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EXHIBIT 1.1
PHARMACIA & UPJOHN, INC.
(a Delaware corporation)
Debt Securities -- Debt Warrants
Preferred Stock -- Common Stock
UNDERWRITING AGREEMENT
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Dated as of ________, 1999
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties.........................................................1
(a) Registration Statement.................................................................1
(b) Compliance with Securities Act Requirements............................................2
(c) No Material Adverse Change in Business.................................................2
(d) Possession of Licenses and Permits.....................................................3
(e) Intellectual Property..................................................................3
(f) Environmental Laws.....................................................................3
(g) Good Standing of the Company and Principal Subsidiaries................................3
(h) Absence of Defaults and Conflicts; Absence of Further Requirements.....................4
(i) Due Authorization, Execution and Delivery..............................................5
(j) Absence of Proceedings.................................................................5
(k) Validity of Debt Securities............................................................5
(l) Validity of Preferred Stock............................................................5
(m) Validity of Common Stock...............................................................5
SECTION 2. Purchase and Offering..................................................................5
SECTION 3. Covenants of the Company...............................................................6
SECTION 4. Conditions of Underwriters' Obligations................................................9
(a) No Stop Order..........................................................................9
(b) Opinion of Special Counsel for the Company.............................................9
(c) Opinion of Counsel for the Company.....................................................9
(d) Opinion of Counsel for Underwriters....................................................9
(e) Material Adverse Change...............................................................10
(f) Officers' Certificate.................................................................10
(g) Accountant's Comfort Letter...........................................................10
(h) Bring-down Comfort Letter.............................................................10
(i) Additional Documents..................................................................11
(j) Changes in Market Conditions..........................................................11
SECTION 5. Indemnification and Contribution......................................................11
SECTION 6. Default of Underwriters...............................................................15
SECTION 7. Reimbursement of Underwriters' Expenses...............................................16
SECTION 8. Representatives; Notices..............................................................16
SECTION 9. Survival..............................................................................17
SECTION 10. Binding Effect; Successors............................................................17
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SECTION 11. Applicable Law........................................................................17
SECTION 12. Counterparts..........................................................................17
ANNEX 1 Pricing Agreement
EXHIBITS:
EXHIBIT A Opinion of the Company's Special Counsel to be Delivered
Pursuant to Section 4(b)
EXHIBIT B Opinion of the Company's Counsel to be Delivered Pursuant to
Section 4(c)
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PHARMACIA & UPJOHN, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
From time to time, Pharmacia & Upjohn, Inc., a Delaware
corporation (the "Company"), having its corporate and its principal office in
Bridgewater, New Jersey, proposes to issue and sell certain of its debt
securities, warrants to purchase debt securities, preferred stock and common
stock, par value $.01 per share (the "Common Stock") registered under the
registration statement referred to in Section 1(a) below (the "Securities"). The
Securities constituting debt securities will be issued under an Indenture, dated
as of , 1999 (the "Indenture"), between the Company and The Bank of New
York, as Trustee, and may be issued in one or more series, which series may vary
as to interest rates, redemption provisions, selling prices and other terms. The
debt warrants will be issued under one or more separate warrant agreements (each
a "Warrant Agreement") between the Company and one or more separate
institutions, as warrant agent, each as identified in the separate Warrant
Agreement in respect of the debt warrants covered thereby (the "Warrant Agent").
Debt securities and debt warrants may be offered separately or together, and if
offered together, the debt warrants may detach from the debt securities after
the time of offering. The Securities constituting preferred stock may be issued
in one or more series, which series may vary as to dividend rates, redemption
provisions, selling prices and other terms. The particular terms of any issuance
of Securities will be determined at the time of offering. The Company intends to
enter into one or more Pricing Agreements (each a "Pricing Agreement" and
together the "Pricing Agreements") in the form of Annex I hereto, with such
additions and deletions as the parties may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to each such Pricing Agreement and the Securities
specified therein) the particular Securities specified in Schedule II to such
Pricing Agreement (with respect to each such Pricing Agreement, the "Designated
Securities"). Each Pricing Agreement shall constitute an agreement by the
Company and the Underwriters to be bound by all of the provisions of this
Underwriting Agreement.
SECTION 1. Representations and Warranties.
The Company represents and warrants to, and agrees with the
Underwriters with respect to each offering of Designated Securities that:
(a) Registration Statement. A registration statement on Form
S-3 in respect of the Securities has been filed with the Securities and Exchange
Commission
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(the "Commission") and has become effective. The registration statement
(including the material incorporated therein by reference and all exhibits
thereto but excluding the Form T-1), as amended at the time of any Pricing
Agreement is hereinafter referred to, with respect to the transaction
contemplated by such Pricing Agreement, as the "Registration Statement". The
prospectus which forms a part of the Registration Statement or is deemed to meet
the requirements thereof (including the material incorporated therein by
reference), as then amended, and as supplemented to reflect the terms of the
Designated Securities (if they are debt securities or preferred stock) and the
terms of offering thereof, and any other material reflected in such supplement,
in the form in which it is first filed, or mailed for filing with the Commission
pursuant to Rule 424 of the Securities Act of 1933, as amended (the "Act"),
including any documents incorporated by reference therein as of the date of such
filing or mailing, is hereinafter referred to as the "Prospectus" and such
supplement is hereinafter referred to as the "Supplement".
