Pfizer Inc 8-K, filed Nov 13, 2020
Pfizer Inc (PFE)
About this 8-K
Pfizer Inc filed this 8-K on November 13, 2020, reporting on events of November 12, 2020.
Items reported
- Item 3.02: Unregistered sale of equity
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information set forth in Item 5.03 below is incorporated herein by reference. The Preferred Shares (defined below) were issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On November 12, 2020, Pfizer Inc. (“Pfizer”) filed with the Secretary of State of the State of Delaware a Certificate of Designation of Series B Junior Participating Redeemable Preferred Stock (the “Certificate of Designation”). The Certificate of Designation was adopted by resolution of the Company’s Board of Directors pursuant to the Restated Certificate of Incorporation of the Company, as amended (the “Charter”), which vests in Pfizer’s Board of Directors the authority to provide for the authorization and issuance of one or more series of preferred stock of Pfizer within the limitations and restrictions set forth in the Charter.
On November 12, 2020, Pfizer entered into an exchange agreement with (i) the Rabbi Trust for the Pfizer Inc. Performance-Contingent Share Award Program, the Pfizer Inc. Stock and Incentive Plan, the Pfizer Inc. 2001 Stock and Incentive Plan and the Pfizer Inc. 2001 Performance-Contingent Share Award Program, (ii) the Rabbi Trust pursuant to the Grantor Trust Agreement (Common Stock) dated October 6, 2009 by and between Wyeth and The Northern Trust Company and (iii) certain wholly-owned subsidiaries of Pfizer (collectively, the “Exchange Parties”), pursuant to which Pfizer issued 1/100th of a share of Series B Junior Participating Redeemable Preferred Stock, without par value (“Preferred Shares”) to each Exchange Party for each share of common stock, par value $0.01 per share, of Pfizer (“Pfizer Common Stock”) held by such Exchange Party (the “Exchange”). Pfizer issued an aggregate of 6,250,791.94 Preferred Shares to the Exchange Parties in the Exchange. The Exchange is intended to ensure that the Exchange Parties do not receive shares of common stock, par value $0.01 per share, of Upjohn Inc. (“Upjohn Common Stock”) in connection with Pfizer’s previously announced planned separation and distribution of its global, primarily off-patent branded and generic established medicines business, which will be combined with Mylan N.V. (the “Proposed Transaction”).
The Preferred Shares are redeemable, at the option of Pfizer, for shares of Pfizer Common Stock at the redemption rate set forth in the Certificate of Designation. If Pfizer completes the distribution of Upjohn Common Stock in the Proposed Transaction, then the Preferred Shares will automatically be redeemed by Pfizer for shares of Pfizer Common Stock, at the redemption rate set forth in the Certificate of Designation. The Preferred Shares have such other powers, privileges, preferences and relative participating, optional or other rights, and the qualifications, limitations or restrictions thereof, as are set forth in the Certificate of Designation. The Certificate of Designation is attached hereto as Exhibit 3.1, and is incorporated herein by reference, and the foregoing summary of the Preferred Shares is qualified in its entirety by reference thereto.
