Company Name: Bristol-Myers Squibb Co.
Public Availability Date: January 12, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 27, 2006
Direct Dial
(202) 955-8653
Fax No.
(202) 530-9677
VIA HAND DELIVERY
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re: Stockholder Proposal of People for the Ethical Treatment of Animals Exchange
Act of 1934Rule 14a-8
Dear Ladies and Gentlemen:
This letter is to inform you that our client, Bristol-Myers Squibb Company (the
"Company"), intends to omit from its proxy statement and form of proxy for its
2007 Annual Stockholders Meeting (collectively, the "2007 Proxy Materials") a
stockholder proposal and statements in support thereof (the "2007 Proposal")
received from People for the Ethical Treatment of Animals (the "Proponent").
Pursuant to Rule 14a-8(j), we have:
enclosed herewith six (6) copies of this letter and its attachments;
filed this letter with the Securities and Exchange Commission (the
"Commission") no later than eighty (80) calendar days before the Company files
its definitive 2007 Proxy Materials with the Commission; and
concurrently sent copies of this correspondence to the Proponent.
Rule 14a-8(k) provides that stockholder proponents are required to send
companies a copy of any correspondence that the proponents elect to submit to
the Commission or the staff of the Division of Corporation Finance (the
"Staff"). Accordingly, we are taking this opportunity to inform the Proponent
that if the Proponent elects to submit additional correspondence to the
Commission or the Staff with respect to the Submission, a copy of that
correspondence should concurrently be furnished to the undersigned on behalf of
the Company pursuant to Rule 14a-8(k).
BASIS FOR EXCLUSION
We hereby respectfully request that the Staff concur in our view that the 2007
Proposal may be excluded from the 2007 Proxy Materials pursuant to Rule
14a-8(i)(12)(ii) because the 2007 Proposal deals with substantially the same
subject matter as stockholder proposals that were included in the Company's 2005
and 2006 proxy materials, which did not receive the support necessary for
resubmission. As noted below, the Staff recently granted no-action relief under
Rule 14a-8(i)(12)(ii) in an identical situation in Merck & Co., Inc. (avail.
Dec. 15, 2006). Thus, we hereby respectfully request that the Staff concur in
our view that the 2007 Proposal may be excluded from the 2007 Proxy Materials
pursuant to Rule 14a-8(i)(12)(ii).
THE 2007 PROPOSAL
The 2007 Proposal requests that the Company's Board of Directors "issue a report
to shareholders on the feasibility of amending the Company's Animal Testing
Policy to ensure that: i) it extends to all contract laboratories and is
reviewed with such outside laboratories on a regular basis, and ii) it addresses
animals' social and behavioral needs." The 2007 Proposal further requests that
the report "include information on the extent to which in-house and contract
laboratories are adhering to the Policy...." A copy of the 2007 Proposal and
supporting statement, as well as related correspondence from the Proponent, is
attached to this letter as Exhibit A.
ANALYSIS
The 2007 Proposal May Be Excluded Under Rule 14a-8(i)(12)(ii) Because It Deals
With Substantially The Same Subject Matter As Proposals That Were Included In
The Company's Proxy Materials In 2005 And 2006.
Rule 14a-8(i)(12)(ii) permits the exclusion of a stockholder proposal dealing
with "substantially the same subject matter as another proposal or proposals
that previously has or have been included in the company's proxy materials
within the preceding 5 calendar years" and the proposal received "less than 6%
of the vote on its last submission to shareholders if proposed twice previously
within the preceding 5 calendar years...." As noted below, the 2007 Proposal is
substantially similar to stockholder proposals the Company included in its 2005
and 2006 proxy materials that did not receive the support necessary for
resubmission.
In its 2006 proxy materials filed on March 22, 2006, the Company included a
stockholder proposal (the "2006 Proposal") that requested that the Company issue
a report to stockholders "on the feasibility of amending the Company's [animal
testing policy] to ensure:
(a) that it extends to all contract laboratories and that it is reviewed with
such outside laboratories on a regular basis, and
(b) superior standards of care for animals who continue to be used for these
purposes, both by the Company itself and by all independently retained
laboratories, including provisions to ensure that animals' psychological, social
and behavioral needs are met."
