Company Name: Bristol-Myers Squibb Co.
Public Availability Date: February 26, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 27, 2006
Client No. C 11810-00003
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, DC 20549
Re: Stockholder Proposal of Lucian Bebchuck 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 "Proposal") received
from Lucian Bebchuck (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 shareholder 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 this Proposal, a copy of that
correspondence should concurrently be furnished to the undersigned on behalf of
the Company pursuant to Rule 14a-8(k).
THE PROPOSAL
The Proposal would amend the Company's Bylaws to provide:
[A]ny decision of the Board, or any committee thereof, with respect to the
compensation of the Company's Chief Executive Officer shall be valid only if
approved or ratified by at least three-quarters of all of the independent
directors. For purposes of this bylaw, "independent director" shall mean any
director who is not a present or former employee or officer of the Company, and
who satisfies the criteria for qualifying as an "independent" director under the
applicable listing requirements of the New York Stock Exchange. Nothing in this
bylaw shall prohibit the Board of Directors from delegating authority or
responsibility with respect to executive compensation to a committee or
sub-committee of the Board of Directors, provided, however, that any decision of
such committee or subcommittee with respect to compensation of the Company's
Chief Executive Officer shall require the ratification of three-quarters of all
directors meeting the qualifications for independence set forth in this bylaw.
A copy of the Proposal and supporting statement, as well as related
correspondence from the Proponent, is attached to this letter as Exhibit A. We
hereby respectfully request that the Staff concur in our view that the Proposal
may be excluded from the 2007 Proxy Materials pursuant to Rule 14a-8(i)(10)
because the Company has substantially implemented the Proposal.
ANALYSIS
The Proposal Is Excludable Pursuant To Rule 14a-8(i)(10) Because The Company Has
Substantially Implemented The Proposal.
A. Background
Rule 14a-8(i)(10) permits a company to exclude a stockholder proposal if the
company has substantially implemented the proposal. The Commission stated in
1976 that the predecessor to Rule 14a-8(i)(10) "is designed to avoid the
possibility of shareholders having to consider matters which already have been
favorably acted upon by the management." See Proposed Amendments to Rule 14a-8
Under the Securities Exchange Act of 1934 Relating to Proposals by Security
Holders, Exchange Act Release No. 12598 (July 7, 1976). The Commission has
refined Rule 14a-8(i)(10) over the years. In the 1983 amendments to the proxy
rules, the Commission indicated:
In the past, the staff has permitted the exclusion of proposals under Rule
14a-8(c)(10) only in those cases where the action requested by the proposal has
been fully effected. The Commission proposed an interpretative change to permit
the omission of proposals that have been "substantially implemented by the
issuer." While the new interpretative position will add more subjectivity to the
application of the provision, the Commission has determined the previous
formalistic application of this provision defeated its purpose. Amendments to
Rule 14a-8 Under the Securities Exchange Act of 1934 Relating to Proposals by
Security Holders, Exchange Act Release No. 20091, at II.E.6. (August 16, 1983)
(the "1983 Release").
The 1998 amendments to the proxy rules, which (among other things) implemented
the current Rule 14a-8(i)(10), reaffirmed this position. See Amendments to Rules
on Shareholder Proposals, Exchange Act Release No. 40018 at n.30 and
accompanying text (May 21, 1998). Consequently, as noted in the 1983 Release, in
order to be excludable under Rule 14a-8(i)(10), a stockholder proposal need only
be "substantially implemented," not "fully effected." In addressing no-action
requests under Rule 14a-8(i)(10), the staff has indicated that the focus of Rule
14a-8(i)(10) is on whether "particular policies, practices and procedures
compare favorably" with those requested under the proposal, and not on the exact
means of implementation. Texaco, Inc. (avail. Mar. 28, 1991). In other words,
Rule 14a-8(i)(10) permits exclusion of a stockholder proposal when a company has
implemented the essential objective of the proposal, even where the manner by
which a company implements a proposal does not precisely correspond to the
actions sought by a stockholder proponent. See 1983 Release; AMR Corporation
(avail. Apr. 17, 2000); Masco Corp. (avail. Mar. 29, 1999); Erie Indemnity Co.
(avail. Mar. 15, 1999).
B. The Company Has Substantially Implemented The Proposal Because The NYSE
Listing Standards And The Company's Compensation Committee Charter Already
Require Independent Director Approval Of Chief Executive Officer Compensation.