(b) Compliance with Securities Act Requirements. (i) On its
effective date and on the effective date of the most recent post-effective
amendment thereto, the Registration Statement (including the material
incorporated therein by reference) conformed in all material respects with the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission (the "Rules and
Regulations"), and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and, on the date of each Pricing
Agreement and each time the Registration Statement is amended, the Registration
Statement, as then amended, will conform in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations
and will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; and each time the Prospectus is amended, on
the date of each supplement thereto and on the date of the Supplement, the
Prospectus as then amended or supplemented, will conform in all material
respects with the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; except that the foregoing does not apply to statements in
or omissions from any such documents based upon information furnished to the
Company in writing by any Underwriter expressly for use therein.
(ii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter expressly for use therein.
(c) No Material Adverse Change in Business. Except as
disclosed in the Prospectus, since the date of the latest audited financial
statements included in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material adverse change, in
the consolidated financial position,
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stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole;
(d) Possession of Licenses and Permits. The Company and each
of its subsidiaries have all concessions, licenses, franchises, permits,
authorizations, approvals and orders of and from all governmental regulatory
officials and bodies that are necessary to own or lease their properties and
conduct their businesses as described in the Prospectus, except where the
failure to have any such concession, license, franchise, permit, authorization,
approval or order would not have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(e) Intellectual Property. The Company and its subsidiaries
own or have had licensed to them or otherwise have the benefit or use under the
authority of the owners thereof, of all patents, patent rights, inventions,
trademarks, service marks, trade names and copyrights (in each case, registered
or not) which are necessary for the conduct of the business of the Company and
its subsidiaries as described in the Prospectus and, except as set forth or
contemplated in the Prospectus, there are no unresolved assertions that the
Company or any of its subsidiaries has infringed the patents, patent rights,
inventions, trademark rights, service marks, trade names or copyrights of
others, other than assertions which are not reasonably likely to have a material
adverse effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole;
(f) Environmental Laws. The Company and its subsidiaries (A)
are in compliance with all applicable federal, state, local and foreign laws and
regulations relating to the protection of human health and safety, and the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
businesses as described in the Prospectus and (C) are in compliance with all
terms and conditions of any such permit, license or approval, in each case
except as described in the Prospectus or except as would not, individually or in
the aggregate, result in a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole;
(g) Good Standing of the Company and Principal Subsidiaries.
The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware and each Principal
Subsidiary of the Company has been duly organized and is validly existing as a
corporation under the laws of its jurisdiction of incorporation, and, in the
case of Principal Subsidiaries incorporated in the United States, is in good
standing under the laws of its jurisdiction of
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incorporation; and each of the Company and each Principal Subsidiary of the
Company has corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except for any
such failure to be so qualified in any such jurisdiction which would not result
in a material adverse effect on the consolidated financial position,
stockholders' equity results of operations of the Company and its subsidiaries,
taken as a whole; as used in this Agreement, "Principal Subsidiaries" means
Pharmacia & Upjohn Company, Pharmacia & Upjohn AB, Pharmacia S.p.A. and
Pharmacia & Upjohn Caribe Inc.;
(h) Absence of Defaults and Conflicts; Absence of Further
Requirements. The sale and delivery of the Designated Securities hereunder and
the compliance by the Company with all of the provisions of the Indenture (if
the Designated Securities are debt securities), the Pricing Agreement (including
the terms of this Agreement), the Warrant Agreement (if any Designated
Securities are debt warrants) and any Delayed Delivery Contracts (as defined
herein) and the consummation of the transactions therein and herein contemplated
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation of any court of
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for such conflicts, breaches,
violations and defaults that would not have a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, or that would otherwise
not materially prejudice the consummation of the transactions contemplated by
the Pricing Agreement (including the terms of this Agreement), the Indenture (if
the Designated Securities are debt securities), the Warrant Agreement (if any
Designated Securities are debt warrants) and any Delayed Delivery Contracts; and
no consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required to be obtained or
made by the Company for the sale and delivery of the Designated Securities or
the consummation by the Company of the transactions contemplated by the Pricing
Agreement (including the terms of this Agreement), the Warrant Agreement (if any
Designated Securities are debt warrants) and any Delayed Delivery Contracts,
except for the registration under the Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
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(i) Due Authorization, Execution and Delivery. This Agreement
has been duly authorized, executed and delivered by the Company; and
(j) Absence of Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, are reasonably likely, individually
or in the aggregate, to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, and to the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(k) [If the Designated Securities are debt securities:]
Validity of Debt Securities. [T]he Indenture has been duly authorized and has
been duly qualified under the Trust Indenture Act; the Designated Securities
have been duly authorized; and when the Designated Securities are delivered and
paid for pursuant to the Pricing Agreement or pursuant to Delayed Delivery
Contracts, the Indenture will have been duly executed and delivered, such
Designated Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Prospectus and the Indenture and such Designated Securities will constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(l) [If the Designated Securities are preferred stock:]
Validity of Preferred Stock. [T]he Designated Securities have been duly
authorized and, when the Designated Securities have been delivered and paid for
in accordance with the Pricing Agreement, such Designated Securities will have
been validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Designated Securities.
