As filed with the Securities and Exchange Commission on April 2, 1998
Registration No. 33-
===========================================================================
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 9, 2001
REGISTRATION NO. 333-65444(4)
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
Bristol-Myers Squibb Company------------------
BRISTOL-MYERS SQUIBB COMPANY
(Exact name of registrant as specified in its charter)
Delaware 22-079-0350
(State of Incorporation) (I.R.S. Employer Identification No.)
Delaware 22-079-0350
(State or other jurisdiction (I.R.S. employer identification number)
of incorporation or organization)
--------------------------
345 Park Avenue
New York, N.Y.PARK AVENUE
NEW YORK, NY 10154
(212) 546-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------------------
John L. McGoldrick, Esq. Alice C. Brennan, Esq.
Senior Vice President, Law and Vice President and Secretary
Strategic Planning and General Counsel 345 Park Avenue--------------------------
John L. McGoldrick, Esq. Sandra Leung, Esq.
Executive Vice President, Secretary
President -- Medical Devices Group, 345 Park Avenue
General Counsel New York, NY 10154
345 Park Avenue (212) 546-4000
New York, NY 10154
(212) 546-4000
(212) 546-4000
---------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------
Copies to:
Susan Webster, Esq. [Underwriter's Counsel]
Cravath, Swaine & Moore [ ]
Worldwide Plaza [ ]
825 Eighth Avenue [ ]
New York, NY 10019 [ ]--------------------------
COPIES TO:
Susan Webster, Esq. Robert M. Thomas, Jr., Esq.
Cravath, Swaine & Moore Sullivan & Cromwell
Worldwide Plaza 125 Broad Street
825 Eighth Avenue New York, NY 10004
New York, NY 10019 (212) 558-4000
(212) 474-1000
---------------------------
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this registration statement, as
determined by the registrant in light of market conditions.
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT, AS
DETERMINED BY THE REGISTRANT IN LIGHT OF MARKET CONDITIONS.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]
- -------offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[X]
---------------------------box: / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
--------------------------
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS INCLUDED IN
THIS REGISTRATION STATEMENT ALSO RELATES TO DEBT SECURITIES REGISTERED UNDER A
REGISTRATION STATEMENT (NO. 333-49227) PREVIOUSLY FILED BY THE REGISTRANT.
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CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Proposed
Amount to be Registered Maximum Maximum Amount of
Title of Each Class of Offering Price Aggregate Registration
Securities to be Registered Per Unit* Offering Price* FeeTITLE OF PROPOSED MAXIMUM
EACH CLASS OF SECURITIES AMOUNT AGGREGATE OFFERING AMOUNT OF REGISTRATION
TO BE REGISTERED TO BE REGISTERED (1) PRICE (1)(2) FEE
Debt Securities................... $1,000,000,000** 100% $1,000,000,000 $295,000
===================================================================================================================Securities.......................................
Preferred Stock(3)....................................
Depositary Shares(3)..................................
Common Stock(3).......................................
Warrants..............................................
Total................................................. $4,000,000,000(4) $4,000,000,000(4) $1,000,000(4)(5)
*(1) Subject to Rule 462(b) under the Securities Act, in no event will the
aggregate initial offering price of the securities issued under this
Registration Statement (which includes securities issued hereunder pursuant
to Rule 429 under the Securities Act) exceed $5,000,000,000, or if any
securities are issued in any foreign currency units, the U.S. dollar
equivalent of $5,000,000,000. For Debt Securities issued with an original
issue discount, the amount to be registered is calculated as the initial
accreted value of such Debt Securities.
(2) Estimated solely for the purposepurposes of calculating the registration fee.
Excludes accrued interest and accrued amortizationfee pursuant
to Rule 457(o).
(3) In addition to any Preferred Stock, Depositary Shares or Common Stock that
may be issued directly under this Registration Statement, there are being
registered hereunder an indeterminate number of discount, if
any, to the dateshares of delivery.
** Plus an additional principal amountPreferred Stock,
Depositary Shares or Common Stock as may be issued upon conversion or
exchange of Debt Securities, Preferred Stock or Depositary Shares, as the
case may be. No separate consideration will be received for any shares of
Preferred Stock, Depositary Shares or Common Stock so issued with
original issue discount such that the aggregate initial public
offering price of all Debt Securities will not exceed $1,000,000,000
(the initial public offering price of any Debt Securities denominated
in any foreign currenciesupon conversion
or units based on or relatedexchange.
(4) Pursuant to currencies
shall be the U.S. dollar equivalent thereof).
---------------------------
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in accordance
with Section 8(a) ofRule 429 under the Securities Act of 1933, or until the prospectus
included in this registration statement shall become effectivealso relates to $1,000,000,000 of
debt securities previously registered under Registration Statement on
Form S-3 (File No. 333-49227), none of which were sold. Accordingly, this
registration statement also constitutes post-effective amendment No. 1 to
such date asearlier registration statement and the Commission, acting
pursuant to said Section 8(a), may determine.
===========================================================================prospectus contained herein
covers a total of $5,000,000,000 of the Registrant's securities.
(5) Previously paid.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED April 2, 1998
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.AUGUST 9, 2001
PROSPECTUS
BRISTOL-MYERS SQUIBB COMPANY
345 Park AvenuePARK AVENUE
NEW YORK, NY 10154
[LOGO]
------------------
$5,000,000,000
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
------------------
BRISTOL-MYERS SQUIBB WILL PROVIDE SPECIFIC TERMS OF THESE SECURITIES
IN SUPPLEMENTS TO THIS PROSPECTUS.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT TO THIS PROSPECTUS
CAREFULLY BEFORE YOU INVEST.
---------------------
The common stock and $2 convertible preferred stock of Bristol-Myers Squibb
are listed on the New York NY 10154
(212) 546-4000
$1,000,000,000
Debt Securities
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WeStock Exchange and the Pacific Exchange, Inc. under
the symbols "BMY" and "BMYPR", respectively. Any common stock or $2 convertible
preferred stock sold pursuant to a prospectus supplement will provide specific termsbe listed, subject
to notice of issuance, on these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully
before you invest.
--------------------------------------stock exchanges.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is April, 2001.
TABLE OF CONTENTS
PAGE
--------
About this Prospectus....................................... 3
Forward-Looking Statements.................................. 3
Where You Can Find More Information......................... 3
Description of the Company.................................. 4
Use of Proceeds............................................. 4
Ratio of Earnings to Fixed Charges and Earnings to Combined
Fixed Charges and Preferred Stock Dividends............... 4
Description of the Debt Securities.......................... 5
Description of the Preferred Stock.......................... 16
Description of the Depositary Shares........................ 18
Description of the Common Stock............................. 21
Description of the Warrants................................. 22
Plan of Distribution........................................ 23
Legal Opinion............................................... 24
Experts..................................................... 24
2 1998
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amountan aggregate offering price of $1,000,000,000.$5,000,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described immediately below
under the heading WHERE YOU CAN FIND MORE
INFORMATION.
We"Where You Can Find More Information."
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements, including statements
regarding, among other items, our business and operating strategy, operations,
economic performance and financial condition. These forward-looking statements
are participating in the SEC's plain English program. This is an
initiative launched by the SECsubject to make prospectusesrisks, uncertainties and assumptions, some of which are beyond
our control. For further details and a discussion of these and other risks and
uncertainties, see the Company's SEC filings, including the Company's Annual
Report on Form 10-K for the year ended December 31, 2000. Actual results may
differ materially from those expressed or implied by such forward-looking
statements. We undertake no obligation to publicly update or revise any forward-
looking statements, whether as a result of new information, more understandable tofuture events or
otherwise. In light of these risks, uncertainties and assumptions, the general investor.forward-
looking events and circumstances discussed in this prospectus might not occur.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois.rooms:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
Please call the SEC at 1-800-SEC-0330 for further information on the
operations of the public reference rooms. Our common stock and $2 convertible
preferred stock are listed on the New York Stock Exchange and the Pacific
Exchange, Inc. Our reports, proxy statements and other information can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference any future filings we make with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and until we sell all of the securities and thesesecurities. We also specifically
incorporate by reference the following documents, which we have already filed
with the SEC:
oi. Our Annual Report on Form 10-K for the year ended December 31, 1997.2000;
ii. Our Quarterly report on Form 10-Q for the quarter ended March 31, 2001;
and
iii. Our Current Reports on Form 8-K, filed on June 8, 2001 and January 25,
2001.
3
We encourage you to read our periodic and current reports. We think these
reports provide additional information about our company which prudent investors
find important. You may request a copy of these filings as well as any future
filings incorporated by reference, at no cost, by writing or telephoning us at
our principal executive offices at the following address:
Bristol-Myers Squibb Company
345 Park Avenue
New York, NY 10154
Attention: Secretary
(212) 546-4000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
We have filed exhibits with this registration statement that include
the form of proposed underwriting agreement and indenture. You should read
the exhibits carefully for provisions that may be important to you.
DESCRIPTION OF THE COMPANY
Bristol-Myers Squibb Company iswas incorporated under the laws of the State of
Delaware in August 1933 under the name Bristol-Myers Company as successor to a
worldwide organization engaged
primarilyNew York business started in the manufacture and sale of a broad range of pharmaceutical
products, consumer medicines, nutritional products, medical devices, and
beauty care products. Our principal business segments are:
o Pharmaceuticals, consisting of prescription medicines, primarily
cardiovascular, anti-cancer, anti- infective and central nervous
system drugs and other pharmaceutical products;
o Consumer Medicines, consisting primarily of analgesics, skin care
products, cough/cold remedies, deodorants and anti-perspirants;
o Nutritionals, consisting primarily of infant formulas and other
nutritional products;
o Medical Devices, consisting primarily of orthopaedic implants, ostomy
and wound care products, surgical instruments and other medical
devices;
o Beauty Care, consisting primarily of hair coloring and hair care
preparations.
All references1887. In 1989, we changed our name to us in this prospectus include Bristol-Myers
Squibb Company, as a result of a merger. Through our divisions and its subsidiaries,
unless the context otherwise requires.we are a major producer and distributor in one significant business
segment--medicines. In general, our business is not seasonal.