A copy of the 2006 Proposal as it appeared in the Company's 2006 proxy materials
is attached hereto as Exhibit B.
In its 2005 proxy materials filed on March 23, 2005, the Company included a
stockholder proposal (the "2005 Proposal") that requested that the Company:
1. Commit specifically to using only non-animal methods for assessing skin
corrosion, irritation, absorption, phototoxicity and pyrogenicity.
2. Confirm that it is in the Company's best interest to commit to replacing
animal-based tests with non-animal methods.
3. Petition the relevant regulatory agencies ... to accept as total replacements
for animal-based methods, those approved non-animal methods described above ....
A copy of the 2005 Proposal as it appeared in the Company's 2005 proxy materials
is attached hereto as Exhibit C. The 2007 Proposal deals with substantially the
same subject matter as the 2005 and 2006 Proposals for purposes of Rule
14a-8(i)(12)(ii) because the subject matter of all the proposals is animal-based
testing by or on behalf of the Company and actions urged to address related
alleged abuses.
The Staff recently addressed a set of proposals in Merck & Co., Inc. (avail.
Dec. 15, 2006) that is identical in all respects to the 2005, 2006, and 2007
Proposals. In Merck, the Staff concurred in the exclusion of a proposal
submitted for inclusion in the company's 2007 proxy materials that is identical
to the 2007 Proposal. The Staff permitted the exclusion of the 2007 Merck
proposal under Rule 14a-8(i)(12)(ii) because Merck had included a substantially
similar proposal, identical to the 2006 Proposal, in its 2006 proxy materials
and had also included a substantially similar proposal, identical to the 2005
Proposal, in its 2005 proxy materials. Consequently, since the 2005, 2006, and
2007 Proposals are the same in all respects as the three proposals in Merck, the
2007 Proposal likewise is excludable under Rule 14a-8(i)(12)(ii).
Additionally, in Abbott Laboratories, the Staff concurred that a proposal,
nearly identical to the 2007 Proposal, submitted to Abbott Laboratories in 2006
was excludable under Rule 14a-8(i)(12)(i) where that company's stockholders had
considered a proposal in 2005 that is nearly identical to the 2005 Proposal. See
Abbott Laboratories (avail. Feb. 28, 2006). The 2005 Abbott Laboratories
proposal, just like 2005 Proposal, requested that the company commit to using
"non-animal methods for assessing skin corrosion, irritation, absorption,
phototoxicity and pyrogenicity;" confirm that it is in the company's best
interest to use non-animal methods; and petition regulatory agencies to accept
non-animal based methods for assessing the above. Just like the 2007 Proposal,
the 2006 proposal submitted to Abbott Laboratories requested a report on the
feasibility of amending the company's policies regarding animal testing to
extend to contract laboratories. Because the subject matter of both Abbott
Laboratories proposals was animal testing, the Staff concurred that the 2006
Abbott Laboratories proposal was excludable under Rule 14a-8(i)(12)(i).
Moreover, in Barr Pharmaceuticals (avail. Sept. 25, 2006) the Staff concurred in
the exclusion of a proposal identical in all respects to the 2007 Proposal but
for the fact that it requested the company to adopt an animal care policy
addressing the company's commitment to "reducing, refining, and replacing its
use of animals" in testing that would include independently retained labs,
whereas the 2007 Proposal requests that the Company amend its current policy to
ensure that it extends to all outside labs. The Staff permitted the exclusion of
the 2006 Barr Pharmaceuticals proposal under Rule 14a-8(i)(12)(i) because the
proposal related to substantially the same subject matter as a proposal included
in Barr Pharmaceuticals' 2005 proxy statement that requested that the company
commit to using "non-animal methods for assessing skin corrosion, irritation,
absorption, phototoxicity and pyrogenicity;" confirm that it is in the company's
best interest to use non-animal methods; and petition regulatory agencies to
accept non-animal based methods for assessing the above.