(m) [If the Designated Securities are Common Stock:] Validity
of Common Stock. [T]he Designated Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding shares
of capital stock of the Company are, and, when the Designated Securities have
been delivered and paid for in accordance with the Terms Agreement, such
Designated Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights with
respect to the Designated Securities.
SECTION 2. Purchase and Offering. (a) Particular sales of
Designated Securities may be made from time to time to the Underwriters of such
Designated Securities for whom the firm or firms designated as representatives
of the Underwriters of such Designated Securities in the Pricing Agreement
relating thereto will act as representatives, which may include all such
Underwriters in the absence of a syndicate (the "Representatives"). This
Underwriting Agreement, alone, shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any Underwriters to
purchase any of the Securities. Such obligation shall come into existence only
upon execution, by the Company and the Representatives named therein, of the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the firms which will be Underwriters and
their Representatives, the principal amount and/or the number of the Designated
Securities to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters, the initial public offering price and (if the Designated
Securities are debt securities or preferred stock) the terms of the Designated
Securities not already specified (in the Indenture if the Designated Securities
are debt securities), including, but not limited to, as applicable, currency in
which denominated and/or payable, interest rate (if debt securities), dividend
rate (if preferred stock), maturity (if debt securities), redemption provisions
and sinking fund requirements (if any), or not already specified in the Warrant
Agreement (if the Designated Securities are debt warrants) and whether any of
the Designated Securities may be sold pursuant to Delayed Delivery Contracts
("Delayed Delivery Contracts"). Each Pricing Agreement shall also specify the
date, time and manner of delivery and payment for the Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
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(b) Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions set forth in
the Supplement relating to such Designated Securities.
(c) Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable (unless otherwise provided in the Pricing Agreement), and in
such authorized denominations (if the Designated Securities are debt securities)
and, if applicable, registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks payable to
the order of the Company in the funds specified in such Pricing Agreement or by
wire transfer to a bank account specified by the Company, as specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing
Agreement with respect to Designated Securities not being sold pursuant to
Delayed Delivery Contracts, or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Designated Securities.
SECTION 3. Covenants of the Company. In connection with each
offering of Designated Securities, the Company covenants and agrees with the
Underwriters:
(a) To make no further amendment or any supplement to the
Registration Statement or Prospectus after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery
for such Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery, provide Representatives with
a reasonable opportunity to review any such proposed amendment or
supplement and furnish the Representatives with copies thereof and to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a) or (c), 14 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") for so long as the delivery
of a prospectus is required in connection with the offering or sale of
such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, (i) of the
time when any amendment to the Registration Statement has become
effective or any amendment or supplement to the Prospectus has been
filed, (ii) of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of the Prospectus, (iii) of
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the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, (iv) of the initiation or threatening of any
proceeding for any such purpose, or (v) of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and in the event
of the issuance of any such stop order or of any such order preventing
or suspending the use of the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To file the Prospectus with the Commission pursuant to and
in accordance with Rule 424 of the Act not later than the second
business day following the execution and delivery of the Pricing
Agreement.
(c) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale and (if the Offered Securities are debt securities or
preferred stock) the determination of their eligibility for investment
under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(d) To furnish the Underwriters with copies of the Prospectus
in such quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the date of the
Pricing Agreement in connection with the offering or sale of such
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in the Securities
as many copies as the Representatives may from time to time reasonably
request of such amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance.
(e) To make generally available to its security holders as
soon as practicable, but in any event not later than sixteen months
after the date of each Pricing Agreement, an earnings statement of the
Company and its consolidated subsidiaries (which need not be audited)
complying with Section 11(a) of the Act
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and the Rules and Regulations of the Commission thereunder (including,
at the option of the Company, Rule 158 of the Act).
(f) [If the Designated Securities are debt securities or
preferred stock, insert: During the period beginning from the date of
the Pricing Agreement for such Designated Securities and continuing to
and including the earlier of (i) the termination of trading
restrictions on such Designated Securities, of which termination the
Representatives agree to give the Company prompt notice confirmed in
writing, and (ii) the Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after such
Time of Delivery (if the Designated Securities are debt securities) or
any series of preferred stock of the Company (if the Designated
Securities are preferred stock), which in either case are substantially
similar to such Designated Securities without the prior written consent
of the Representatives, except pursuant to arrangements of which the
Representatives have been advised by the Company prior to the time of
execution of such Pricing Agreement, which advice is confirmed in
writing to the Representatives by the end of the business day following
the date of such Pricing Agreement.]
