, Christopher Coughlin and Richard
Collier, and each of them, our true and lawful attorneys-in-fact and agents to
do any and all acts and things in our name and behalf in our capacities as
directors and officers, and to execute any and all instruments for us and in our
names in the capacities indicated below which such person or persons may deem
necessary or advisable to enable Pharmacia & Upjohn to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for us, or any of us, in the capacities indicated below and all amendments
(including post-effective amendments) hereto and we do hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
NAME TITLE DATE
- ---- ----- ----
/s/ Fred Hassan President and Chief Executive September 10, 1999
- ------------------------- Officer
Fred Hassan
/s/ Christopher Coughlin Executive Vice President and September 10, 1999
- ------------------------- Chief Financial Officer
Christopher Coughlin (Principal Financial Officer)
/s/ Robert G. Thompson Senior Vice President (Principal September 10, 1999
- ------------------------- Accounting Officer)
Robert G. Thompson
/s/ Richard H. Brown Director September 10, 1999
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Richard H. Brown
/s/ Frank C. Carlucci Director September 10, 1999
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Frank C. Carlucci
/s/ Gustaf A.S. Douglas Director September 10, 1999
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Gustaf A.S. Douglas
II-5
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/s/ M. Kathryn Eickhoff Director September 10, 1999
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M. Kathryn Eickhoff
/s/ J. Soren Gyll Director September 10, 1999
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J. Soren Gyll
/s/ Berthold Lindqvist Director September 10, 1999
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Berthold Lindqvist
/s/ Olof G. Lund Director September 10, 1999
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Olof G. Lund
/s/ C. Steven McMillan Director September 10, 1999
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C. Steven McMillan
/s/ William U. Parfet Director September 10, 1999
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William U. Parfet
/s/ Ulla B. Reinius Director September 10, 1999
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Ulla B. Reinius
/s/ Bengt Samuelsson Director September 10, 1999
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Bengt Samuelsson
II-6
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBERS EXHIBIT
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4.1 Restated Certificate of Incorporation of Pharmacia & Upjohn, Inc.
(incorporated by reference to Exhibit 4.1 of Pharmacia & Upjohn,
Inc.'s Registration Statement on Form S-8 filed May 3, 1996).
4.2 Amended Bylaws of Pharmacia & Upjohn, Inc. (incorporated by
reference to Exhibit (3)(ii) of Pharmacia & Upjohn's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998).
5.1 Opinion of Sullivan & Cromwell.
15 Awareness Letter from PricewaterhouseCoopers LLP concerning
unaudited interim financial information.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Sullivan & Cromwell (included as part of Exhibit 5.1).
24 Power of Attorney (included as part of the signature page).
99.1 Pharmacia & Upjohn, Inc. Long Term Incentive Plan (incorporated
by reference to Exhibit 10(g) to Pharmacia & Upjohn, Inc.'s Form
10-K for the year ended December 31, 1997).
99.2 Pharmacia & Upjohn, Inc. Equity Compensation Plan (incorporated
by reference to Exhibit 99.1 to the Pharmacia & Upjohn, Inc.'s
Registration Statement on Form S-8 filed on March 22, 1999).
99.3 Amendment of Pharmacia & Upjohn, Inc. Long Term Incentive Plan,
dated August 27, 1999.
99.4 Amendment of Pharmacia & Upjohn, Inc. Equity Compensation Plan,
dated August 27, 1999.
EXHIBIT 5.1
[Letterhead of Sullivan & Cromwell]
September 10, 1999
Pharmacia & Upjohn, Inc.,
95 Corporate Drive,
Bridgewater, New Jersey 08807.
Dear Sirs:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of o shares of Common Stock, par value $.01 per share
(the "Shares"), of Pharmacia & Upjohn, Inc., a Delaware corporation (the
"Company"), issuable upon the exercise of certain options granted pursuant to
the Company's Long Term Incentive Plan and the Company's Equity Compensation
Plan (collectively, the "Plans"), and the attached stock purchase rights (the
"Rights") to be issued pursuant to the Stockholder Protection Rights Agreement,
dated as of March 7, 1997 (the "Rights Agreement"), between the Company and
Harris Trust & Savings Bank, 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 attached 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
EXHIBIT 15
September 10, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our reports dated April 27, 1999 and July 23, 1999 on our
review of interim financial information of Pharmacia & Upjohn, Inc. (the
"Company") as of and for the three-month and six-month periods ended March 31,
1999 and June 30, 1999 and included in the Company's quarterly reports on Form
10-Q for the quarters then ended are incorporated by reference in its
Registration Statement dated September 10, 1999.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
`We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 10, 1999 relating to the
financial statements, which appears in the 1998 Annual Report to Shareholders of
Pharmacia & Upjohn, Inc. (the "Company"), which is incorporated by reference in
the Company's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to our firm under the caption "Independent
Accountants."
