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November 21, 2019
Michael Goettler
President
Upjohn Inc.
235 East 42nd Street
New York, NY 10017
Re: Upjohn Inc.
Registration Statement on Form S-4
Filed October 25, 2019
File No. 333-234337
Dear Mr. Goettler:
We have reviewed your registration statement and have the following
comments. In
some of our comments, we may ask you to provide us with information so we may
better
understand your disclosure.
Please respond to this letter by amending your registration statement
and providing the
requested information. If you do not believe our comments apply to your facts
and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to your registration statement and the
information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-4
Questions and Answers about the Transactions, page 1
1. Please revise to add a question and answer to explain the significance
of the parties
structuring the transaction as a reverse merger with NewCo domiciled in
Delaware as
opposed to the Netherlands where Mylan has been domiciled since 2015. In
particular,
please discuss the role that corporate governance and taxation played in
this decision. In
this regard:
We refer to Mylan's July 29, 2019 investor call and Mr. Coury's
statements
highlighting the role that "governance" and building the company
"without
interference" played in the decision to leave the United States in
2015 and his current
readiness to "turn this company back over to shareholders."
Accordingly, the
disclosure should explain the governance concerns that led Mylan to
conduct the
Michael Goettler
FirstName LastNameMichael Goettler
Upjohn Inc.
Comapany 21, 2019
November NameUpjohn Inc.
Page 2
November 21, 2019 Page 2
FirstName LastName
2015 inversion and the reasons why Mylan is now ready to change
its approach to
corporate governance and seeking shareholder approval to come
back to the United
States.
We note that the combined company's historical financial
statements will be those of
Mylan N.V. Accordingly, please revise to discuss the tax
implications of domiciling
the combined company in the United States as opposed to the
Netherlands and
indicate whether taxation factored into this decision.
In addition, please revise other sections of the document including,
without limitation, the
"Background of the Combination" section and "Mylan Board's Reasons for
the
Combination," to discuss the negotiations and decision to domicile the
combined
company in the United States.
Q. What will happen in the Distribution?, page 2
2. Revise to explain briefly the reason(s) why Pfizer may opt to effect
the Distribution by
way of a split-off. Indicate whether there is a material impact to the
post-combination
business or to Mylan shareholders if Pfizer opts for the split-off. If
there are no impact,
please revise to clarify this point.
Q. What will happen in the Combination?, page 3
3. Revise the second paragraph to clarify, if true, that you are
describing the "Alternative
Transaction" structure. Explain, if true, that Mylan holders could
receive fewer shares in
the Combination if this structure were adopted. With reference to the
15% rate referenced
on page 138, revise to quantify the potential impact to the 43% Mylan
shareholder stake
referenced throughout the joint proxy statement/prospectus. Also,
explain whether there
would be a material impact to the post-combination business if the
Alternative
Transaction structure were utilized.
Exclusive Forum, page 76
4. We note that your forum selection provision identifies the Court of
Chancery of the State
of Delaware as the sole and exclusive forum for certain litigation,
including any
"derivative action." Please disclose whether this provision applies to
actions arising under
the Securities Act or Exchange Act. In that regard, we note that
Section 27 of the
Exchange Act creates exclusive federal jurisdiction over all suits
brought to enforce any
duty or liability created by the Exchange Act or the rules and
regulations thereunder, and
Section 22 of the Securities Act creates concurrent jurisdiction for
federal and state courts
over all suits brought to enforce any duty or liability created by the
Securities Act or the
rules and regulations thereunder. If the provision applies to
Securities Act claims, please
also revise your prospectus to state that there is uncertainty as to
whether a court would
enforce such provision and that investors cannot waive compliance with
the federal
securities laws and the rules and regulations thereunder.
Michael Goettler
Upjohn Inc.
November 21, 2019
Page 3
Background of the Combination, page 90
5. Please revise the Background section to provide disclosure concerning
material issues
discussed and key terms negotiated during the May 2 to June 13
timeframe. In this
regard, we note that the disclosures concerning the first six weeks of
the
discussions/negotiations do not address any material transaction terms
beyond that the
parties were considering a Reverse Morris Trust transaction.
6. Further to the comment above, please revise the disclosure concerning
the initial May 2,
2019 meeting between Messrs. Boula and Coury regarding a potential
combination
transaction. In this regard, we note that the disclosure is limited to
a single sentence.
Similarly, please revise to explain the contents of the "informational
materials regarding
the Upjohn Business and a potential combination of Mylan and the
Upjohn Business"
which Pfizer provided to Mylan on May 7, 2019.