[If the Designated Securities are Common Stock, insert: The
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Representatives for a
period beginning at the time of execution of the Pricing Agreement and
ending the number of days after the Time of Delivery for the Designated
Securities specified in the Pricing Agreement, except issuances of
Common Stock pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each
case outstanding on the date of the Pricing Agreement, grants of
employee stock options pursuant to the terms of a plan in effect on the
date of the Pricing Agreement, issuances of Common Stock pursuant to
the exercise of such options or issuances of Common Stock pursuant to
the Company's dividend reinvestment plan.]
(g) To pay all expenses incident to the performance of the
Company's obligations under this Agreement, and to reimburse the
Underwriters for any expenses (including fees and disbursements of
counsel) incurred in connection with qualifications of the Designated
Securities for sale and (if the Designated Security are debt
securities) determination of their eligibility for investment under
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the laws of such jurisdictions as the Representatives designate and the
printing of memoranda relating thereto and (if the Designated Security
are debt securities) for any fees charged by investment rating agencies
for rating of the Designated Securities.
SECTION 4. Conditions of Underwriters' Obligations. The
obligations of the Underwriters of any Designated Securities hereunder are
subject to the accuracy, as of the Time of Delivery for the Designated
Securities, of the representations and warranties of the Company contained in
Section 1 hereof, to the performance by the Company of its covenants and other
obligations hereunder to be performed at or prior to such Time of Delivery, and
to the following further conditions:
(a) No Stop Order. No stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission.
(b) Opinion of Special Counsel for the Company. The
Representatives shall have received an opinion or opinions, dated the Time of
Delivery for the Designated Securities, of Xxxxxxxx & Xxxxxxxx, counsel for the
Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such opinions for
each of the other Underwriters, collectively to the effect set forth in Exhibit
A hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States, and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(c) Opinion of Counsel for the Company. The Representatives
shall have received the opinion, dated the Time of Delivery for the Designated
Securities, of Xxx X. Xxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such opinions for each of the other Underwriters, collectively to the
effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for Underwriters. The Representatives
shall have received the opinion, dated the Time of Delivery, of Shearman &
Sterling, counsel for the Underwriters, or such other counsel as may be
designated by the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters with respect to such matters as
they may reasonably request. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States, and the
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General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) Material Adverse Change. There shall not have been, since
the respective dates as of which information is given in the Prospectus, any
material adverse change, or development involving a prospective material adverse
change, in the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, except as set forth or
contemplated in the Prospectus, the effect of which is, when viewed in relation
to the Company and its subsidiaries, taken as a whole, in the reasonable
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus.
(f) Officers' Certificate. The Company shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate signed by the President or a Vice President
of the Company and by the chief financial or chief accounting officer of the
Company, dated the Time of Delivery for the Designated Securities, to the effect
that (i) there has not occurred any material adverse change contemplated in
paragraph (e) of this Section 4, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at the Time of Delivery for the Designated Securities, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied pursuant to this Agreement at or prior to the
Time of Delivery for the Designated Securities, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(g) Accountant's Comfort Letter. At the time of the execution
of the Pricing Agreement relating to the Designated Securities, the
Representatives shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At the Time of Delivery for the
Designated Securities, the Representatives shall have received from
PricewaterhouseCoopers LLP a letter, dated such Time of Delivery, to the effect
that it
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reaffirms the statements made in the letter furnished pursuant to subsection (g)
of this Section 4, except that the specified date referred to shall be a date
not more than three business days prior to such Time of Delivery.
(i) Additional Documents. At the Time of Delivery for the
Designated Securities, counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Designated Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained.
(j) Changes in Market Conditions. Subsequent to the date of
the Pricing Agreement relating to the Designated Securities, there shall not
have occurred any of the following: (i) any downgrading in the rating of any
debt securities of the Company by Xxxxx'x Investors Service, Inc. or Standard
and Poor's Ratings Group, or any public announcement that either organization
has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating), (ii)
trading in the Company's common stock shall have been suspended on the New York
Stock Exchange or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or material escalation of hostilities in which the
United States is involved or other substantial national or international
calamity or crisis if the effect of any such event described in this clause (iv)
on the financial markets of the United States, in the reasonable judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus.