Forward-Looking Statements
This communication contains “forward-looking statements”. Such forward-looking statements may include, without limitation, statements about the Proposed Transaction, the expected timetable for completing the Proposed Transaction, the benefits and synergies of the Proposed Transaction, future opportunities for the combined company and products and any other statements regarding Pfizer’s, Mylan’s, the Upjohn business’s (the “Upjohn Business’s”) or the combined company’s future operations, financial or operating results, capital allocation, dividend policy, debt ratio, anticipated business levels, future earnings, planned activities, anticipated growth, market opportunities, strategies, competitions, and other expectations and targets for future periods. Forward looking statements may often be identified by the use of words such as “will”, “may”, “could”, “should”, “would”, “project”, “believe”, “anticipate”, “expect”, “plan”, “estimate”, “forecast”, “potential”, “pipeline”, “intend”, “continue”, “target”, “seek” and variations of these words or comparable words. Because forward-looking statements inherently involve risks and uncertainties, actual future results may differ materially from those expressed or implied by such forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to: ongoing challenges and uncertainties posed by the COVID-19 pandemic for businesses
and governments around the world; the parties’ ability to meet expectations regarding the timing, completion and accounting and tax treatments of the Proposed Transaction; changes in relevant tax and other laws; the parties’ ability to consummate the Proposed Transaction; the conditions to the completion of the Proposed Transaction not being satisfied or waived on the anticipated timeframe or at all; inherent uncertainties involved in the estimates and judgments used in the preparation of financial statements and the providing of estimates of financial measures, in accordance with U.S. GAAP and related standards or on an adjusted basis; the integration of Mylan and the Upjohn Business being more difficult, time consuming or costly than expected; Mylan’s, the Upjohn Business’s and the combined company’s failure to achieve expected or targeted future financial and operating performance and results; the possibility that the combined company may be unable to achieve expected benefits, synergies and operating efficiencies in connection with the Proposed Transaction within the expected time frames or at all or to successfully integrate Mylan and the Upjohn Business; customer loss and business disruption being greater than expected following the Proposed Transaction; the retention of key employees being more difficult following the Proposed Transaction; Mylan’s, the Upjohn Business’s or the combined company’s liquidity, capital resources and ability to obtain financing; any regulatory, legal or other impediments to Mylan’s, the Upjohn Business’s or the combined company’s ability to bring new products to market, including but not limited to where Mylan, the Upjohn Business or the combined company uses its business judgment and decides to manufacture, market and/or sell products, directly or through third parties, notwithstanding the fact that allegations of patent infringement(s) have not been finally resolved by the courts (i.e., an “at-risk launch”); success of clinical trials and Mylan’s, the Upjohn Business’s or the combined company’s ability to execute on new product opportunities; any changes in or difficulties with Mylan’s, the Upjohn Business’s or the combined company’s manufacturing facilities, including with respect to remediation and restructuring activities, supply chain or inventory or the ability to meet anticipated demand; the scope, timing and outcome of any ongoing legal proceedings, including government investigations, and the impact of any such proceedings on Mylan’s, the Upjohn Business’s or the combined company’s consolidated financial condition, results of operations and/or cash flows; Mylan’s, the Upjohn Business’s and the combined company’s ability to protect their respective intellectual property and preserve their respective intellectual property rights; the effect of any changes in customer and supplier relationships and customer purchasing patterns; the ability to attract and retain key personnel; changes in third-party relationships; actions and decisions of healthcare and pharmaceutical regulators; the impacts of competition; changes in the economic and financial conditions of the Upjohn Business or the business of Mylan or the combined company; the impact of outbreaks, epidemics or pandemics, such as the COVID-19 pandemic; uncertainties regarding future demand, pricing and reimbursement for Mylan’s, the Upjohn Business’s or the combined company’s products; and uncertainties and matters beyond the control of management and other factors described under “Risk Factors” in each of Pfizer’s, Upjohn Inc.’s (“Newco’s”) and Mylan’s Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and other filings with the Securities and Exchange Commission (“SEC”). These risks, as well as other risks associated with Mylan, the Upjohn Business, the combined company and the Proposed Transaction are also more fully discussed in the Registration Statement on Form S-4, as amended, which includes a proxy statement/prospectus (as amended, the “Form S-4”), which was filed by Newco with the SEC on October 25, 2019 and declared effective by the SEC on February 13, 2020, the Registration Statement on Form 10, which includes an information statement (the “Form 10”), which was filed by Newco with the SEC on June 12, 2020 and declared effective by the SEC on June 30, 2020, a final information statement furnished with the Current Report on Form 8-K filed by Newco with the SEC on August 6, 2020 (the “Final Information Statement”), a definitive proxy statement, which was filed by Mylan with the SEC on February 13, 2020 (the “Proxy Statement”), and a prospectus, which was filed by Newco with the SEC on February 13, 2020 (the “Prospectus”). You can access Pfizer’s, Mylan’s and Newco’s filings with the SEC through the SEC website at www.sec.gov or through Pfizer’s or Mylan’s website, as applicable, and Pfizer and Mylan strongly encourage you to do so. Except as required by applicable law, Pfizer, Mylan and Newco undertake no obligation to update any statements herein for revisions or changes after this communication is made.