7. Please revise the Background section so that it is clear where each
party stood with respect
to material transaction terms during the course of the three-month
negotiations. For
instance, when discussing meetings between the parties or their
advisers, identify the party
that proposed a material transaction term and indicate whether the
other party agreed
and/or proffered a counter proposal.
8. We note that the Background section discusses the meetings and
deliberations of the
Mylan Board and Mylan's Strategic Review Committee from May 2 through
June 26;
however, the disclosure does not similarly discuss any meetings or
deliberations
conducted by Pfizer's Board or its executives. Please revise or
advise.
9. With reference to the mid-July 2019 entries, please discuss the
magnitude of the pre-
Distribution liabilities of the UpJohn Business at issue and the
reason(s) why the parties
changed course on whether the combined company would assume these
liabilities.
10. With reference to the July 12, 2019 entry, we note disclosure
referencing the "treatment of
certain potential Mylan liabilities." Please revise to clarify what
liabilities were at issue
and how the parties negotiated the treatment of these liabilities.
11. Revise the July 24-26 and July 26-28 entries to identify the
unresolved transaction terms.
12. With reference to Mylan's July 29, 2019 investor call, please discuss
the decision and any
negotiations concerning establishment of NewCo's dividend policy. Your
discussion
should also cover any negotiations concerning the initial size of the
dividend.
Opinions of Mylan's FinancialGoettler page 101
FirstName LastNameMichael Advisors,
Comapany NameUpjohn with all materials, including any board books provided by
Centerview
13. Please provide us Inc.
November 21, 2019 Page 3the Mylan board.
and PJT Partners to
FirstName LastName
Michael Goettler
FirstName LastNameMichael Goettler
Upjohn Inc.
Comapany 21, 2019
November NameUpjohn Inc.
Page 4
November 21, 2019 Page 4
FirstName LastName
Business Combination Agreement, page 142
14. Please revise your disclosure here and elsewhere as applicable to
discuss Section 8.26 of
the agreement and clarify material risks to the NewCo entity,
particularly in light of the
Legal Proceedings disclosure from Mylan's Form 10-Q for the period
ended
September 30, 2019. In this regard, the Section 8.26 provision would
appear to magnify
the impact of any future legal Losses by requiring NewCo to pay an
additional cash
amount to Pfizer equal to 57% of the Loss resulting from the
third-party action. Also,
please re-file Annex A to include Section 8.26 of Mylan's Disclosure
Schedule or explain
why this information is not material to investors.
Post-Combination Governance and Management, page 164
15. We refer to Mylan's June 21, 2019 Form 8-K filing concerning the Mylan
Board's on-
going consideration of the views and perspectives expressed by
shareholders to extend the
scope of the company's clawback policy. Please revise the joint
proxy/prospectus to
indicate whether Newco has a clawback policy and, if applicable,
discuss the key features
of this policy and any differences with Mylan's existing policy. Given
the determination
that Mylan is the accounting acquirer and that the historical
financial statements of the
combined company will be those of Mylan, please revise here and
elsewhere, as
applicable, to discuss whether consummation of the Combination
Transaction would
prevent the ability to clawback compensation from Mylan executives in
the future.
Specified Purchase Agreement, page 182
16. Please revise to discuss Meridian Medical Technologies, including its
business focus and
size, and also clarify the status of negotiations concerning the
potential consideration to be
paid. In this regard, please clarify your disclosure that "(t)he terms
of the Specified
Purchase Agreement (if executed) would reflect substantially similar
terms as the
Business Combination Agreement and the Separation and Distribution
Agreement, but
taking into account differences between the Upjohn Business and the
Meridian Medical
Technologies business."
Unaudited Pro Forma Condensed Combined Financial Information, page 256
17. Please address the following regarding your presentation of the $12
billion distribution
payment to Pfizer and the reimbursement feature for certain Mylan
liabilities as described
in Section 8.26 of Business Combination Agreement:
Revise the narrative introduction section to the Pro Formas as well
as the relevant Pro
Forma footnotes to clearly disclose that you are excluding the $12
billion distribution
payment to Pfizer from your computation of the merger
consideration, and explain to
the reader the reasons for such treatment here. Clearly identify
for the reader how the
$12 billion is being reflected in the Pro Forma adjustments.
Revise the narrative introduction as well as the relevant Pro Forma
footnotes to
discuss the terms and impact of the reimbursement feature in
Section 8.26 to confirm,
Michael Goettler
FirstName LastNameMichael Goettler
Upjohn Inc.
Comapany 21, 2019
November NameUpjohn Inc.