This precedent confirms that, for purposes of Rule 14a-8(i)(12), the 2005, 2006
and 2007 Proposals concern "substantially the same subject matter," namely,
animal-based testing conducted by or on behalf of the Company and actions urged
to address related alleged abuses. Moreover, as evidenced in Exhibit D, the 2006
Proposal received approximately 5.01% of the vote at the Company's 2006 Annual
Meeting of Stockholders.1 Thus, when the Company's stockholders last voted on a
stockholder proposal substantially similar to the 2007 Proposal, it failed to
meet the 6% threshold. For these reasons, we request that the Staff concur that
the 2007 Proposal is excludable pursuant to Rule 14a-8(i)(12)(ii).
CONCLUSION
Based upon the foregoing analysis, we respectfully request that the Staff concur
that it will take no action if the Company excludes the 2007 Proposal from its
2007 Proxy Materials. We would be happy to provide you with any additional
information and answer any questions that you may have regarding this subject.
In addition, the Company agrees to promptly forward to the Proponent any
response from the Staff to this no-action request that the Staff transmits by
facsimile to the Company only.
If we can be of any further assistance in this matter, please do not hesitate to
call me at (202) 955-8653 or Sandra Leung, the Company's Acting General Counsel,
Vice-President and Secretary, at (212) 546-4260.
Sincerely,
/s/
Amy L. Goodman
Enclosures
cc: Sandra Leung, Bristol-Myers Squibb Company
Susan L. Hall, People for the Ethical Treatment of Animals
-----FOOTNOTES-----
1 The 2006 Proposal received 1,136,502,051 "against" votes and 59,928,595 "for"
votes. Pursuant to the Staff's position on counting votes for purposes of Rule
14a-8(i)(12), abstentions and broker non-votes were not included for purposes of
this calculation. See Staff Legal Bulletin No. 14, Question F.4 (July 13, 2001).
[INQUIRY LETTER]
November 8, 2006
Ms. Sandra Leung
Vice President and Secretary
Bristol-Myers Squibb
345 Park Ave
New York, NY 10154-0037
Re: Shareholder Resolution for Inclusion in the 2007 Proxy Statement
Dear Ms. Leung:
Attached to this letter is a Shareholder Proposal submitted for inclusion in the
proxy statement for the 2007 annual meeting. Also enclosed is a letter from
PETA's brokerage firm, Morgan Stanley, confirming PETA's ownership of the
Company's common stock acquired more than one year ago. PETA has held these
shares continuously for more than one year and intends to hold them through and
including the date of the 2007 annual meeting of shareholders.
Please contact the undersigned if you need any further information. If the
Company will attempt to exclude any portion of this proposal under Rule 14a-8,
please advise me within 14 days of your receipt of this proposal. I can be
reached at 8506 Harvest Oak Drive, Vienna VA 22182. My business telephone number
is (703) 478-5995 and my e-mail address is SusanH@peta.org.
Very truly yours,
Susan L. Hall
Legal Counsel
SLH/pc
Enclosures
[APPENDIX]
ANIMAL WELFARE POLICY
RESOLVED, that the Board issue a report to shareholders on the feasibility of
amending the Company's Animal Testing Policy to ensure that: i) it extends to
all contract laboratories and is reviewed with such outside laboratories on a
regular basis, and ii) it addresses animals' social and behavioral needs.
Further, the shareholders request that the report include information on the
extent to which in-house and contract laboratories are adhering to the Policy,
including the implementation of enrichment measures.
Supporting Statement:
Our Company conducts tests on animals as part of its product research and
development, as well as retaining independent laboratories to conduct such
tests. Abuses in independent laboratories are not uncommon and have recently
been exposed by the media. Bristol-Myers Squibb has posted on its Web site an
Animal Testing Policy. The Company, as an industry leader, is commended for its
stated commitment to "reduce our reliance on animal testing methods and ensure
humane care when animal testing is unavoidable."