Additional Information and Where to Find It
This communication shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended. In connection with the Proposed Transaction, Newco and Mylan have filed certain materials with the SEC, including, among other materials, the Form S-4, Form 10 and Prospectus filed by Newco and the Proxy Statement filed by Mylan. The Form S-4 was declared effective on February 13, 2020 and the Proxy Statement and the Prospectus were first mailed to shareholders of Mylan on or about February 14, 2020 to seek approval of the Proposed Transaction. The Proposed Transaction was approved by Mylan’s shareholders on June 30, 2020. The Form 10 was declared effective on June 30, 2020. Newco made available the Final Information Statement on or about August 6, 2020. Newco and Mylan intend to file additional relevant materials with the SEC in connection with the Proposed Transaction. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT MYLAN, NEWCO AND THE PROPOSED TRANSACTION. The documents relating to the Proposed Transaction (when they are available) can be obtained free of charge from the SEC’s website at www.sec.gov. These documents (when they are available) can also be obtained free of charge from Mylan, upon written request to Mylan or by contacting Mylan at (724) 514-1813 or investor.relations@mylan.com or from Pfizer on Pfizer’s internet website at https:// investors.Pfizer.com/financials/sec-filings/default.aspx or by contacting Pfizer’s Investor Relations Department at (212) 733-2323, as applicable.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
| 3.1 | Certificate of Designation of Series B Junior Participating Redeemable Preferred Stock | |
| 104 | Cover Page Interactive Data File—The cover page XBRL tags are embedded within the Inline XBRL Document | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| PFIZER INC. | ||
| By: | /s/ Margaret M. Madden | |
| Margaret M. Madden | ||
| Senior Vice President and Corporate Secretary Chief Governance Counsel | ||
Date: November 13, 2020
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
SERIES B JUNIOR PARTICIPATING REDEEMABLE PREFERRED STOCK
OF
PFIZER INC.
(PURSUANT TO SECTION 151 OF THE DELAWARE GENERAL CORPORATION LAW)
Pfizer Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies that the following resolutions were adopted by the Board of Directors of the Corporation (the “Board of Directors”) as required by Section 151 of the General Corporation Law at a meeting duly called and held on August 6, 2020:
WHEREAS, the Corporation has entered into an exchange agreement (the “Subsidiary Exchange Agreement”) with Pharmacia & Upjohn LLC, Pharmacia & Upjohn Company LLC, and Pfizer Luxco Holdings S.a.r.l. (the “Affiliates”), pursuant to which the Corporation has agreed to issue to the Affiliates shares of a series of preferred stock of the Corporation having the powers, preferences and relative participating, optional or other special rights set forth herein, in exchange for the shares of common stock of the Corporation, par value $0.05 per share (the “Common Stock”), held by the Affiliates;
WHEREAS, the Corporation has entered into exchange agreements (collectively, the “Rabbi Trust Exchange Agreements”) with each of (i) the Rabbi Trust for the Pfizer Inc. Performance-Contingent Share Award Program, the Pfizer Inc. Stock and Incentive Plan, the Pfizer Inc. 2001 Stock and Incentive Plan and the Pfizer Inc. 2001 Performance-Contingent Share Award Program (the “PCSA Trust”), and (ii) the Grantor Trust Agreement (Common Stock) dated October 6, 2009 by and between Wyeth and The Northern Trust Company (the “Stock Trust” and together with the PCSA Trust, the “Rabbi Trusts”), pursuant to which the Corporation has agreed to issue to the Rabbi Trusts shares of a series of preferred stock of the Corporation having the powers, preferences and relative participating, optional or other special rights set forth herein, in exchange for the Common Stock held by the Rabbi Trusts;
WHEREAS, the Corporation and Upjohn Inc. have entered into a Separation and Distribution Agreement, dated as of July 29, 2019, as amended (as it may be further amended from time to time, the “SDA”);
WHEREAS, the Board of Directors is authorized, subject to limitations prescribed by law and the provisions of the Restated Certificate of Incorporation of the Corporation, as amended (the “Charter”), by resolution to provide for the issuance of any series of preferred stock of the Corporation, and to fix the designation of such series, and the powers, preferences and rights of the shares of such series, and the qualifications, limitations or restrictions thereof;
WHEREAS, the Board of Directors has determined that it is in the best interests of the Corporation and its stockholders to designate a new series of Preferred Stock, without par value, of the Corporation (“Preferred Stock”); and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to establish and fix the terms of a series of Preferred Stock of the Corporation and the number of shares constituting such series.