USE OF PROCEEDS
We will useUnless we otherwise specify in the applicable prospectus supplement, the net
proceeds we receive from the sale of the securities offered securitiesby this prospectus
and the accompanying prospectus supplement will be used for general corporate
purposes. General corporate purposes including working capital, capital
expenditures, stock purchase programs,may include the repayment and refinancing of debt,
and acquisitions. Weinvestments in or extensions of credit to our subsidiaries, redemption of
preferred stock, or the financing of possible acquisitions or business
expansion. The net proceeds may invest funds not required immediatelybe invested temporarily or applied to repay
short-term debt until they are used for such
purposes in marketable securities and short-term investments.
RATIOtheir stated purpose.
RATIOS OF EARNINGS TO FIXED CHARGES OurAND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's ratio of earnings to fixed
charges and the Company's ratio of earnings to combined fixed charges and
preferred stock dividends (which is the same) for each of the years ended is
as follows:
1993 1994 1995 1996 1997
22.67 20.84 16.20 30.40 27.46
This ratio shows the coverage of earnings before income taxes to fixed
charges, which consist primarily of interest and debt expense. Excluding
the impact of special charges,periods indicated:
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
- -------------------------------------- ----------------------------------------------------------------------------
2001 2000 2000 1999 1998 1997 1996
- --------------------- -------- -------- -------- -------- -------- --------
45.26........ 40.10 37.93 30.56 19.13 23.19 26.24
We compute the ratio of earnings to fixed charges for
1993, 1994 and 1995 wouldby dividing earnings by
fixed charges. This calculation excludes the effects of accounting changes which
have been 26.91, 26.70made over time and 24.23.
For purposesdiscontinued operations.
We compute the ratio of computingearnings to combined fixed charges and preferred
stock dividends by dividing earnings by the sum of fixed charges and dividends
on preferred stock. Due to the immaterial amount of preferred stock dividends,
the ratio of earnings to combined fixed charges and preferred stock dividends is
equal to the ratio of earnings to fixed charges,
"earnings"charges. "Earnings" consist of income
from continuing operations before provision for income taxes and fixed charges,
excluding capitalized interest. "Fixed charges" consist of interest and debt
expense, capitalized interest and one-third of rental expense, which we believe
is a reasonable approximation of the interest factor of such rental expense.
4
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the debt securities covered by this prospectussets forth
general terms that may apply to the debt securities. The particular terms of any
debt securities will be our direct
unsecured obligations.described in the prospectus supplement relating to those
debt securities.
The debt securities will be issued in oneeither our senior debt securities or more
seriesour
subordinated debt securities. The senior debt securities will be issued under an
indenture (the "indenture")dated as of June 1, 1993, between us and The Chase Manhattan Bank, as
Trustee.trustee. This indenture is referred to as the "senior indenture". The
subordinated debt securities will be issued under an indenture to be entered
into between us and the trustee named in a prospectus briefly outlines somesupplement. This indenture
is referred to as the "subordinated indenture". The senior indenture and the
subordinated indenture are together called the "indentures".
The following is a summary of the indenture provisions. The
indenture has beenmost important provisions of the
indentures. Copies of the indentures are filed as an exhibitexhibits to the registration
statement andof which this prospectus is a part. Section references below are to
the sections in the applicable indentures. The referenced sections of the
indentures are incorporated by reference. We encourage you shouldto read our
indentures.
1. GENERAL
Neither indenture limits the amount of debt securities that we may issue.
Each indenture for provisionsprovides that debt securities may be importantissued up to you.
In the summary below, we have included
referencesprincipal
amount authorized by our board of directors from time to section numbers of the indenture so that you can easily
locate these provisions.
Generaltime. The senior debt
securities will be unsecured and will have the same rank equally withas all of our other
unsecured and unsubordinated debt. The indenture does not limit the amount ofsubordinated debt wesecurities will be
unsecured and will be subordinated and junior to all senior indebtedness.
The debt securities may issue under the indenture or otherwise. We may issue the debt
securitiesbe issued in one or more separate series with the sameof senior
debt securities or various maturities, at
par or a premium or with original issue discount.subordinated debt securities. The prospectus supplement
relating to anythe particular series of debt securities being offered will include specificdescribe
the particular amounts, prices and terms relating to the offering.of those debt securities. These terms
will include some or all ofinclude:
- the following:
o The title and type of the debt securities;
o The- the total principal amount of the debt securities;
o The- the percentage of the principal amount at which the debt securities will
be issued and any payments due if the maturity of the debt securities is
accelerated;
o The- the date or dates on which the principal of the debt securities will be
payable;
o Whether- whether the debt securities will be denominated in, and whether the
principal of and any premium and any interest on the debt securities will
be payable in, any foreign currency or foreign currency units;
o The- the interest rate or rates, if any, which the debt securities will bear,
the date or dates from which any interest will accrue, the interest
payment dates for the debt securities and the regular record date for any
interest payable on any interest payment date;
o Any- any optional or mandatory redemption periods;
o Anyprovisions;
- any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem the debt securities;
o Whether- whether the debt securities are to be issued in individual certificates to
each holder or in the form of global securities held by a depositorydepositary on
behalf of holders;
o Any- any changes to or additional Eventsevents of Defaultdefault or covenants;
o Any5
- any special tax implications of the debt securities, including provisions
for original issue discount securities, if offered;
o Any terms upon which the debt securities may be convertible into- any conversion or exchanged for other debt securities or indebtedness or other
securities ofexchange provisions; and
- any other issuer or obligor; and
o Any other specific terms of the debt securities.
Consolidation, MergerUnless we otherwise specify in the prospectus supplement:
- the debt securities will be registered debt securities; and
- registered debt securities denominated in U.S. dollars will be issued in
denominations of $1,000 or Sale
We have agreed not to consolidate with or merge into any other
corporation or convey or transfer substantially allan integral multiple of our properties$1,000. (Sections 301
and assets to any person, unless
(a) the successor corporation is organized and existing under the laws302 of the indentures).
Debt securities may bear legends required by United States or any State or the District of Columbia;
(b) the successor corporation expressly assumes by a supplemental
indenture the dueFederal tax law
and punctual paymentregulations. (Section 201 of the principalindentures)
If any of the debt securities are sold for any foreign currency or currency
unit, or if any payments on the debt securities are payable in any foreign
currency or currency unit, the prospectus supplement will describe any
restrictions, elections, tax consequences, specific terms and any premium
or any interest on all
other information
relating to the debt securities and the performanceforeign currency or currency unit.
Some of every covenantthe debt securities may be issued as original issue discount debt
securities. Original issue discount securities bear no interest or bear interest
at below-market rates. These are sold at a discount below their stated principal
amount. If we issue these securities, the prospectus supplement will describe
any special tax, accounting or other considerations relevant to these
securities.
EXCHANGE, REGISTRATION AND TRANSFER
Debt securities may be transferred or exchanged at the corporate trust
office of the security registrar or at any other office or agency which is
maintained for these purposes. No service charge will be payable upon the
transfer or exchange, except for any applicable tax or governmental charge.
The designated security registrar in the indentureUnited States for the senior debt
securities is The Chase Manhattan Bank, located at 450 West 33rd Street, New
York, New York 10001. The security registrar for the subordinated debt
securities will be designated in a prospectus supplement.
In the event of any redemption in part of any series of debt securities, we
will not be required to issue, register the transfer of, or exchange debt
securities of any series between the opening of business 15 days before the day
of the mailing of a notice of redemption of securities of such series selected
for redemption and the close of business on the day of mailing of the relevant
notice of redemption.
(Section 305 of the indentures)
PAYMENT AND PAYING AGENT
We will pay principal, interest and any premium on fully registered
securities in the designated currency or currency unit at the office of the
paying agent. Payment of interest on fully registered securities may be made by
check mailed to the persons in whose names the debt securities are registered on
days specified in the indentures or any prospectus supplement. (Section 307 of
the indentures)
If any amount payable on any debt security or coupon remains unclaimed at
the end of two years after the amount became due and payable, the paying agent
will release any unclaimed amounts to us. (Section 1003 of the indentures)
6
Our paying agent in the United States for the senior debt securities is The
Chase Manhattan Bank, located at 450 West 33rd Street, New York, New York 10001.
We will designate the paying agent for the subordinated debt securities in the
applicable prospectus supplement.
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global certificates. Those certificates will be deposited
with a depositary that we wouldwill identify in a prospectus supplement. We will
describe the specific terms of the depositary arrangement relating to a series
of debt securities in the prospectus supplement (Section 204 of the indentures).
Unless we otherwise specify in a prospectus supplement, we anticipate that
the following provisions will apply to our depositary arrangements:
U.S. BOOK-ENTRY SECURITIES. Debt securities of a series represented by a
definitive global registered security and deposited with or on behalf of a
depositary in the United States will be registered in the name of the depositary
or its nominee. These securities are referred to as "book- entry securities".
When a global security is issued and deposited with the depositary, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts represented by that global security to the accounts
of institutions that have accounts with the depositary. Institutions that have
accounts with the depositary are referred to perform;
(c) immediately after giving effectas "participants".
The accounts to be credited shall be designated by the underwriters or
agents for the sale of such transaction,book-entry securities or by us, if we offer and sell
those securities directly.
Ownership of book-entry securities is limited to participants or persons
that may hold interests through participants. In addition, ownership of these
securities will be evidenced only by, and the transfer of that ownership will be
effected only through, records maintained by the depositary or by participants
or persons that hold through other participants.
So long as the depositary, or its nominee, is the registered owner of a
global security, that depositary or nominee will be considered the sole owner or
holder of the book-entry securities represented by the global security for all
purposes under the indenture. Payments of principal, interest and premium on
those securities will be made to the depositary or its nominee as the registered
owner or the holder of the global security.
Owners of book-entry securities:
- will not be entitled to have the debt securities registered in their
names;
- will not be entitled to receive physical delivery of the debt securities
in definitive form; and
- will not be considered the owners or holders of those debt securities
under the indenture.
SPECIAL SITUATION WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described below, the global security will terminate and
interests in it will be exchanged for physical certificates representing those
interests. After that exchange, the choice of whether to hold securities
directly or in street name will be up to the investor. Investors must consult
their own bank or brokers to find out how to have their interests in securities
transferred to their own name, so that they will be direct holders. We have
described the rights of holders and street name investors below.