1
However, the disclosure of atrocities recorded at Covance, Inc., an independent
laboratory headquartered in Princeton, New Jersey,2 has made the need for a
formalized, publicly available animal welfare policy that extends to all outside
contractors all the more relevant, indeed urgent.3 Filmed footage showed
primates being subjected to such gross physical abuses and psychological
torments that Covance sued to enjoin People for the Ethical Treatment of Animals
in Europe from publicizing it. The Honorable Judge Peter Langan in the United
Kingdom refused to stop PETA from publicizing the film and instead ruled in
PETA's favor. The Judge stated in his opinion that the "rough manner in which
the animals are handled and the bleakness of the surroundings in which they are
kept ... even to a viewer with no particular interest in animal welfare, at
least cry out for explanation."
4
Shareholders cannot monitor what goes on behind the closed doors of the animal
testing laboratories, so the Company must. Accordingly, we urge the Board to
commit to promoting basic animal welfare measures as an integral part of our
Company's corporate stewardship.
We urge shareholders to support this Resolution.
-----FOOTNOTES-----
1 http://www.bms.com/static/ehs/perfor/data/produc.html#animaltest
2 PETA's undercover investigator videotaped the systematic abuse of animals at
Covance's laboratory in Vienna, VA over a six month investigation.
3 In October 2005, Covance's Director of Early Development stated that "We've
worked with just about every major company around the world" (http://www.[Text
Illegible])
4 The case captioned Covance Laboratories Limited v. PETA Europe Limited was
filed in the High Court of Justice, Chancery Division, Leeds District Registry,
Claim No. 5C-00295. In addition to ruling in PETA's favor, the Court ordered
Covance to pay PETA $50,000 in costs and fees.
[INQUIRY LETTER]
January 10, 2007
Direct Dial
(202) 955-8653
Fax No.
(202) 530-9677
VIA HAND DELIVERY
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re: Withdrawal of No-Action Letter Request Regarding the Stockholder Proposal of
People for the Ethical Treatment of Animals; Exchange Act of 1934Rule 14a-8
Ladies and Gentlemen:
In a letter dated December 27, 2006, we requested that the staff of the Division
of Corporation Finance (the "Staff") concur that our client, Bristol-Myers
Squibb Company (the "Company"), could properly exclude from its proxy materials
for its 2007 Annual Stockholders Meeting a stockholder proposal (the "Proposal")
received from People for the Ethical Treatment of Animals (the "Proponent"),
naming Susan L. Hall as its designated representative.
Enclosed is letter from Ms. Hall, the Proponent's representative, to the Company
transmitted on December 31, 2006, stating that the Proponent voluntarily
withdraws the Proposal. See Exhibit A. In reliance on this letter, we hereby
withdraw the December 27, 2006, no-action request relating to the Company's
ability to exclude the Proposal pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934. Please do not hesitate to call me at (202) 955-8653 with
any questions in this regard.
Sincerely,
/s/
Amy L. Goodman
Enclosure
cc: Sandra Leung, Bristol-Myers Squibb Company
Susan L. Hall, People for the Ethical Treatment of Animals
STAFF REPLY LETTER]
January 12, 2007
Amy L. Goodman
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Re: Bristol-Myers Squibb Company
Dear Ms. Goodman:
This is in regard to your letter dated January 10, 2007 concerning the
shareholder proposal submitted by the People for the Ethical Treatment of
Animals for inclusion in Bristol-Myers' proxy materials for its upcoming annual
meeting of security holders. Your letter indicates that the proponent has
withdrawn the proposal, and that Bristol-Myers therefore withdraws its December
27, 2006 request for a no-action letter from the Division. Because the matter is
now moot, we will have no further comment.
Sincerely,
/s/
Ted Yu
Special Counsel
cc: Susan L. Hall
Legal Counsel
People for the Ethical Treatment of Animals
501 Front St.
Norfolk, VA 23510
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