NOW, THEREFORE, BE IT RESOLVED, that, pursuant to Article FOURTH of the Charter (which authorizes 27,000,000 shares of Preferred Stock, without par value) and the authority conferred on the Board of Directors, the Board of Directors hereby fixes the designation, powers, preferences and rights, and the qualifications, limitations or restrictions, of a new series of Preferred Stock; and be it further
RESOLVED, that each share of such new series of Preferred Stock shall rank equally in all respects with each other share of such series and shall be subject to the following provisions:
Section 1. Designation and Number. The Board of Directors hereby designates a series of Preferred Stock of the Corporation entitled the “Series B Junior Participating Redeemable Preferred Stock” (the “Series B Junior Participating Redeemable Preferred Stock”). The total number of Series B Junior Participating Redeemable Preferred Stock that may be issued pursuant to this Designation shall be 6,250,791.94, but such Series B Junior Participating Redeemable Preferred Stock shall only be issuable pursuant to the Subsidiary Exchange Agreement and the Rabbi Trust Exchange Agreements.
Section 2. Ranking. The Series B Junior Participating Redeemable Preferred Stock shall, with respect to the payment of distributions of the Corporation and rights upon the dissolution, liquidation or winding-up of the Corporation, subject to Section 3 of this Designation, rank: (i) junior to any other series of Preferred Stock, and (ii) pari passu with the Common Stock.
Section 3. Distributions; Liquidation Rights. The holders of Series B Junior Participating Redeemable Preferred Stock shall be entitled to receive, on a pari passu basis, any distributions payable to holders of Common Stock in the amount that such holders would have received if, immediately prior to each record date in respect of which distributions are paid, each 1/100th of a share of Series B Junior Participating Redeemable Preferred Stock were converted into one share of Common Stock, except that they shall not be entitled to receive any distribution by the Corporation of common stock, par value $0.01 per share, of Upjohn Inc. (“Upjohn” and such shares, the “Upjohn Common Stock”).
Section 4. Maturity. The Series B Junior Participating Redeemable Preferred Stock shall be perpetual.
Section 5. Redemption.
(a) Optional Redemption. Prior to the Record Date (as defined in the SDA) for the Distribution (as defined in the SDA), the Corporation may, at its option and without further notice required, redeem at any time all (but not less than all) of the Series B Junior Participating Redeemable Preferred Stock at a redemption rate of 100 shares of Common Stock for each share of Series B Junior Participating Redeemable Preferred Stock (and a pro rata portion of 100 shares of Common Stock for any fractional share of Series B Junior Participating Redeemable Preferred Stock) (the “Optional Exchange Ratio”).
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(b) Mandatory Redemption. At the Distribution Time (as defined in the SDA), each share of the Series B Junior Participating Redeemable Preferred Stock shall, without any further action on the part of the Corporation or any holder thereof, be redeemed at the redemption rate set forth in Section 5(c).
(c) Redemption Rate. Upon the occurrence of a mandatory redemption set forth in Section 5(b), each share of Series B Junior Participating Redeemable Preferred Stock shall be redeemed for a number of shares of Common Stock equal to (i) the Optional Exchange Ratio multiplied by (ii) the Adjustment Ratio (as defined below); provided that the Corporation shall deliver cash in lieu of any fractional shares of Common Stock to which a holder of shares of Series B Junior Participating Redeemable Preferred Stock would otherwise be entitled after giving effect to the calculation set forth in this Section 5(c).