The global security will terminate when the following special situations
occur:
- If the depositary notifies us that it is unwilling, unable or no Eventlonger
qualified to continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90 days.
7
- If we notify the trustee that we wish to terminate that global security;
or
- If an event of default has occurred with regard to debt securities
represented by that global security and has not been cured or waived. We
discuss defaults later under "Event of Default, Notice and noWaiver".
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the particular series of
securities covered by the prospectus supplement. When a global security
terminates, the depositary--and not we or the trustee--is responsible for
deciding the names of the institutions that will be the initial direct holders.
(Section 204(c)(iii) and (iv) of the indentures).
We expect that the depositary for book-entry securities of a series will
immediately credit participants' accounts with payments received by the
depositary or nominee in amounts proportionate to the participants' beneficial
interests as shown on the records of such depositary.
We also expect that payments by participants to owners of beneficial
interests in a global security held through the participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name". The payments by participants to the owners of beneficial
interests will be the responsibility of those participants.
SATISFACTION AND DISCHARGE; DEFEASANCE
We may be discharged from our obligations on the debt securities of any
series that have matured or will mature or be redeemed within one year if we
deposit with the trustee enough cash to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the debt
securities. (Section 401 of the indentures)
Each indenture contains a provision that permits us to elect:
1. to be discharged from all of our obligations (subject to limited
exceptions) with respect to any series of debt securities then outstanding;
and/or
2. to be released from our obligations under the following covenants and
from the consequences of an event which, after noticeof default or lapsecross-default resulting from
a breach of time these covenants:
a. the limitations on mergers, consolidations and certain sales of
assets,
b. with respect to the senior indenture, the limitations on sale and
leaseback transactions, and
c. with respect to the senior indenture, the limitations on liens to
secure debt.
To make either of the above elections, we must deposit in trust with the
trustee enough money to pay in full the principal, interest and premium on the
debt securities. This amount may be made in cash and/or both, would
become an EventU.S. government
obligations, if the debt securities are denominated in U.S. dollars. This amount
may be made in cash and/or foreign government securities if the debt securities
are denominated in a foreign currency. As a condition to either of Default, will occur and be continuing; and
(d)the above
elections, we must deliver to the trustee an officers' certificate and an opinion of counsel each stating that the consolidation, merger, conveyance or
transfer and the supplemental indenture comply with these provisions.
The successor corporation will assume all our obligations under the
indenture as if it were an original party to the indenture. After assuming
such obligations, the successor corporation will have all our rights and
powers under the indenture. (Sections 801 & 802)
Modification of indentures
Under the indenture our rights and obligations and the rights of the
holders may be modified if the holders
of the debt securities will not less thanrecognize income, gain or loss for Federal
income tax purposes as a majorityresult of the action. (Section 403 of the indentures)
If either of the above events occur, the holders of the debt securities of
the series will not be entitled to the benefits of the indentures, except for
registration of transfer and exchange of debt securities and replacement of
lost, stolen or mutilated debt securities. (Sections 401 and 403 of the
indentures)
8
EVENTS OF DEFAULT, NOTICE AND WAIVER
If a specified event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in
aggregate principal amount of the
outstanding debt securities of eachthe series affected bymay declare the modification consent to it. No modificationentire principal amount of all the
debt securities of that series (or, if the debt securities are original issue
discount securities, such portion of the principal or interest payment terms, and no modification reducing the
percentage required for modifications, is effective against any holder
without its consent. (Sections 901 & 902.)
Events of Default
When we use the term "Event of Default"as may be described in the
applicable prospectus supplement) to be due and payable immediately.
The declaration may be annulled and past defaults may be waived by the
holders of a majority of the principal amount of the debt securities of that
series if we satisfy certain conditions. However, payment defaults that are not
cured may only be waived by all holders of the debt securities. (Sections 502,
513 and 902 of the indentures)
Each indenture here are
some examplesdefines an event of what we mean.
An Eventdefault in connection with any series of
Default occurs if:
odebt securities as one or more of the following events:
- we fail to pay the principal of or any premium on any Debt Securitysuch debt security when
due;
o- we fail to deposit any sinking fund payment on such series when due;
o- we fail to pay interest when due on any Debt Securitysuch series for 30 days;
odays after it is
due;
- we fail to perform any other covenant in the indenture related to the debt
securities of the series and this failure continues for 90 days after we
receive written notice of it;
oit (this provision is only applicable to senior
debt securities);
- we or a court take certain actions relating to the bankruptcy, insolvency
or reorganization of our company:
Thecompany; and
- any other event of default provided in a supplemental indenture or board
resolution under which a series of securities is issued or in the form of
security for a particular
seriesthat security.
(Section 501 of debt securities may include additional Events of Default or
changes to the Events of Default described above.indentures)
For the Eventsevents of Defaultdefault applicable to a particular series of debt
securities, see the prospectus supplement relating to such series. A default
under our other indebtedness will not be a default under the indenture,indentures, and a
default under one series of debt securities will not necessarily be a default
under another series.
The Trustee may withhold noticeEach indenture requires the trustee to give the holders of debt securities of any
default (except in the payment of principal or interest) if it considers
such withholding of notice to be in the best interests of the holders.
(Section 602.)
If an Event of Default for anya series of debt
securities occurs and
continues,notice of a default for that series within 90 days unless the Trusteedefault
is cured or waived. However, the holderstrustee may withhold this notice if it
determines in good faith that it is in the interest of at least 25%those holders. The
trustee may not, however, withhold this notice in aggregate
principal amountthe case of a payment default.
(Section 602 of the debt securities of the series may require us to
repay immediately:
o the entire principal of the debt securities of such series; or
o if the debt securities are discounted securities, such portion of the
principal as may be described in the applicable prospectus supplement.
Subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of the affected series
can rescind this accelerated payment requirement. (Section 502.)indentures)
Other than its duties in case of a default, the Trusteea trustee is not obligated to
exercise any of its rights or powers under theeither indenture at the request order or
direction of any of the holders of debt securities, unless the holders offerhave
offered to the Trusteetrustee reasonable indemnity.indemnification. (Section 603.)603 of the
indentures)
If they provide this
reasonable indemnity,such indemnification is provided, the holders of a majority in principal
amount of outstanding debt securities of any series of debt securities may, subject to certain
limitations, direct the time, method and place of conducting any proceeding orfor
any remedy available to the Trustee,trustee, or exercising any trust or other power
conferred on the trustee. (Section 512 of the indentures)
Each indenture includes a covenant that we will deliver within 120 days
after the end of each fiscal year to the trustee a certificate of no default, or
specifying the nature and status of any default that exists. (Section 1004 of
the indentures)
Street name and other indirect holders should consult their banks and
brokers for information on their requirements for giving notice or taking other
actions upon a default.
9
MODIFICATION OF THE INDENTURES
Together with the Trustee,trustee, we may, when authorized by our board of directors
modify the indentures without the consent of the holders for limited purposes,
including, but not limited to, adding to our covenants or events of default,
establishing forms or terms of debt securities, and curing ambiguities.
(Section 901 of the indentures)
Together with the trustee, we may, when authorized by our board of directors
also make modifications and amendments to each indenture with the consent of the
holders of a majority in principal amount of the outstanding debt securities of
all affected series. However, without the consent of each affected holder, no
modification may:
- change the stated maturity of any debt security;
- reduce the principal, premium (if any), rate of interest or change the
method of computing the amount of principal or interest on any debt
security;
- change any place of payment or the currency in which any debt security or
any premium or interest thereon is payable;
- impair the right to enforce any payment after the stated maturity or
redemption date;
- reduce the percentage of holders of outstanding debt securities of any
series required to consent to any modification, amendment or waiver under
the indentures;
- modify the provisions in the indentures relating to the waiver of past
defaults and the waiver of certain covenants; or
- modify the provisions in the indentures relating to adding provisions or
changing or eliminating provisions of the indenture or modifying rights of
holders of securities under the indenture.
(Section 902 of the indentures)
NOTICES TO HOLDERS
Notice shall be given to holders of securities by mail to the addresses of
the holders as they appear in the Security Register. (Section 106 of the
indentures)
TITLE
We, the trustee, and any agent of ours or the trustee may treat the
registered owner of any registered security as the absolute owner of that
security for all purposes. (Section 308 of the indentures)
REPLACEMENT OF SECURITIES
We will replace debt securities that have been mutilated, but you will have
to pay for the replacement and will have to surrender the mutilated debt
security to the trustee first. Debt securities that become destroyed, stolen, or
lost will only be replaced by us upon your providing evidence of destruction,
loss, or theft that the trustee and we find satisfactory. In the case of a
destroyed, lost, or stolen debt security, we may also require you, as the holder
of the debt security, to indemnify the trustee and us before we will issue any
replacement debt security. (Section 306 of the indentures)
GOVERNING LAW
The indentures and the debt securities will be governed by, and construed
under, the laws of the State of New York.
10
OUR RELATIONSHIP WITH THE TRUSTEE
We may from time to time maintain lines of credit, and have other customary
banking relationships, with the trustee under the senior indenture or the
trustee under the subordinated indenture.
COVENANT
LIMITATION ON MERGER, CONSOLIDATION AND TRANSFERS OR CONVEYANCES OF
ASSETS. The following covenant is applicable to both our senior debt securities
and our subordinated debt securities. (Section 512.)
Certain Restrictive Covenants
We have agreed to certain restrictions on our activities formay not, without the benefitconsent of the
holders of the debt securities.securities, merge into or consolidate with any other
corporation, or convey or transfer all or substantially all of our properties
and assets to another person unless:
- the successor is a U.S. corporation;
- the successor assumes on the same terms and conditions all the obligations
under the debt securities and the indentures; and
- immediately after giving effect to the transaction, there is no default
under the applicable indenture.
(Section 801 of the indentures)
The remaining or acquiring corporation will take over all of our rights and
obligations under the indentures. (Section 802 of the indentures)
2. SENIOR DEBT SECURITIES
The senior debt securities will be unsecured and will rank equally with all
of our other unsecured and non-subordinated debt.
COVENANTS
The restrictive covenants summarized below will apply (unless waived or
amended) so long as any of the senior debt securities are outstanding, unless
the prospectus supplement states otherwise. We have provided a Glossary at the end of this prospectus
to definethese
covenants definitions of the capitalized words used in discussing the covenants.