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Chicago, Illinois
September 10, 1999
EXHIBIT 99.3
AMENDMENT OF PHARMACIA & UPJOHN, INC. LONG TERM INCENTIVE PLAN
WHEREAS, the Board of Directors of Pharmacia & Upjohn, Inc. (the "Board") has
adopted resolutions approving the Agreement and Plan of Merger, dated as of June
15, 1999 (the "Merger Agreement"), among Sugen, Inc., a Delaware corporation
("Sugen"), Pharmacia & Upjohn, Inc. (the "Company") and a wholly owned
subsidiary of the Company which will merge with and into Sugen, causing Sugen to
become a wholly owned subsidiary of the Company.
WHEREAS, in approving the Merger Agreement the Board adopted a resolution
authorizing the officers of the Company to take any and all actions to perform
or cause to be performed, the obligations of the Company under the Merger
Agreement; and
WHEREAS, the Merger Agreement provides for assumption by the Company of options
to purchase Sugen common stock and the conversion of such options into the right
to purchase the Company's common stock.
NOW, THEREFORE, BE IT RESOLVED, that Section 5 of the Company's Long Term
Incentive Plan is hereby amended to add the following paragraph at the end
thereof:
"Notwithstanding the foregoing, Awards may be granted to
employees and non-employees of the Company and its subsidiaries who
hold similar awards to receive, or which are valued by reference to,
common stock of another company (the "Acquired Company"), if such
Awards are issued pursuant to a requirement that the Company assume
such other awards or issue Awards in substitution of such other awards
pursuant to the terms of an agreement with respect to the Company's
acquisition of the Acquired Company whether by purchase, merger,
consolidation, combination or exchange of shares. The purchase price
per share of the Common Stock under such Awards which are stock options
or stock appreciation rights may be less than 100% of the Fair Market
Value of the Common Stock on the date of the grant of the stock option
or stock appreciation right, provided that such purchase price is
determined in accordance with the agreement for such acquisition."
PHARMACIA & UPJOHN, INC.
By: /s/ Paul Matson
--------------------------
Name: Paul Matson
Date: August 27, 1999
EXHIBIT 99.4
AMENDMENT OF PHARMACIA & UPJOHN, INC. EQUITY COMPENSATION PLAN
WHEREAS, the Board of Directors of Pharmacia & Upjohn, Inc. (the "Board") has
adopted resolutions approving the Agreement and Plan of Merger, dated as of June
15, 1999 (the "Merger Agreement"), among Sugen, Inc., a Delaware corporation
("Sugen"), Pharmacia & Upjohn, Inc. (the "Company") and a wholly owned
subsidiary of the Company which will merge with and into Sugen, causing Sugen to
become a wholly owned subsidiary of the Company;
WHEREAS, in approving the Merger Agreement the Board adopted a resolution
authorizing the officers of the Company to take any and all actions to perform
or cause to be performed, the obligations of the Company under the Merger
Agreement; and
WHEREAS, the Merger Agreement provides for assumption by the Company of options
to purchase Sugen common stock and the conversion of such options into the right
to purchase the Company's common stock.
NOW, THEREFORE, BE IT RESOLVED, that Section 4 of the Company's Equity
Compensation Plan is hereby amended to add the following paragraph at the end
thereof:
"Notwithstanding the foregoing, Awards may be granted to
employees and non-employees of the Company and its subsidiaries who
hold similar awards to receive, or which are valued by reference to,
common stock of another company (the "Acquired Company"), if such
Awards are issued pursuant to a requirement that the Company assume
such other awards or issue Awards in substitution of such other awards
pursuant to the terms of an agreement with respect to the Company's
acquisition of the Acquired Company whether by purchase, merger,
consolidation, combination or exchange of shares. The purchase price
per share of the Common Stock under such Awards which are stock options
or stock appreciation rights may be less than 100% of the Fair Market
Value of the Common Stock on the date of the grant of the stock option
or stock appreciation right, provided that such purchase price is
determined in accordance with the agreement for such acquisition."
PHARMACIA & UPJOHN, INC.
By: /s/ Paul Matson
--------------------------
Name: Paul Matson
Date: August 27, 1999