(d) For purposes of this Certificate:
| A. | “Adjustment Ratio” means (I) the Pre-Separation Pfizer Common Stock Value divided by (II) the Post-Separation Pfizer Common Stock Value; |
| B. | “Distribution Ratio” means number of shares of Upjohn Common Stock distributed in the Distribution (as defined in the SDA) for each share of Pfizer Common Stock outstanding on the Record Date (as defined in the SDA). |
| C. | “Post-Separation Pfizer Common Stock Value” means (I) the Pre-Separation Pfizer Common Stock Value minus (II) the product of (x) the Pre-Separation Mylan Common Stock Value and (y) the Distribution Ratio; |
| D. | “Pre-Separation Mylan Common Stock Value” means the closing price of ordinary shares, nominal value €0.01 per share, of Mylan trading on the Nasdaq Stock Market (“NASDAQ”) on the Trading Day immediately prior to the Distribution Date (as defined in the SDA); |
| E. | “Pre-Separation Pfizer Common Stock Value” means the closing price of Common Stock trading on New York Stock Exchange (the “NYSE”) on the Trading Day immediately prior to the Distribution Date (for the avoidance of doubt, in the “regular way” market and/or including due bills with respect to the Distribution (as defined in the SDA), as applicable); |
| F. | “Trading Day” shall mean a day on which shares of common stock of each of the Corporation and Mylan are traded on the NYSE and NASDAQ, respectively. |
(e) Except as provided in this Section 5, the Series B Junior Participating Redeemable Preferred Stock is not convertible into or redeemable for any other property or securities of the Corporation or Upjohn.
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(f) Shares of Series B Junior Participating Redeemable Preferred Stock that have been issued and redeemed or reacquired in any manner shall (upon compliance with any applicable provisions of the laws of Delaware) have the status of authorized but unissued shares of Preferred Stock undesignated as to series, and may be designated or re-designated and issued or reissued, as the case may be, as part of any series of Preferred Stock; provided that any issuance of such shares as Series B Junior Participating Redeemable Preferred Stock must be in compliance with the terms hereof.
Section 6. Voting Rights.
(a) Each share of Series B Junior Participating Redeemable Preferred Stock shall entitle the holder thereof to one hundred votes on all matters submitted to a vote of the stockholders of the Corporation; provided that while these shares are held by a subsidiary of the Corporation, they will not be entitled to any voting rights except as hereinafter provided in this Section 6, as otherwise provided in the Charter or as otherwise required by law.
(b) The affirmative consent or approval of holders of any materially and disproportionately adversely affected outstanding shares of Series B Junior Participating Redeemable Preferred Stock shall be required to alter, repeal or amend any provisions of the Charter or this Certificate, whether by merger, consolidation, combination, reclassification or otherwise (an “Event”), if the alteration, repeal or amendment would materially and disproportionately adversely affect the rights, powers or preferences of the holders of shares of Series B Junior Participating Redeemable Preferred Stock; provided, however, that (i) an Event will not be deemed to materially and disproportionately adversely affect such rights, powers or preferences, in each such case where each share of Series B Junior Participating Redeemable Preferred Stock remains outstanding without a material change to its terms and rights or is converted into or exchanged for preferred stock of the surviving entity having preferences and other rights, privileges, voting powers, restrictions, limitations and terms or conditions of redemption thereof identical in all material respects to that of a share of Series B Junior Participating Redeemable Preferred Stock; (ii) the creation, or increase in the authorized number of shares, of Common Stock or Preferred Stock of any kind will not be deemed to materially and disproportionately adversely affect such rights, powers or preferences; and (iii) the Distribution will not be deemed to materially and disproportionately adversely affect such rights, powers or preferences.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed in its name and on its behalf by its Senior Vice President and Corporate Secretary, Chief Governance Counsel on November 12, 2020.
| PFIZER INC. | ||
| By: | /s/ Margaret M. Madden | |
| Name: | Margaret M. Madden | |
| Title: | Senior Vice President and Corporate Secretary, Chief Governance Counsel | |