In the
covenants, all references to us mean Bristol-Myers Squibb Company only.
Limitation on Liens.LIMITATION ON LIENS
We have agreed not to create, assume or suffer to exist, any mortgages or
other liens upon any Restricted Property to secure any of our Debt or Debt of
any Subsidiary or any other person, or permit any Subsidiary to do so, without
securing the senior debt securities equally and ratably with all other
indebtedness secured by such lien. This covenant has certain exceptions, which
generally permit:
(a)- mortgages and liens existing on Restricted Property of corporations
existingproperty owned by or leased by persons at
the time they become Subsidiaries;
(b)- mortgages and liens existing on Restricted Property existingproperty at the time the property was
acquired by us or a Subsidiary, or incurred at, or prior to, the time of
acquisition or construction or within 12 months thereafter to finance the
purchase price, construction, alteration, repair or improvement thereof;
(c)thereof
and any lien to the extent that it secures Debt which is in excess of such
cost or purchase price and for the payment of which recourse may be had
only against such Restricted Property;
- any mortgages and liens securing Debt of a Subsidiary that the subsidiarySubsidiary
owes to us or another Subsidiary;
(d)11
- any mortgages and liens securing industrial development, pollution
control, or similar revenue bonds;
- with respect to any series of securities, any lien existing on the date of
issuance of such securities;
- any extension, renewal or replacement (or successive extensions, renewals
or replacements) in whole or in part of any Lien referred to above, so
long as the principal amount of Debt so secured at the time of such
extension, renewal or replacement (except that, where an additional
principal amount of Debt is incurred to provide funds for the completion
of a specific project, the additional principal amount, and (e)any related
financing costs, may be secured by the Lien as well) and the Lien is
limited to the same property subject to the Lien so extended, renewed or
replaced (and any improvements on such property); and
- mortgages and liens otherwise prohibited by this covenant, securing Debt
which, together with the aggregate outstanding principal amount of all
other Debt of the Companyus and itsour Subsidiaries owning Restricted Property which
would otherwise be subject to such covenant and the aggregate Value of
certain existing Sale and Leaseback Transactions which would be subject to
the covenant on "Sale and Leaseback Transactions" but for this provision,
does not exceed 10% of Consolidated Net Tangible Assets. (Section 1006.)
Limitation on Sale and Leaseback Transactions.1006 of
the senior indenture)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
Neither we nor any Subsidiary owning Restricted Property may enter into any
Sale and Leaseback Transaction covering Restricted Property unless we or such Subsidiary could incur Debt, in
a principal amount at least equal to the Value of such Sale and Leaseback
Transaction, and, without violating the "Limitation on Liens" covenant, secure such Debtwhich is secured by liens on the facilitiesproperty to be leased without
equally and ratably securing the outstanding senior debt securities.securities without
violating the "Limitation on Liens" covenant discussed above. We, or any such
Subsidiary, may also enter into a Sale and Leaseback Transaction if, during the
six months following the effective date of such Sale and Leaseback Transaction,
we apply an amount equal to the Value of such Sale and Leaseback Transaction to
the acquisition of Restricted Property or to the voluntary retirement of debt
securities or Funded Debt. We will receive a credit toward the amount required
to be applied to such acquisition of property or retirement of indebtedness for the principal amount of any
debt securities or Funded Debt delivered to the Trustee for retirement and cancelationor
cancellation during the six months immediately following the effective date of
such Sale and Leaseback Transaction. (Section 1007.)
General. Because1007 of the senior indenture)
GENERAL
The covenants described above cover only restrict our ability to place liens on,
or enter into Sale and Leaseback Transactions in respect of, those manufacturing
facilities in the continental United States which individually constitute 2% or more of our
Consolidated Net Tangible Assets and which our board of directors believes are
of material importance to our business. We do not currently have any domestic
manufacturing facilities that meet this 2% test. As a result, these covenants do
not currently restrict our activitiesus from securing indebtedness with respect to approximately 37% of the net
book value of our facilities worldwide.
We do not have any mortgages or liens prohibited by the covenants
described above on any of our properties that would qualify as Restricted
Property, nor have we enteredphysical
facilities or from entering into any prohibited Sale and Leaseback Transactions covering such properties. We do not keep records identifying
whichwith respect to
any of our properties,physical facilities, and if we did so, we would not be required to
similarly secure any would qualify as Restricted Property.senior debt securities issued under the indenture. We will
amend this prospectus to disclose or disclose in the prospectus supplement the
existence of any mortgage or lien on or any Sale and Leaseback Transaction
covering any Restricted Property which would require us to secure the debt
securities or apply certain amounts to retirement of indebtedness or
acquisitions of property.
Other than the restrictions on liens and Sale and Leaseback Transactions
described above, the indenture and the debt securities do not contain any
covenants or other provisions designed to protect holders of the debt securities
in the event of a highly leveraged transaction involving the Company.
Payment and Transfer
We will pay principal, interest and any premium on fully registered
securities at the place or places designated by us for such purposes. We
will make payment to the persons in whose names the debt securities are
registered on the close of business on the day or days specified by us. We
will make debt securities payments in other forms at a place designated by
us and specified in a prospectus supplement. (Sections 301 & 307.)
Holders may transfer or exchange fully registered securities at the
corporate trust office of the Trustee or at any other office or agency
maintained by us for such purposes, without the payment of any service
charge except for any tax or governmental charge. (Section 1002.)
Global Securities
We may issue some or all of the debt securities of a series in the
form of one or more global securities. Global securities will be deposited
with the depository identified in the applicable prospectus supplement. A
global security is a security, typically held by a depository, that
represents the beneficial interests of a number of purchasers of such
security. Unless exchanged in whole or in part for debt securities in
definitive form, a global security may not be transferred except as a
whole:
o to a nominee of the depository for such global security;
o by a nominee of such depository to such depository; or
o to a successor of such depository or a nominee of such successor.12
We may, however, issue notes in certificate form registered in the name of
the noteholders. (Section 204.)
Unless otherwise stated, The Depository Trust Company, New York, New
York ("DTC") will act as depository for each series of global securities.
Beneficial interests in global securities will be shown on, and transfers
of global securities will be effected only through, records maintained by
DTC and its participants.
DTC has provided the following information to us: DTC is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a
member of the United States Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and
a "clearing agency" registered under the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds securities that its participants
("Direct Participants") deposit with DTC. DTC also facilitates the
settlement among Direct Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic
computerized book-entry changes in such Direct Participant's accounts. This
eliminates the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations.
DTC is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., The American Stock Exchange, Inc. and The
National Association of Securities Dealers, Inc. Securities brokers and
dealers, banks, trust companies and others that clear through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"), also have access to DTC's book-entry
system. You can find the rules applicable to DTC and its Direct and
Indirect Participants on file with the SEC.
Principal and interest payments on global securities registered in the
name of DTC's nominee will be made in immediately available funds to DTC's
nominee as the registered owner of the global securities. We and the
Trustee will treat DTC's nominee as the owner of the global securities for
all other purposes as well. Accordingly, we, the Trustee and any paying
agent will have no direct responsibility or liability to pay amounts due on
the global securities to owners of beneficial interests in the global
securities. It is DTC's current practice, upon receipt of any payment of
principal or interest, to credit Direct Participants' accounts on the
payment date according to their respective holdings of beneficial interests
in the global securities as shown on DTC's records. Payments by Direct and
Indirect Participants to owners of beneficial interests in the global
securities will be governed by standing instructions and customary
practices, as is the case with securities held for the account of customers
in bearer form or registered in "street name". Such payments will be the
responsibility of such Direct and Indirect Participants and not of DTC, the
Trustee or us.
Debt securities represented by a global security will be exchangeable
for debt securities in definitive form of like tenor in authorized
denominations only if DTC notifies us that it is unwilling or unable to
continue as Depository or if DTC ceases to be a clearing agency registered
under applicable law and a successor depository is not appointed by us
within 90 days or we, in our discretion, determine not to require all of
the debt securities of a series to be represented by a global security and
notify the Trustee of our decision.
Defeasance
When we use the term defeasance, we mean discharge from some or all of
our obligations under the indenture. If we deposit with the Trustee
sufficient cash or government securities to pay the principal, interest,
any premium and any other sums due to the stated maturity date or a
redemption date of the debt securities of a particular series, then at our
option:
o we will be discharged from our obligations with respect to the debt
securities of such series or
o we will no longer be under any obligation to comply with certain
restrictive covenants under the indenture, and certain Events of
Default will no longer apply to us.
If this happens, the holders of the debt securities of the affected
series will not be entitled to the benefits of the indenture except for
registration of transfer and exchange of debt securities and replacement of
lost, stolen or mutilated debt securities. Such holders may look only to
such deposited funds or obligations for payment.
We must deliver to the Trustee an opinion of counsel to the effect
that the deposit and related defeasance would not cause the holders of the
debt securities to recognize income, gain or loss for Federal income tax
purposes. We must also deliver a ruling to such effect received from or
published by the United States Internal Revenue Service if we are
discharged from our obligations with respect to the debt securities.
(Section 403.)
Concerning the Trustee
The Trustee has loaned money to us in the past and may do so in the
future as a part of its regular business.
PLAN OF DISTRIBUTION
We may sell the offered securities (a) through underwriters or
dealers; (b) through agents; or (c) directly to one or more purchasers.
Sale Through Underwriters
If we use underwriters in the sale, such underwriters will acquire the
debt securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the
time of sale. The obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters will be
obligated to purchase all the securities of the series offered if any of
the securities are purchased. The underwriters may change from time to time
any initial public offering price and any discounts or concessions allowed
or re-allowed or paid to dealers.
Sale Through Agents
We may sell offered securities through agents designated by us. Unless
indicated in the prospectus supplement, the agents have agreed to use their
reasonable best efforts to solicit purchases for the period of their
appointment.
Direct Sales
We also may sell offered securities directly. In this case, no
underwriters or agents would be involved.
General Information
Underwriters, dealers and agents that participate in the distribution
of the offered securities may be underwriters as defined in the Securities
Act of 1933 (the "Act"), and any discounts or commissions received by them
from us and any profit on the resale of
the offered securities by them may be treated as underwriting discounts and
commissions under the Act. We will identify any underwriters or agents, and
describe their compensation, in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities
under the Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make. Underwriters,
dealers and agents may engage in transactions with, or perform services
for, us or our subsidiaries in the ordinary course of their businesses.