SECTION 5. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus supplement (or contained in any Registration Statement after it first
becomes effective but prior to the Pricing Agreement or in any prospectus
forming a part thereof during such period), or any document incorporated by
reference therein, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in
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reliance upon and in conformity with written information furnished to the
Company by any Underwriter, directly or through the Representatives, expressly
for use therein; and provided, further, that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection (a) to the
extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the Act and the untrue statement or omission of a material fact
contained in the Prospectus, any such amendment or supplement thereto or any
such other document was corrected in the Prospectus or the Prospectus as then
amended or supplemented if the Company has furnished prior to such confirmation
sufficient copies thereof to such Underwriter.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus supplement, or any document incorporated by reference therein, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter, directly or through
the Representatives, expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of any claim or of the commencement of any
action for which indemnification under subsection (a) or (b) may be requested,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing thereof. The omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
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defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it or other indemnified
parties, or both, which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party or its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof (other than reasonable costs of investigation conducted at the request
of such indemnifying party) unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by such indemnifying party,
representing the indemnified parties under such subsection who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5
shall be unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Designated Securities and also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other in connection with the
offering of the Designated Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Securities
(before deducting expenses) received by the Company bears to the total
underwriting discounts and commissions received by the Underwriters in respect
thereof, in each case as set forth in the Prospectus. The relative fault shall
be determined by reference
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to, among other things, whether the indemnified party failed to give the notice
required under subsection (c) above, including the consequences of such failure,
and whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, of the Company on the one hand and the
Underwriters, directly or through the Representatives, on the other hand.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 5 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act, and the obligations of the
Underwriters under this Section 5 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who signs the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
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SECTION 6. Default of Underwriters. (a) If any Underwriter
shall default in its obligation to purchase the Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the purchase
of such Designated Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in the Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives or the Company, or both, as provided in
subsection (a) above, the aggregate principal amount (if debt securities or debt
securities which include debt warrants) or number of shares (if preferred stock
or Common Stock) of such Designated Securities which remains unpurchased does
not exceed one-tenth of the aggregate principal amount or number of shares, as
applicable, of the Designated Securities, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount or
number of shares, as applicable, of Designated Securities which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount or number of shares,
as applicable, of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default. As used in this paragraph (b) and in paragraph (c) below of
this Section 6, the "aggregate principal amount" of Designated Securities shall
mean the aggregate principal amount of the Designated Securities that are
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debt securities plus the public offering price, if any, of any debt warrants
included in the Designated Securities.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives or the Company, or both, as provided in
subsection (a) above, the aggregate principal amount (if debt securities) or
number of shares (if preferred stock or Common Stock) of Designated Securities
which remains unpurchased exceeds one-tenth of the aggregate principal amount or
number of shares, as applicable, of the Designated Securities, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the party
of any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters provided in Section 3(g) hereof and
the indemnity and contribution agreements in Section 5 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
SECTION 7. Reimbursement of Underwriters' Expenses. If any
Pricing Agreement shall be terminated pursuant to Section 6 hereof or if the
Designated Securities are not delivered by or on behalf of the Company because
of any of the events referred to in Section 4(j), then the Company shall not
then be under any liability to any Underwriter with respect to Designated
Securities covered by such Pricing Agreement except as provided in Section 3(g)
and Section 5 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 3(g) and
Section 5 hereof.
SECTION 8. Representatives; Notices. In all dealings
hereunder, the Representatives of the Underwriters of Designated Securities
shall act on behalf of each of such Underwriters, and the parties hereto shall
be entitled to act and rely upon any statement, request, notice, waiver or
agreement on behalf of any Underwriter made or given by such Representatives.
All statements, requests, notices and agreements hereunder
shall be in writing or by telegram if promptly confirmed in writing and if to
the Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be
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sufficient in all respects if delivered or sent by registered mail to the
address of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to any Underwriter pursuant to
Section 5(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in the applicable Pricing Agreement or, if
not so set forth, in its Underwriters' Questionnaire delivered to the Company.
SECTION 9. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement and the Pricing Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement and the
Pricing Agreement, shall remain in full force and effect, regardless of any
investigation (or any statements as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
SECTION 10. Binding Effect; Successors. This Agreement and
each Pricing Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Section 5 and
Section 7 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
SECTION 11. Applicable Law. THIS AGREEMENT AND EACH PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 12. Counterparts. This Agreement and each Pricing
Agreement may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof.
Very truly yours,
Pharmacia & Upjohn, Inc.
----------------------------------------
By:
Title:
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Accepted as of the date first above written:
[Insert signature block[s] for the
Representative[s], acting on behalf of the
Underwriters, or for each Underwriter if no
syndicate]
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ANNEX I
PRICING AGREEMENT
[Debt Securities] [Debt Warrants] [Preferred Stock] [Common Stock] [Date]
To the [Underwriter[s] named in Schedule I]
[Representative[s] named in Schedule II
of the Underwriters named in Schedule I]
Dear Sirs:
Pharmacia & Upjohn, Inc. (the "Company") proposes subject to the terms
and conditions stated herein and in the Underwriting Agreement, dated [date]
(the "Underwriting Agreement"), between the Company on the one hand and [ ] on
the other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provision had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has delivered to you for each of the Underwriters copies of
the Registration Statement and Prospectus, including the documents incorporated
therein by reference. The Prospectus (including the Supplement relating to the
Designated Securities) in the form heretofore delivered to you is now proposed
to be filed, or mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the principal amount or
number, as applicable, of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
[The Company authorizes the Underwriters to solicit offers to purchase
Designated Securities from the Company pursuant to Delayed Delivery Contracts
substantially in the form of Schedule III hereto but with such changes therein
as the
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Company may approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, at the Time of Delivery a commission in the
amount set forth in Schedule II. Delayed Delivery Contracts are to be with
purchasers of the types approved by the Company and set forth in the Prospectus
and subject to other conditions set forth in such Delayed Delivery Contracts.