Page 5
November 21, 2019 Page 5
FirstName LastName
if true, that this feature is not reflected in the historical
financial statements or the Pro
Forma adjustments. Identify the nature of the liabilities covered
by this section. To
the extent you determined that such adjustments would be
prohibited by Regulation
S-X, disclose that fact.
Similarly, revise your Calculation of the Combination
Consideration on page 89 and
your Accounting Treatment section on page 125 to disclose both
the treatment of the
$12 billion cash distribution as well as the reimbursement
provisions of Section 8.26.
Clearly identify how each of these provisions affects the
purchase price and the
exchange ratio, and identify the nature of the liabilities
covered by this section.
Newco Unaudited Pro Forma Condensed Combined Balance Sheet as of June 30, 2019,
page 258
18. Please address the following regarding your pro forma presentation:
Provide us a complete analysis of your accounting treatment of the
Reverse Morris
Trust transaction including the determination of the accounting
acquirer and
consideration exchanged. Refer us to the technical guidance upon
which you relied
including your consideration of ASC 805-10-55-11 through 55-15 and
ASC 805-40-
45.
Demonstrate your restatement of the equity structure of Mylan using
the exchange
ratio established in the merger agreement.
Provide us with your calculation of the weighted-average number of
shares
outstanding as multiplied by the exchange ratio in the merger
agreement.
As discussed on page 3, at Pfizer's option, shares of Newco stock
will be distributed
to its shareholders by way of either a spin-off or a split-off.
You disclose that
currently a spin-off structure is expected. Revise the
introduction section on page
256 as well as your Accounting Treatment section on page 125 to
explain the planned
accounting treatment for a hypothetical split-off, and revise page
256 to disclose its
potential impact on your pro forma presentation.
Similarly, you disclose on page 3 that if the Mylan Merger is not
consummated
within the identified parameters, the combination will occur
through an alternative
structure. Revise the Accounting Treatment section and Pro Forma
introductory
narrative to explain how the accounting for that alternative
structure would be
different from your current structure.
Condensed Combined Statements of Equity, page F-6
19. Please revise to more clearly describe the business purpose of
transactions included in the
caption, "net transfers to Pfizer", and provide a breakdown
quantifying and describing
material components of this caption for each period presented,
including the impact of
your adoptions of new accounting guidance as referred to in Note (a).
Exhibits
20. With reference to page 141, please file the bridge loan facility as an
exhibit.
Michael Goettler
Upjohn Inc.
November 21, 2019
Page 6
21. According to your disclosure, you omitted schedules from exhibits 2.1
and 2.2. Please file
a list briefly identifying the contents of all omitted schedules or
similar supplements as
required by Item 601(b)(2) of Regulation S-K.
General
22. We note your disclosures on pages 277-284 comparing of the existing
rights of Mylan
shareholders against the prospective rights of NewCo stockholders. For
each provision
highlighted in this section, please provide us an analysis explaining
why Mylan is not
presenting the applicable NewCo provision as a separate proposal to
its shareholders. For
example, and without limitation, we note that the reverse merger
transaction would:
change voting thresholds necessary to amend governing documents; alter
the board
structure; adopt a stockholder rights plan; indemnify directors and
officers; and change the
forum where claims may be brought. For guidance, please refer to Rule
14a-4(a)(3) and
Compliance and Disclosure Interpretations Regarding Unbundling under
Rule 14a-4(a)(3)
in the M&A Context (Updated October 27, 2015).
23. We note that "Proposal 1: Approval of the Combination Proposal"
contains five separate
resolutions. Please provide us an analysis explaining why Mylan does
not present the
fourth resolution concerning approval of the "Alternative Transaction
Structure" as a
separate voting matter. In this regard, the disclosure on page 138 and
145 suggests that
Mylan shareholders could receive materially less merger consideration
in the form of
NewCo stock in the event that the merger parties were to utilize this
"Alternative
Transaction Structure" as opposed to the preferred "Mylan Newco
Liquidation
Distribution" structure.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
You may contact Franklin Wyman at 202-551-3660 or Kevin W. Vaughn,
Accounting
Branch Chief, at 202-551-3494 if you have questions regarding comments on the
financial
statements and related matters. Please contact Joseph McCann at 202-551-6262 or
Celeste
Murphy, Legal Branch Chief, at 202-551-3257 with any other questions.
FirstName LastNameMichael Goettler Sincerely,
Comapany NameUpjohn Inc.
November 21, 2019 Page 6 Division of
Corporation Finance
FirstName LastName Office of Life
Sciences