LEGAL OPINIONS
John L. McGoldrick, Esq., who is our Senior Vice President, Law and
Strategic Planning and General Counsel, or another of our lawyers, or
Cravath, Swaine & Moore, our outside counsel, will issue an opinion about
the legality of the offered securities for us. Any underwriters will be
advised about other issues relating to any offering by their own legal
counsel.
EXPERTS
The consolidated financial statements and related schedules
incorporated in this prospectus by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1997, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given upon their authority as experts in auditing and
accounting.
GLOSSARYDEFINITIONS
We have summarized below definitions of some of the terms used in the senior
indenture. In the definitions, all references to us"us", "we" or "our" mean
Bristol-Myers Squibb Company only. "Consolidated Net Tangible Assets"(Section 101 of the senior indenture)
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of our assets
after deducting:
(a)- all current liabilities; and
(b)- all goodwill, tradenames,trade names, trademarks, patents, unamortized debt discount
and expense and other like intangible assets,
all as set forth on our most recent consolidated balance sheet and
determined on a consolidated basis in accordance with generally accepted
accounting principles.
In calculating the total amount of our assets, we must subtract applicable
reserves and other properly deductible items. In calculating our current
liabilities, we must exclude the amount of liabilities which are by their terms
extendable or renewable at the option of the obligor to a date more than
12 months after the date as of which the amount is being determined.
"Debt""DEBT" means:
(a)- all obligations represented by notes, bonds, debentures or similar
evidences of indebtedness;
(b)- all indebtedness for borrowed money or for the deferred purchase price of
property or services other than, in the case of any such deferred purchase
price, on normal trade terms; and
(c)- all rental obligations as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting principles,
recorded as capital leases.
"Funded Debt""FUNDED DEBT" means:
(a)- our DebtDebts or Debt of a Subsidiary owning Restricted Property, maturing by
its terms more than one year after its creation,creation; and
(b)- Debt classified as long-term debt under generally accepted accounting
principles.
The definition of Funded Debt only includes Debt incurred by us meeting one
of the above requirements if it ranks at least equally with the senior debt
securities.
"Restricted Property""RESTRICTED PROPERTY" means:
(a)- any manufacturing facility, or portion thereof, owned or leased by us or
any of our Subsidiaries and located within the continental United States
which, in our Board of Directors' opinion, is of material importance to
our business and the business of our Subsidiaries taken as a whole,whole; and
(b)- any shares of capitalcommon stock or indebtedness of any Subsidiary owning any
such manufacturing facility.
In this definition, "manufacturing facility" means property, plant and equipment
used for actual manufacturing and for activities directly related to
manufacturing. The definition excludes sales offices, research facilities and
facilities used only for warehousing, distribution or general administration.
The definition provides that no manufacturing facility, or portion thereof,
shall be deemed of material importance if its gross book value before deducting
accumulated depreciation is less than 2% of Consolidated Net Tangible Assets.
"Sale and Leaseback Transaction""SALE AND LEASEBACK TRANSACTION" means any arrangement pursuant to which we
or any Subsidiary leases any Restricted Property that has been or is to be sold
or transferred by us or the Subsidiary to another person, other than:
(a)- temporary leases for a term, including renewals at the option of the
lessee, of three years or less,
(b)less;
13
- leases between us and a Subsidiary or between Subsidiaries,
(c)Subsidiaries;
- leases executed within 12 months after the latest of the acquisition, the
completion of construction or improvement, or the commencement of
commercial operation, of such Restricted Property,Property; and
(d)- arrangements pursuant to any provision of law with an effect similar to
that under former Section 168(f)(8) of the Internal Revenue Code of 1954.
"Subsidiary""SUBSIDIARY" means a corporation of which we or one or more corporations
meeting this definition owns, directly or indirectly, the majority of the
outstanding voting stock.
"Value""VALUE" means, with respect to a Sale and Leaseback Transaction, an amount
equal to the present value of the lease payments remaining on the date as of
which the amount is being determined, without regard to any renewal or extension
options contained in the lease. To determine such present value, we use a
discount rate equal to the weighted average interest rate on the debt securities
of all series which are outstanding on the effective date of the Sale and
Leaseback Transaction and which have the benefit of the covenant limiting Sale
and Leaseback Transactions.Transactions discussed above.
3. SUBORDINATED DEBT SECURITIES
The subordinated debt securities will be unsecured. The subordinated debt
securities will be subordinate in right of payment to all senior indebtedness.
(Section 1201 of the subordinated indenture)
In addition, claims of our subsidiaries' creditors and preferred
stockholders generally will have priority with respect to the assets and
earnings of the subsidiaries over the claims of our creditors, including holders
of the subordinated debt securities, even though those obligations may not
constitute senior indebtedness. The subordinated debt securities, therefore,
will be effectively subordinated to creditors, including trade creditors, and
preferred stockholders of our subsidiaries.
The subordinated indenture defines "senior indebtedness" to mean the
principal of, premium, if any, and interest on:
- all indebtedness for money borrowed or guaranteed by us other than the
subordinated debt securities, unless the indebtedness expressly states
that it has the same ranks as, or ranks junior to, the subordinated debt
securities; and
- any deferrals, renewals or extensions of any senior indebtedness.
However, the term "senior indebtedness" will not include:
- any of our obligations to our Subsidiaries;
- any liability for Federal, state, local or other taxes owed or owing by
us;
- any accounts payable or other liability to trade creditors, arising in the
ordinary course of business, including guarantees of, or instruments
evidencing, those liabilities;
- any indebtedness, guarantee or obligation of ours which is expressly
subordinate or junior in right of payment in any respect to any other
indebtedness, guarantee or obligation of ours, including any senior
subordinated indebtedness and any subordinated obligations;
- any obligations with respect to any capital stock; or
- any indebtedness incurred in violation of the subordinated indenture.
There is no limitation on our ability to issue additional senior
indebtedness. The senior debt securities constitute senior indebtedness under
the subordinated indenture. The subordinated debt securities will rank equally
with our other subordinated indebtedness.
14
Under the subordinated indenture, no payment may be made on the subordinated
debt securities and no purchase, redemption or retirement of any subordinated
debt securities may be made in the event:
- any senior indebtedness is not paid when due; or
- the maturity of any senior indebtedness is accelerated as a result of a
default, unless the default has been cured or waived and the acceleration
has been rescinded or that senior indebtedness has been paid in full.
(Section 1203 of the subordinated indenture)
We may, however, pay the subordinated debt securities without regard to the
above restriction if the representatives of the holders of the applicable senior
indebtedness approve the payment in writing to us and the trustee.
(Section 1203 of the subordinated indenture)
The representatives of the holders of senior indebtedness may notify us and
the trustee in writing of a default, which can result in the acceleration of
that senior indebtedness' maturity without further notice or the expiration of
any grace periods. In this event, we may not pay the subordinated debt
securities for 179 days after receipt of that notice of such default unless the
person who gave such notice gives written notice to the trustee and to us
terminating the period of non-payment, the senior indebtedness is paid in full
or the default that caused such notice is no longer continuing. If the holders
of senior indebtedness or their representatives have not accelerated the
maturity of the senior indebtedness at the end of the 179 day period, we may
resume payments on the subordinated debt securities. Not more than one such
notice may be given in any consecutive 360-day period, irrespective of the
number of defaults with respect to senior indebtedness during that period.
(Section 1203 of the subordinated indenture)
In the event we pay or distribute our assets to creditors upon a total or
partial liquidation or dissolution of us, or in bankruptcy or reorganization
relating to us or our property, the holders of senior indebtedness will be
entitled to receive payment in full of the senior indebtedness before the
holders of subordinated debt securities are entitled to receive any payment of
either principal or interest. Until the senior indebtedness is paid in full, any
payment or distribution to which holders of subordinated debt securities would
be entitled but for the subordination provisions of the subordinated indenture
will be made to holders of the senior indebtedness. (Section 1202 of the
subordinated indenture)
If a distribution is made to holders of subordinated debt securities that,
due to the subordination provisions, should not have been made to them, those
holders of subordinated debt securities are required to hold it in trust for the
holders of senior indebtedness, and pay it over to them as their interests may
appear. (Section 1205 of the subordinated indenture)
If payment of the subordinated debt securities is accelerated because of an
event of default, either we or the trustee will promptly notify the holders of
senior indebtedness or their representatives of the acceleration. We may not pay
the subordinated debt securities until five business days after the holders of
senior indebtedness or their representatives receive notice of the acceleration.
Thereafter, we may pay the subordinated debt securities only if the
subordination provisions of the subordinated indenture otherwise permit payment
at that time. (Section 1204 of the subordinated indenture)
As a result of the subordination provisions contained in the subordinated
indenture, in the event of insolvency, our creditors who are holders of senior
indebtedness may recover more, ratably, than the holders of subordinated debt
securities. In addition, our creditors who are not holders of senior
indebtedness may recover less, ratably, than holders of senior indebtedness and
may recover more, ratably, than the holders of subordinated indebtedness. It is
important to keep this in mind if you decide to hold our subordinated debt
securities.
15
DESCRIPTION OF THE PREFERRED STOCK
The following is a description of general terms and provisions of our
preferred stock. The particular terms of any series of preferred stock will be
described in the applicable prospectus supplement.
All the terms of the preferred stock are, or will be, contained in our
Certificate of Incorporation and the certificate of designation relating to each
series of the preferred stock, which will be filed with the SEC at or before the
time we issue a series of the preferred stock.
We are authorized to issue up to 10,000,000 shares of preferred stock, par
value $1.00 per share. As of April 30, 2001, 9,702 shares of $2 convertible
preferred stock, liquidation preference $50 per share, were outstanding. Our $2
convertible preferred stock is listed on the New York Stock Exchange and the
Pacific Exchange, Inc., under the symbol "BMYPR". Subject to limitations
prescribed by law, the board of directors is authorized at any time to:
- issue one or more series of preferred stock;
- determine the designation for any series by number, letter or title that
shall distinguish the series from any other series of preferred stock; and
- determine the number of shares in any series.