Except as the Company may otherwise agree, each Delayed Delivery Contract must
be for the minimum principal amount or number of shares, as applicable, set
forth in Schedule II hereto and the aggregate principal amount of all Delayed
Delivery Contracts may not exceed the amount or number of shares, as applicable,
set forth in such Schedule II. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.]
[If the Company executes and delivers Delayed Delivery Contracts, the
Securities subject to such contracts shall be deducted from the Designated
Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares, as applicable, of Designated Securities to
be purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount or number of shares, as applicable, of Designated Securities
set forth opposite each Underwriter's name in Schedule I hereto, except to the
extent that the Representatives determine that such reduction shall be otherwise
and so advise the Company in writing; provided, however, that the total
principal amount or number of shares, as applicable, of Designated Securities to
be purchased by all Underwriters shall be the total principal amount or number
of shares, as applicable, of Designated Securities set forth in Schedule I
hereto less the principal amount or number of shares, as applicable, of
Designated Securities covered by Delayed Delivery Contracts. As used in this
paragraph and in the immediately preceding paragraph, the "aggregate principal
amount" of Designated Securities shall mean the aggregate principal amount of
the Designated Securities that are debt securities plus the public offering
price, if any, of any debt warrants included in the Designated Securities.]
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your
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acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to authority granted to you by such Underwriter.
Very truly yours,
Pharmacia & Upjohn, Inc.
---------------------
By:
Title:
Accepted as of the date hereof:
[Insert signature block[s] for the
Representative[s], acting on behalf of the
Underwriters, or for each Underwriter if no
syndicate.]
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SCHEDULE I
Underwriters [Principal Amount] [Number of Designated
[Number] of Designated Securities that are Debt
Securities to be Warrants to be Purchased]
Purchased
[Names of Underwriters]
Total
I-1
26
SCHEDULE II
[Debt Securities] [Preferred Stock] [Common Stock]
[If Designated Securities are debt securities or debt securities which include
debt warrants, insert:
Title of Designated Securities:
[. .]% [Floating Rate] [Zero Coupon] [Notes] [Debentures] due . . . . .
Aggregate Principal Amount:
[$]. . . . . . . . . . . . . . . . . .
Price to Public:
. .% of the principal amount of the Designated Securities, plus accrued
interest from . . . . . . . . to the time of Delivery [and accrued
amortization, if any, from . . . . . . . to the Time of Delivery]
Purchase Price by Underwriters:
. .% of the principal amount of the Designated Securities, plus accrued
interest from . . . . . . to the Time of Delivery [and accrued
amortization, if any, from . . . . . . to the Time of Delivery]
Indenture:
Indenture, dated as of __________, 1999, between the Company and
[______________________], as Trustee
Maturity:
. . . . . . . . . . . . . . . . . . . .
Interest Rate:
[. .]% [Zero Coupon] [See Floating Rate Provisions] [See Event Risk
Provisions]
Interest Payment Dates:
[months and dates]
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27
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, in the
amount of [$]. . . . . . . . . or an integral multiple thereof, ]
[on or after. . . . . . . . . . . . . . . . at the following redemption
prices (expressed in percentages of principal amount). If redeemed on
or before . . . . . . . . . . ., . . . .%, and if] redeemed during the
12-month period beginning . . . . . . . . . . . .
Year Redemption Price . . . . . . . . .and thereafter at 100%
of their principal amount, together in each case with accrued interest
to the redemption date.]
[on any interest payment date falling on or after . . . . . . . . . . .
. , at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law.]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$]. . . . . . . . . . . principal amount of Designated
Securities on . . . . . . . . . in each of the years . . . . . . . .
through . . . . . . . at 100% for their principal amount plus accrued
interest] [, together with [cumulative] [noncumulative] redemptions at
the option of the Company to retire an additional [$] . . . . . . . .
principal amount of Designated Securities in the years . . . . .
through . . . . . . . at 100% of their principal amount plus accrued
interest.]
[If Securities are extendable debt Securities, insert--
Extendable Provisions:
Securities are repayable on . . . . . . . . . . . . . ., . . .
. . [[insert date and years,] at the option of the holder, at their
principal amount with accrued interest. Initial annual interest rate
will be . . .%, and thereafter annual interest rate will be
II-2
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adjusted on . . . . . . . . . . . . ., . . . . and . . . . . to a rate
not less than . . . . .% of the effective annual interest rate on U.S.
Treasury obligations with . . . .-year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Securities are Floating Rate debt Securities, insert--
Floating Rate Provisions:
Initial annual interest rate will be . . . .% through . . . .
. . . . .[and thereafter will be adjusted [monthly] [on each . . . . .