The board of directors is authorized to determine, for each series of
preferred stock, and the prospectus supplement will set forth with respect to
the series the following information:
- whether dividends on that series of preferred stock will be cumulative
and, if so, from which date;
- the dividend rate;
- the dividend payment date or dates;
- the liquidation preference per share of that series of preferred stock, if
any;
- any conversion provisions applicable to that series of preferred stock;
- any redemption or sinking fund provisions applicable to that series of
preferred stock;
- the voting rights of that series of preferred stock, if any; and
- the terms of any other preferences or special rights applicable to that
series of preferred stock.
The preferred stock, when issued, will be fully paid and nonassessable.
DIVIDENDS
Holders of preferred stock will be entitled to receive, when, as and if
declared by our board of directors, cash dividends at the rates and on the dates
as set forth in the applicable certificate of designation. Generally, no
dividends will be declared or paid on any series of preferred stock unless full
dividends for all series of preferred stock, including any cumulative dividends
still owing, have been or contemporaneously are declared and paid. When those
dividends are not paid in full, dividends will be declared pro-rata so that the
amount of dividends declared per share on each series of preferred stock will
bear to each other series the same ratio that accrued dividends per share for
each respective series of preferred stock bear to aggregate accrued dividends
for all outstanding shares of preferred stock. In addition, generally, unless
all dividends on the preferred stock have been paid, no dividends will be
declared or paid on the common stock and we may not redeem or purchase any
common stock.
Payment of dividends on any series of preferred stock may be restricted by
loan agreements, indentures and other transactions we may enter into.
16
CONVERTIBILITY
No series of preferred stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the applicable certificate
of designation.
REDEMPTION AND SINKING FUND
No series of preferred stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the applicable certificate of designation.
Shares of preferred stock that we redeem or otherwise reacquire will resume
the status of authorized and unissued shares of preferred stock undesignated as
to series, and will be available for subsequent issuance. There are no
restrictions on repurchase or redemption of the preferred stock while there is
any arrearage on sinking fund installments except as may be set forth in the
applicable certificate of designation.
LIQUIDATION
In the event we voluntarily or involuntarily liquidate, dissolve or wind up
our affairs, the holders of each series of preferred stock will be entitled to
receive the liquidation preference per share specified in the prospectus
supplement, plus any accrued and unpaid dividends. Holders of preferred stock
will be entitled to receive these amounts before any distribution is made to the
holders of common stock.
If the amounts payable to preferred stockholders are not paid in full, the
holders of preferred stock will share ratably in any distribution of assets
based upon the aggregate liquidation preference for all outstanding shares for
each series. After the holders of shares of preferred stock are paid in full,
they will have no right or claim to any of our remaining assets.
Neither the par value nor the liquidation preference is indicative of the
price at which the preferred stock will actually trade on or after the date of
issuance.
VOTING
The holders of preferred stock will not be entitled to vote with the holders
of common stock in the election of directors, except as provided in the
certificate of designation with respect to a particular series. However, if and
whenever accrued dividends on the preferred stock have not been paid or declared
and a sum sufficient for the payment thereof set aside, in an amount equivalent
to six quarterly dividends on all shares of all series of preferred stock at the
time outstanding, then the holders of the preferred stock, voting separately as
a class, will be entitled to elect two directors at the next annual or special
meeting of the stockholders. During the time the holders of preferred stock are
entitled to elect two additional directors, they are not entitled to vote with
the holders of common stock in the election of any other directors. If all
accumulated dividends on preferred stock have been paid in full, the holders of
shares of preferred stock will no longer have the right to vote on directors
except as provided for in the applicable certificate of designation, the term of
office of each director so elected will terminate, and the number of our
directors will, without further action, be reduced accordingly.
The vote of the holders of at least two-thirds of the outstanding shares of
preferred stock voting only as a class is required to authorize any amendment to
our Certificate of Incorporation or bylaws which would materially alter any
existing provisions of the preferred stock or which would authorize a class of
preferred stock ranking prior to the outstanding preferred stock as to dividends
or assets. In addition, the vote of the holders of at least a majority of the
outstanding shares of preferred stock voting together as a class is required to
authorize any amendment to our Certificate of Incorporation authorizing the
issuance of or any increase in the authorized amount of any class of preferred
stock ranking on a parity with or increasing the number of authorized shares of
preferred stock.
17
NO OTHER RIGHTS
The shares of a series of preferred stock will not have any preemptive
rights, preferences, voting powers or relative, participating, optional or other
special rights except as set forth above or in the prospectus supplement, the
Certificate of Incorporation or certificate of designation or as otherwise
required by law.
TRANSFER AGENT AND REGISTRAR
We will designate the transfer agent for each series of preferred stock in
the prospectus supplement.
DESCRIPTION OF THE DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of preferred stock,
rather than full shares of preferred stock. If we do, we will issue receipts for
depositary shares, and each of these depositary shares will represent a fraction
of a share of a particular series of preferred stock. Each owner of a depositary
share will be entitled, in proportion to the applicable fractional interest in
shares of preferred stock underlying that depositary share, to all rights and
preferences of the preferred stock underlying that depositary share. Those
rights include dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares will be
deposited with a depositary under a deposit agreement between us, the depositary
and the holders of the depositary receipts evidencing the depositary shares. The
depositary will be a bank or trust company selected by us. The depositary will
also act as the transfer agent, registrar and dividend disbursing agent for the
depositary shares.
Holders of depositary receipts agree to be bound by the deposit agreement,
which requires holders to take certain actions such as filing proof of residence
and paying certain charges.
The following is a summary of the most important terms of the depositary
shares. The deposit agreement, our Certificate of Incorporation and the
certificate of designation for the applicable series of preferred stock that
are, or will be, filed with the SEC will set forth all of the terms relating to
the depositary shares.
DIVIDENDS
The depositary will distribute all cash dividends or other cash
distributions received relating to the series of preferred stock underlying the
depositary shares, to the record holders of depositary receipts in proportion to
the number of depositary shares owned by those holders on the relevant record
date. The record date for the depositary shares will be the same date as the
record date for the preferred stock.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
that are entitled to receive the distribution. However, if the depositary
determines that it is not feasible to make the distribution, the depositary may,
with our approval, adopt another method for the distribution. The method may
include selling the property and distributing the net proceeds to the holders.
LIQUIDATION PREFERENCE
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of each depositary share will be entitled to receive the
fraction of the liquidation preference accorded each share of the applicable
series of preferred stock, as set forth in the applicable prospectus supplement.
18
REDEMPTION
If a series of preferred stock underlying the depositary shares is subject
to redemption, the depositary shares will be redeemed from the proceeds received
by the depositary resulting from the redemption, in whole or in part, of
preferred stock held by the depositary. Whenever we redeem any preferred stock
held by the depositary, the depositary will redeem, as of the same redemption
date, the number of depositary shares representing the preferred stock so
redeemed. The depositary will mail the notice of redemption to the record
holders of the depositary receipts promptly upon receiving the notice from us
and not less than 35 nor more than 60 days prior to the date fixed for
redemption of the preferred stock and the depositary shares. The redemption
price per depositary share will be equal to the applicable fraction of the
redemption price payable per share for the applicable series of preferred stock.
If fewer than all the depositary shares are redeemed, the depositary shares will
be selected by lot or ratably as the depositary will decide.
VOTING
Upon receipt of notice of any meeting at which the holders of preferred
stock are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts
representing the preferred stock. Each record holder of those depositary
receipts on the record date will be entitled to instruct the depositary as to
the exercise of the voting rights pertaining to the amount of preferred stock
underlying that holder's depositary shares. The record date for the depositary
shares will be the same date as the record date for the preferred stock. The
depositary will try, as far as practicable, to vote the preferred stock
underlying the depositary shares in a manner consistent with the instructions of
the holders of the depositary receipts. We will agree to take all action which
may be deemed necessary by the depositary in order to enable the depositary to
do so. The depositary will not vote the preferred stock to the extent that it
does not receive specific instructions from the holders of depositary receipts.
WITHDRAWAL OF PREFERRED STOCK
Owners of depositary shares are entitled, upon surrender of depositary
receipts at the principal office of the depositary and payment of any unpaid
amount due the depositary, to receive the number of whole shares of preferred
stock underlying the depositary shares. Partial shares of preferred stock will
not be issued. These holders of preferred stock will not be entitled to deposit
the shares under the deposit agreement or to receive depositary receipts
evidencing depositary shares for the preferred stock.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended at any time and from time to
time by agreement between us and the depositary. However, any amendment which
materially and adversely alters the rights of the holders of depositary shares,
other than any change in fees, will not be effective unless the amendment has
been approved by at least a majority of the depositary shares then outstanding.
The deposit agreement automatically terminates if:
- all outstanding depositary shares have been redeemed; or
- there has been a final distribution relating to the preferred stock in
connection with our dissolution, and that distribution has been made to
all the holders of depositary shares.
19
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will also pay
charges of the depositary in connection with the initial deposit of the
preferred stock and the initial issuance of the depositary shares, any
redemption of the preferred stock and all withdrawals of preferred stock by
owners of depositary shares. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and certain other charges as
provided in the deposit agreement. In certain circumstances, the depositary may
refuse to transfer depositary shares, withhold dividends and distributions, and
sell the depositary shares evidenced by the depositary receipt, if the charges
are not paid.
REPORTS TO HOLDERS
The depositary will forward to the holders of depositary receipts all
reports and communications we deliver to the depositary that we are required to
furnish to the holders of the preferred stock. In addition, the depositary will
make available for inspection by holders of depositary receipts at the principal
office of the depositary--and at other places as it thinks is advisable--any
reports and communications we deliver to the depositary as the holder of
preferred stock.