. . . . . , . . . . . . ., . . . . . . and . . . . . ] [to an annual
rate of . . . .% above the average rate for . . . . . .-year [month]
[securities] [certificates of deposit] by . . . . . . . . and . . . . .
. . . . . . . [insert names of banks].] [and the annual interest rate
[thereafter] [from . . . . . . through . . . . . ] will be the interest
yield equivalent of the weekly average per annum market discount rate
for . . . . .-month Treasury bills plus . . . .% of Interest
Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for . . . . .-month certificates of
deposit over (ii) then current interest yield equivalent of the weekly
average per annum market discount rate for . . . . .-month Treasury
bills]; [from . . . . . . and thereafter the rate will be the then
current interest yield equivalent plus . . . .% of Interest
Differential].]
Issuable in temporary global form: [Yes] [No]
Issuable in permanent global form: [Yes] [No] ]
[If Designated Securities are debt warrants, insert:
Number of Debt Warrants to be issued:
Warrant Agreement:
Form of Debt Warrants: [Registered]
Issuable jointly with other Securities: [Yes] [No]
[Number of Debt Warranties issued with each ........ amount or
$.......... principal amount of other Securities]
[Detachable Date:]
Date from which Debt Warrants are exercisable:
II-3
29
Date on which Debt Warrants expire:
Exercise price(s) of Debt Warrants:
Public offering price: $. . . . . . . . .
Purchase price: $. . . . . . . . .
Title and terms of Warrant Securities:
Principal Amount of Warrant Securities purchasable upon exercise of one
Warrant:]
[If Designated Securities are preferred stock or Common Stock, insert:
Title of Designated Securities:
Number of Shares:
Dividend Rate (1):
Optional Redemption (1):
Sinking Fund (1):
Listing (1): [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts (1): [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is $ per share of the Delayed
Delivery Contract Securities.]
Purchase Price: $ per share [If preferred stock issue, insert--plus
accrued dividends[, if any,] from , 19 ].
Expected Reoffering Price: $ per share, subject to change by the
[Representative[s]] [Underwriters].
Closing: A.M. on , 19 , at ,
in New York Clearing House (next day) funds.
--------
(1) To be included only if Terms Agreement relates to preferred stock.
II-4
30
Underwriter[s']['s] Compensation (1): $ payable to the [Representative[s]
for the proportionate accounts of the] Underwriter[s] on the Closing Date.
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]]
[Underwriter[s]]:] ]
--------
(1) Include if purchase is at public offering price and compensation
payable separately.
II-5
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SCHEDULE III
Delayed Delivery Contract
Pharmacia & Upjohn, Inc.
c/o: [Date]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Pharmacia & Upjohn, Inc.
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned [[$]
principal amount] [number] of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus dated , 19 [as amended or supplemented], receipt of a copy of which
is hereby acknowledged, at a purchase price of [ % of the principal amount
thereof, plus accrued interest from the date from which interest accrues as set
forth below] [ per share], and on the further terms and conditions set
forth in this contract.
[The undersigned will purchase the Designated Securities from the
Company on , 19 (the "Delivery Date") [and interest on the Designated
Securities so purchased
will accrue from , 19 .]]
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
Delivery Date [Principal Amount] [Date from Which Interest
[Number of Debt Accrues]
Warrants/Shares]
, 19 [$] , 19
, 19 [$] , 19
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
III-1
32
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in funds at the office of
, , or by wire transfer to a bank account
specified by the Company, on [the] [such] Delivery Date upon delivery to the
undersigned of the Designated Securities then to be purchased by the undersigned
in definitive [bearer] [fully registered] form and in such denominations and
[registered in such names] as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five business
days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
conditions that (a) the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject and (b) the Company, on
or before , 19 , shall have sold to the several Underwriters, pursuant to
the Pricing Agreement dated , 19 with the Company, an [aggregate
principal amount and/or number] of Designated Securities equal to ,
minus the aggregate principal amount and/or a number] of Designated Securities
to be covered by this contract and other contracts similar to this contract. The
obligation of the undersigned to take delivery of and make payment for the
Designated Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
Promptly after completion of the sale of the Designated Securities to
the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
Opinion or Opinions of Counsel for the Company delivered to the Underwriters in
connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
The contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
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33
It is understood that the acceptance of the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptance of such contracts need not
be on a first-come, first-serve basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
By:
(Name and Title)
(Address)
Accepted, , 19
Pharmacia & Upjohn, Inc.
By:
[Title]
III-3
34
EXHIBIT A
OPINION OF THE COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 4(b)
The opinions of special counsel for the Company referred to in
Section 4(b) collectively shall be substantially to the following effect
(capitalized terms used but not defined herein shall have the meaning ascribed
to them in the Underwriting Agreement):
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(ii) If the Designated Securities are debt securities and/or
debt warrants, insert bracketed terms, as applicable: [The Indenture
has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act of 1939]; [T][t]he
Designated Securities have been duly authorized, [executed,
authenticated,] issued and delivered; and the [Indenture and] [Warrant
Agreement] the Designated Securities constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
[If the Designated Securities are preferred stock or common
stock, insert:] [The Designated Securities have been duly authorized
and validly issued and are fully paid and nonassessable [if the
Designated are preferred stock, insert: [, and the terms of the
Designated Securities are valid and binding on the Company].
(iii) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the
Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware for the
issuance, sale and delivery of the Designated Securities by the Company
have been obtained or made.
(iv) If the Designated Securities are debt warrants, insert
bracketed term: The Underwriting Agreement [, the Warrant Agreement]
and the Pricing Agreement relating to the Designated Securities have
been duly authorized, executed and delivered by the Company.
In addition, such counsel shall state that they have reviewed
the Registration Statement and the Prospectus, participated in discussions with
the Representatives and the representatives of the Company and its accountants
and that, on the basis of the information gained in such discussions, the
Registration Statement or any amendment, as of the date it became effective, and
the Prospectus, as of the date of the Prospectus, appeared on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the Rules and Regulations. Further, such counsel shall confirm that nothing
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35
that came to their attention in the course of the aforementioned review has
caused them to believe that the Registration Statement, as of the date it became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of the
Prospectus and as of the Time of Delivery of the Designated Securities,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such, however, that such counsel shall not be required to assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the caption[s] ["Description of Debt Securities We May Offer" [,
"Description of Debt Warrants We May Offer"] [Description of Preferred Stock we
may offer] [and] "Underwriting" in the Prospectus insofar as [it] [they] relate
to provisions of documents therein described. Also, such counsel need not
express any opinion or belief as to the financial statements or other financial
data contained in the Registration Statement or the Prospectus [, or as to the
statement of the eligibility and qualification of the Trustee under the
Indenture under which the Designated Securities are being offered].
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EXHIBIT B
OPINION OF THE COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 4(c)
The opinion of counsel for the Company referred to in Section
4(c) shall be substantially to the following effect (capitalized terms used but
not defined herein shall have the meaning ascribed to them in the Underwriting
Agreement):
(i) Each Principal Subsidiary of the Company that is
incorporated in the United States (a "Principal U.S. Subsidiary") has
been duly organized and is validly existing under the laws of its
jurisdiction of incorporation; each of the Company and each Principal
U.S. Subsidiary of the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction; and, to
the best of such counsel's knowledge and belief after reasonable
investigation, each Principal Subsidiary of the Company that is
incorporated outside of the United States has been duly organized and
is validly existing under the laws of its jurisdiction of incorporation
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
each Principal U.S. Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable, and
except as otherwise set forth in the Prospectus, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates) and the Securities conform to the
description of the Securities included in or incorporated by reference
in the Prospectus;
(iii) The sale and delivery of the Designated Securities under
the Pricing Agreement [and] [,] the Underwriting Agreement [and the
Warrant Agreement] and the compliance by the Company with all of the
provisions of the Pricing Agreement [and] [,] the Underwriting
Agreement [and the Warrant
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37
Agreement] and the consummation of the transactions contemplated
therein will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
Principal Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or Bylaws of the Company or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its Principal Subsidiaries or any of their properties, except for
such conflicts, breaches, violations and defaults that would not have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, or that would not otherwise materially
prejudice the consummation of the transactions contemplated by this
Agreement;
(iv) To the best of such counsel's knowledge, the Company and
each of its Principal Subsidiaries have all concessions, licenses,
franchises, permits, authorizations, approvals and orders of and from
all relevant governmental regulatory officials and bodies that are
necessary to own or lease their properties and conduct their businesses
as described in the Prospectus, except where the failure to have any
such concession, license, franchise, permit, authorization, approval or
order would not have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole;
(v) To the best of such counsel's knowledge, the Company and
its Principal Subsidiaries own or have had licensed to them or
otherwise have the benefit or use under the authority of the owners
thereof of, all patents, patent rights, inventions, trademarks, service
marks, trade names and copyrights (in each case, registered or not)
which are necessary for the conduct of the business of the Company and
its subsidiaries as described in the Prospectus, except for any such
failure as would not have a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, and, to the best of his
knowledge and except for the matters described in the Prospectus, there
are no unresolved assertions that the Company or any of its
subsidiaries has infringed the patents, patent rights, inventions,
trademark rights, service marks, trade names or copyrights of others,
other than assertions which, if determined adversely to the Company or
any of its subsidiaries, would not individually or in the aggregate
with respect to similar claims, have a material adverse effect on the
consolidated financial position,
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38
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole;
(vi) To the best of such counsel's knowledge and other than
the matters described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, are reasonably likely,
individually or in the aggregate with respect to similar claims, to
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(vii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and he has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading (other than the financial statements and other
financial data as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely upon opinions
of local counsel and in respect of matters of fact upon certificates of officers
of the Company, provided that such counsel shall state that he believes both you
and he are justified in relying upon such opinions and certificates.
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