LIABILITY AND LEGAL PROCEEDINGS
Neither we nor the depositary will be liable if either of us is prevented or
delayed by law or any circumstance beyond our control in performing our
obligations under the deposit agreement. Our obligations and those of the
depositary will be limited to performance in good faith of our duties under the
deposit agreement. Neither we nor the depositary will be obligated to prosecute
or defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. We and the depositary may rely
on written advice of counsel or accountants, on information provided by holders
of depositary receipts or other persons believed in good faith to be competent
to give such information and on documents believed to be genuine and to have
been signed or presented by the proper persons.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering a notice to us of its
election to do so. We may also remove the depositary at any time. Any such
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. The successor depositary must
be appointed within 60 days after delivery of the notice for resignation or
removal. In addition, the successor depositary must be a bank or trust company
having its principal office in the United States of America and must have a
combined capital and surplus of at least $150,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the depositary shares will be treated for Federal income tax
purposes as if they were owners of the preferred stock underlying the depositary
shares. Accordingly, the owners will be entitled to take into account for
Federal income tax purposes income and deductions to which they would be
entitled if they were holders of the preferred stock. In addition:
- no gain or loss will be recognized for Federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares;
- the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged; and
- the holding period for preferred stock in the hands of an exchanging owner
of depositary shares will include the period during which the person owned
the depositary shares.
20
DESCRIPTION OF THE COMMON STOCK
As of the date of this prospectus, we are authorized to issue up to
4,500,000,000 shares of common stock, $0.10 par value per share. As of
April 30, 2001, 1,943,469,546 shares of common stock were outstanding. The
common stock is listed on the New York Stock Exchange and the Pacific
Exchange, Inc., under the symbol "BMY".
DIVIDENDS
Holders of common stock are entitled to receive dividends out of any assets
legally available for payment of dividends as may from time to time be declared
by our Board of Directors, subject to the rights of the holders of the preferred
stock.
VOTING
Each holder of common stock is entitled to one vote per share on all matters
requiring a vote of the stockholders, including, without limitation, the
election of directors. The holders of common stock do not have cumulative voting
rights.
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution, or
winding up, the holders of common stock will be entitled to share equally in our
assets available for distribution after payment in full of all debts and after
the holders of preferred stock have received their liquidation preferences in
full.
BOARD OF DIRECTORS
Our bylaws provide that our board of directors shall be divided into three
classes each consisting of an equal, or as nearly equal as possible, number of
directors. Each class will be elected for a three-year term, and the term of
each class will expire in succeeding years. It will, therefore, require
elections in three consecutive years to reelect or to replace our entire board
of directors. At any meeting of our board of directors, a majority of the total
number of the directors constitutes a quorum.
SUPERMAJORITY VOTE FOR BUSINESS COMBINATIONS
Our Certificate of Incorporation also provides that a number of business
combinations must be approved by an affirmative vote of the holders of 75% of
the then-outstanding shares of our capital stock entitled to vote generally in
the election of directors, voting together as a single class. A vote of approval
is required for any of the following business combinations to which an
interested stockholder beneficially owning more than ten percent of the voting
stock or any of its affiliates is a party:
- mergers or consolidations;
- sales, leases, exchanges, mortgages, pledges, transfers or other
dispositions of property in excess of $25,000,000 aggregate fair market
value;
- any issuance or transfer of securities of us or one of our subsidiaries
having an aggregate fair market value of $25,000,000 or more;
- any plan or proposal for liquidation or dissolution; and
- reclassifications of securities or recapitalization of the Company.
The 75% vote of approval is not required if:
- the business combination is approved by a majority of directors not
affiliated with any interested stockholder;
- or the consideration received for their interest in the Company reflects a
fair value for their interest in the Company, which is determined by a
formula described in the certificate of incorporation; and
- certain other requirements are met, including maintenance of dividends
during the business combination and the furnishing of information about
the business combination to our stockholders.
MISCELLANEOUS
Shares of common stock are not redeemable and have no subscription,
conversion or preemptive rights.
21
DESCRIPTION OF THE WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock
or common stock. Warrants may be issued independently or together with our debt
securities, preferred stock or common stock and may be attached to or separate
from any offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a bank or trust
company, as warrant agent. The warrant agent will act solely as our agent in
connection with the warrants and will not have any obligation or relationship of
agency or trust for or with any holders or beneficial owners of warrants. A copy
of the warrant agreement will be filed with the SEC in connection with any
offering of warrants.
The prospectus supplement relating to a particular issue of warrants to
issue debt securities, preferred stock or common stock will describe the terms
of those warrants, including the following:
- the title of the warrants;
- the offering price for the warrants, if any;
- the aggregate number of the warrants;
- the designation and terms of the debt securities, preferred stock or
common stock that may be purchased upon exercise of the warrants;
- if applicable, the designation and terms of the securities that the
warrants are issued with and the number of warrants issued with each
security;
- if applicable, the date from and after which the warrants and any
securities issued with them will be separately transferable;
- the principal amount of debt securities that may be purchased upon
exercise of a warrant and the price at which the debt securities may be
purchased upon exercise;
- the number of shares of preferred stock or common stock that may be
purchased upon exercise of a warrant and the price at which the shares may
be purchased upon exercise;
- the dates on which the right to exercise the warrants will commence and
expire;
- if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
- whether the warrants represented by the warrant certificates or debt
securities that may be issued upon exercise of the warrants will be issued
in registered or bearer form;
- information relating to book-entry procedures, if any;
- the currency or currency units in which the offering price, if any, and
the exercise price are payable;
- if applicable, a discussion of material United States federal income tax
considerations;
- anti-dilution provisions of the warrants, if any;
- redemption or call provisions, if any, applicable to the warrants;
- any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants; and
- any other information we think is important about the warrants.
22
PLAN OF DISTRIBUTION
We may sell the securities:
- through underwriters or dealers;
- through agents; or
- directly to purchasers.
We will describe in a prospectus supplement, the particular terms of the
offering of the securities, including the following:
- the names of any underwriters;
- the purchase price and the proceeds we will receive from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers;
- any securities exchanges on which the securities of the series may be
listed; and
- any other information we think is important.
If we use underwriters in the sale, such underwriters will acquire the
securities for their own account. The underwriters may resell the securities in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
The securities may be either offered to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. The obligations of the underwriters to purchase the securities will
be subject to certain conditions. The underwriters will be obligated to purchase
all the securities of the series offered if any of the securities are purchased.
The underwriters may change from time to time any initial public offering price
and any discounts or concessions allowed or re-allowed or paid to dealers.
We may sell offered securities through agents designated by us. Any agent
involved in the offer or sale of the securities for which this prospectus is
delivered will be named, and any commissions payable by us to that agent will be
set forth, in the prospectus supplement. Unless indicated in the prospectus
supplement, the agents have agreed to use their reasonable best efforts to
solicit purchases for the period of their appointment.
We also may sell offered securities directly. In this case, no underwriters
or agents would be involved.
Underwriters, dealers and agents that participate in the distribution of the
offered securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act. We will identify any underwriters or
agents, and describe their compensation, in a prospectus supplement.
Certain of any such underwriters and agents, including their associates, may
be customers of, engage in transactions with and perform services for us and our
subsidiaries in the ordinary course of business. One or more of our affiliates
may from time to time act as an agent or underwriter in connection with the sale
of the securities to the extent permitted by applicable law. The participation
of any such affiliate in the offer and sale of the securities will comply with
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. regarding the offer and sale of securities of an affiliate.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make. Underwriters, dealers
23
and agents may engage in transactions with, or perform services for, us or our
subsidiaries in the ordinary course of their businesses.
We may authorize agents or underwriters to solicit offers by certain types
of institutions to purchase securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts. These
contracts will provide for payment and delivery on a specified date in the
future. The conditions to these contracts and the commissions payable for
solicitation of such contracts will be set forth in the applicable prospectus
supplement.
In order to facilitate the offering of the securities, any underwriters or
agents, as the case may be, involved in the offering of such securities may
engage in transactions that stabilize, maintain or otherwise affect the price of
such securities or any other securities the prices of which may be used to
determine payments on such securities. Specifically, the underwriters or agents,
as the case may be, may overallot in connection with the offering, creating a
short position in such securities for their own account. In addition, to cover
overallotments or to stabilize the price of such securities or any such other
securities, the underwriters or agents, as the case may be, may bid for, and
purchase, such securities or any such other securities in the open market.
Finally, in any offering of such securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allotted to an
underwriter or a dealer for distributing such securities in the offering if the
syndicate repurchases previously distributed securities in transactions to cover
syndicate short positions, in stabilization transaction or otherwise. Any of
these activities may stabilize or maintain the market price of the securities
above independent market levels. The underwriters or agents, as the case may be,
are not required to engage in these activities, and may end any of these
activities at any time.
Some or all of the securities may be new issues of securities with no
established trading market. Any underwriter to which securities are sold by us
for public offering and sale may make a market in such securities, but will not
be obligated to do so, and may discontinue any market making at any time without
notice. We cannot and will not give any assurances as to the liquidity of the
trading market for any of our securities.
LEGAL OPINION
Cravath, Swaine & Moore, our outside counsel, will issue an opinion about
the legality of the offered securities for us. Any underwriters will be advised
about other issues relating to any offering by their own legal counsel.
EXPERTS
The financial statements incorporated in this prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 2000 have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
With respect to the unaudited financial information of the Company for the
three month periods ended March 31, 2001 and 2000, incorporated by reference in
this prospectus, PricewaterhouseCoopers LLP reported that they have applied
limited procedures in accordance with professional standards for a review of
such information. However, their separate report dated April 25, 2001,
incorporated by reference herein, states that they did not audit and they do not
express an opinion on that unaudited financial information. Accordingly, the
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied.
PricewaterhouseCoopers LLP is not subject to the liability provisions of
Section 11 of the Securities Act of 1933 for their report on the unaudited
financial information because that report is not a "report" or a "part" of the
registration statement prepared or certified by PricewaterhouseCoopers LLP
within the meaning of Sections 7 and 11 of the Act.
24
PART II.II
INFORMATION NOT REQUIRED IN PROSPECTUS
ItemITEM 14. Other ExpensesOTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of Issuance and Distribution.
SEC registration fee................................... $295,000
Fees and expenses, ofother
than underwriting discounts, to be borne by us in connection with the Trustee....................... 20,000*
Printing and engraving expenses........................ 75,000*
Rating agency fees..................................... 125,000*
Accounting fees........................................ 75,000*
Legal fees............................................. 150,000*
Qualification under state securities laws.............. 1,000*
Miscellaneous.......................................... 10,000*
---------
$751,000*
=========offerings
described in this Registration Statement:
Securities and Exchange Commission Registration Fee......... $1,000,000
Trustee's Fees.............................................. 60,000
Printing and Engraving Expenses............................. 100,000
Rating Agency Fees.......................................... 125,000
Accounting Fees and Expenses................................ 75,000
Legal Fees and Expenses..................................... 400,000
Miscellaneous Expenses...................................... 50,000
----------
Total Expenses............................................ $1,810,000
==========
- ----------------------------------
* Estimated and subject to future contingencies.
Itemcontingencies
ITEM 15. Indemnification of Directors and Officers.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) actually and reasonably incurred
in connection with the defense or settlement of such action, and the statute
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted
by a corporation's by-laws, disinterested director vote, stockholder vote,
agreement or otherwise.
Under the terms of our Bylaws and subject to the applicable provisions of
Delaware law, we have indemnified each of our directors and officers and,
subject to the discretion of the Board of Directors, any other person, against
expenses incurred or paid in connection with any claim made against such
director or officer or any actual or threatened action, suit or proceeding in
which such director or officer may be involved by reason of being or having been
a director or officer of us, or of serving or having served at our request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action taken or not
taken by such director or officer in such capacity, and against the amount or
amounts paid by such director or officer in settlement of any such claim,
action, suit or proceeding or any judgment or order entered therein.
Section 102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder, such as the Company,
eliminating or limiting, with certain exceptions, the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. Our Restated Certificate of Incorporation
eliminates the liability of directors to the extent permitted by the DGCL.
II-1
We carry directors' and officers' liability insurance that covers certain
liabilities and expenses of our directors and officers.
ItemITEM 16. Exhibits
1 -- Form of proposed Underwriting Agreement.
4.1 -- Indenture, dated as of June 1, 1993, between Bristol-Myers Squibb
Company and The Chase Manhattan Bank, as trustee (IncorporatedEXHIBITS.
EXHIBIT NO.
- ---------------------
(1)(a) Proposed Form of Underwriting Agreement for debt
securities.**
(1)(b) Proposed Form of Underwriting Agreement for equity
securities.**
(4)(a) Indenture dated as of June 1, 1993, between Bristol-Myers
Squibb Company and The Chase Manhattan Bank (National
Association) as Trustee (incorporated by reference to
Exhibit 4.1 to Form 8-K dated May 27, 1993 and filed on
June 3, 1993).
(4)(b) Form of Subordinated Indenture.*
(4)(c) Form of Senior Debt Security.**
(4)(d) Form of Subordinated Debt Security.**
(4)(e) Form of Certificate of Designation.***
(4)(f) Form of Preferred Stock Certificate.***
(4)(g) Form of Deposit Agreement.***
(4)(h) Form of Depositary Receipt (to be included as an Exhibit to
the Form of Deposit Agreement).***
(4)(i) Form of Warrant Agreement.***
(4)(j) Form of Warrant Certificate.***
(5) Opinion of Bristol-Myers Squibb Legal Counsel (Cravath,
Swaine & Moore).*
(12) Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.*
(15) Letter re: unaudited interim financial information.**
(23)(a) Consent of Independent Accountants.**
(23)(b) Consent of Counsel (included in Exhibit 5).
(24) Powers of Attorney.*
(25)(a) Statement of Eligibility and Qualification on Form T-1 of
The Chase Manhattan Bank to act as Trustee under the Senior
Indenture dated June 1, 1993.*
(25)(b) Statement of Eligibility and Qualification on Form T-1 of
the Subordinated Trustee to act as Trustee under the
Subordinated Indenture.***
- ------------------------
* Previously filed
** Filed herewith
*** To be filed by reference to Exhibit 4.2 to theamendment or on a Form 8-K
dated May 27, 1993 and
filed on June 3, 1993)
5 -- Opinion with consent of Cravath, Swaine & Moore, counsel to the
Company.
12 -- Statement of computation of ratio of earnings to fixed charges.
23.1 -- Consent of Cravath, Swaine & Moore, counsel to the Company
(included in Exhibit 5).
23.2 -- Consent of Price Waterhouse LLP.
24 -- Powers of Attorney.
25 -- Statement of Eligibility of Trustee.
- ---------------
ItemII-2
ITEM 17. Undertakings.
A. Undertaking Pursuant to Rule 415.UNDERTAKINGS.
1. The Companyundersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statementregistration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statementregistration statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs A(l)(i) and A(l)(ii) do not apply if the
Registration Statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the Registration Statement.
registration
statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such posteffectivepost-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange(4) To file an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act Documentsin accordance with the rules and regulations prescribed by
Reference.the Commission under Section 305(b)(2) of the Trust Indenture Act.
2. The Companyundersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'sregistrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration
Statementregistration statement shall be deemed to be a new Registration Statementregistration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Undertaking in Respect of Indemnification.
Insofar3. The undersigned registrant hereby undertakes that, insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Companyregistrant
pursuant to the foregoing provisions described in Item 15 above, or otherwise, the
Companyregistrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such officer, director officer or controlling person of the registrant in connection
with the securities being registered, the Companyregistrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether or not such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The Cityon the 9th day of New York, State of New York, on
April 2, 1998.
BRISTOL-MYERS SQUIBB COMPANY,
By:............*.............
Charles A. Heimbold, Jr.
Chairman of the Board,
Chief Executive Officer and DirectorAugust, 2001.
BRISTOL-MYERS SQUIBB COMPANY
By: /s/ PETER R. DOLAN
-----------------------------------------
Peter R. Dolan
CHIEF EXECUTIVE OFFICER, PRESIDENT,
AND DIRECTOR
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the datedates indicated.
Signature Title DateNAME TITLE DATE
---- ----- ----
........*........... Corporate Staff Senior Vice
------------------------------------------- President April 2, 1998
(Michael F. Mee) and Chief August 9, 2001
Frederick S. Schiff Financial Officer
(principal financial officer)
........*........... Corporate Staff Senior Vice President April 2, 1998
(Frederick S. Schiff) Financial Operations,
------------------------------------------- Chairman and Controller (principal accounting
officer)
........*........... Director April 2, 1998
(Robertof August 9, 2001
Charles A. Heimbold, Jr. the Board
*
------------------------------------------- Director August 9, 2001
Robert E. Allen)
....................Allen
*
------------------------------------------- Director April 2, 1998
(VanceAugust 9, 2001
Lewis B. Campbell
*
------------------------------------------- Director August 9, 2001
Vance D. Coffman)
........Coffman
*...........
------------------------------------------- Director April 2, 1998
(EllenAugust 9, 2001
Ellen V. Futter)
........Futter
*...........
------------------------------------------- Director April 2, 1998
(LouisAugust 9, 2001
Louis V. Gerstner, Jr.)
........
II-4
NAME TITLE DATE
---- ----- ----
*...........
------------------------------------------- Director April 2, 1998August 9, 2001
Laurie H. Glimcher, M.D.)
........*...........
------------------------------------------- Director April 2, 1998
(John D. Macomber)
.................... Executive Vice President and April 2, 1998
(Kenneth E. Weg) President, Worldwide Medicines
Group andAugust 9, 2001
Leif Johansson
*
------------------------------------------- Director ........*........... Director April 2, 1998
(JamesAugust 9, 2001
James D. Robinson III)
........III
*...........
------------------------------------------- Director April 2, 1998
(Andrew C. Sigler)
........*........... Director April 2, 1998
(LouisAugust 9, 2001
Louis W. Sullivan, M.D.)
----------
* The undersigned, by signing her name hereto, does hereby sign this
registration statement or amendment thereto on behalf of each of the
above-indicated directors or officers of Bristol-Myers Squibb Company
pursuant to powers of attorney executed by each such director or
officer.
....../s/ ALICE C. BRENNAN..........
(Alice C. Brennan, Attorney-in-fact)
*By: /s/ SANDRA LEUNG
--------------------------------------
Sandra Leung
ATTORNEY-IN-FACT
II-5
EXHIBIT INDEX
Exhibit
No. Description
1 -- Form of proposed Underwriting Agreement
4.1 -- Indenture, dated as of June 1, 1993, between Bristol-Myers Squibb
Company and The Chase Manhattan Bank, as trustee (Incorporated
EXHIBIT NO.
- ---------------------
(1)(a) Proposed Form of Underwriting Agreement for debt
securities.(**)
(1)(b) Proposed Form of Underwriting Agreement for equity
securities.(**)
(4)(a) Indenture dated as of June 1, 1993, between Bristol-Myers
Squibb Company and The Chase Manhattan Bank (National
Association) as Trustee (incorporated by reference to
Exhibit 4.1 to Form 8-K dated May 27, 1993 and filed on
June 3, 1993).
(4)(b) Form of Subordinated Indenture.(*)
(4)(c) Form of Senior Debt Security.(***)
(4)(d) Form of Subordinated Debt Security.(**)
(4)(e) Form of Certificate of Designation.(***)
(4)(f) Form of Preferred Stock Certificate.(***)
(4)(g) Form of Deposit Agreement.(***)
(4)(h) Form of Depositary Receipt (to be included as an Exhibit to
the Form of Deposit Agreement).(***)
(4)(i) Form of Warrant Agreement.(***)
(4)(j) Form of Warrant Certificate.(***)
(5) Opinion of Bristol-Myers Squibb Legal Counsel (Cravath,
Swaine & Moore).(*)
(12) Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.(*)
(15) Letter re: unaudited interim financial information.(**)
(23)(a) Consent of Independent Accountants.(**)
(23)(b) Consent of Counsel (included in Exhibit 5).
(24) Powers of Attorney.(*)
(25)(a) Statement of Eligibility and Qualification on Form T-1 of
The Chase Manhattan Bank to act as Trustee under the
Senior Indenture dated June 1, 1993.(*)
(25)(b) Statement of Eligibility and Qualification on Form T-1 of
the Subordinated Trustee to act as Trustee under the
Subordinated Indenture.(***)
- ------------------------
(*) Previously filed
(**) Filed herewith
(***) To be filed by reference to Exhibit 4.2 to theamendment or on a Form 8-K
dated May 27, 1993 and
filed on June 3, 1993)
5 -- Opinion with consent of Cravath, Swaine & Moore, counsel to the
Company
12 -- Statement of computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Cravath, Swaine & Moore, counsel to the company
(included in Exhibit 5)
23.2 -- Consent of Price Waterhouse LLP
24 -- Powers of Attorney
25 -- Statement of Eligibility of Trustee
- -----------