We believe that the Proposal has been substantially implemented by the Company
pursuant to the New York Stock Exchange ("NYSE") Listing Standards, the
Company's Compensation and Management Development Committee Charter and ongoing
practices. In this regard, Commission statements and Staff precedent with
respect to Rule 14a-8(i)(10) confirm that the standard for determining whether a
proposal has been "substantially implemented" is not dependent on the means by
which implementation is achieved. When the Commission initially adopted the
predecessor of Rule 14a-8(i)(10), it specifically determined not to require that
a proposal be implemented "by the actions of management," observing, "it was
brought to the attention of the Commission by several commentators that mootness
can be caused for reasons other than the actions of management, such as
statutory enactments, court decisions, business changes and supervening
corporate events." Adoption of Amendments Relating to Proposals by Security
Holders, Exchange Act Release No. 19771 (November 22, 1976). Staff precedent
supports that a shareholder proposal may implemented by actions beyond those of
management. For example, in Intel Corp. (avail. Feb. 14, 2005), the company had
received a proposal asking that it "establish a policy" of expensing all future
stock options. The company argued that the proposal had been substantially
implemented through FASB's adoption of Statement No. 123(R), requiring the
expensing of stock options. Although the proponent asserted that adoption of the
accounting standard was different than company adoption of a policy as requested
under the proposal, the Staff concurred that the new accounting rule had
substantially implemented the proposal and permitted its exclusion.
In a very similar situation the Staff permitted the exclusion of a proposal as
substantially implemented where the company asserted that it already was
required to implement the shareholder proposal by stock exchange listing
standards and its own Board committee charters. In Siliconix, Inc. (avail. Mar.
1, 2004), the proposal requested that the Board appoint a committee of
independent directors to review all related party transactions. The Company was
required by the rules of the NASDAQ Stock Market and its own Audit Committee
Charter to have an Audit Committee of three independent directors. The company
also was required by the NASDAQ rules and its Audit Committee Charter to have
that Committee vote on all related party transactions. See also Johnson and
Johnson (avail. Feb. 17, 2006) (where the Staff found a proposal requesting the
company identify and discharge undocumented or illegal workers was substantially
implemented by the applicable immigration laws and regulations); AMR Corp.
(avail. Apr. 17, 2000) (where the Staff permitted exclusion of a proposal
requesting certain Board committees be composed entirely of independent
directors where company bylaws required that these committees be composed of
independent directors and all current members complied with the proposal's
definition of independence).
In the instant case, NYSE Listed Company Manual Section 303A.05(a) requires that
each listed company have a compensation committee, composed entirely of
independent directors, and Section 303A.05(b) et seq. require that the
compensation committee have a charter which provides that the compensation
committee alone, or together with the other independent directors, approve CEO
compensation. In compliance with these rules and pursuant to Section 141(c) of
the Delaware Corporation Law, the Board of the Directors of the Company has
adopted the Bristol-Meyers Compensation and Management Development Committee
Charter, attached to this letter as Exhibit B. The Charter provides that the
"Committee shall consist of three or more independent directors of the Company
... [t]he members of the Committee shall meet the independence requirements of
the New York Stock Exchange ...." The Charter further provides that the
committee shall "annually review and approve corporate goals and objectives
relevant to CEO compensation, evaluate the CEO's performance together with the
other independent directors in light of those goals and objectives, and
recommend to the independent directors the CEO's compensation levels based on
this evaluation." (emphasis added). Therefore, consistent with its Charter, the
Compensation and Management Development Committee must submit its recommended
compensation to the CEO to all of the independent directors for approval.
Moreover, in accordance with Section 303A.05(b)(i)(A) of the NYSE Manual, only
independent board directors of the Company vote on the CEO's compensation. Thus,
as in Siliconix, the Company has substantially implemented the proposal through
its compliance with applicable listing standards, its Compensation and
Management Development Committee Charter and its Board practices.
While the Proposal calls for approval or ratification of CEO compensation by
three-quarters of the independent directors, its essential objective is
increased independent director involvement in decision-making with respect to
CEO compensation, which clearly is in place. In this regard, the Staff has not
required companies to implement the entirety of shareholder proposals in order
for them to be substantially implemented as long as the essential objective of
the Proposal is addressed. See e.g. Intel Corp. (avail. Mar. 11, 2003)
(concurring that a proposal requesting that Intel's board "submit to stockholder
vote all equity compensation plans and amendments to add shares to those plans
that would result in material potential dilution" was substantially implemented
by a board policy that excepted certain awards from the policy); Nordstrom, Inc.
(avail. Feb. 8, 1995) (concurring that a proposal requesting a report to
stockholders on Nordstrom's relationship with suppliers and a commitment to
regular inspections was substantially implemented by existing company guidelines
and a press release, even though the guidelines did not commit the company to
conduct regular or random inspections to ensure compliance).
This precedent confirms that where, as here, stock exchange listing standards, a
Board committee charter and Board practices address the essential objectives of
a shareholder proposal, it has been substantially implemented. Accordingly, we
believe that the Proposal may be excluded pursuant to Rule 14a-8(i)(10).
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 Lucian Bebchuck
[INQUIRY LETTER]
November 22, 2006
VIA FACSIMILE
Bristol-Myers Squibb Company
ATTN: Secretary
345 Park Avenue
New York, NY 10154
Re: Shareholder Proposal of Lucian Bebchuk
To whom it may concern:
I am the owner of 125 shares of common stock of Bristol-Myers Squibb Company
(the "Company"), which I have continuously held for more than 1 year as of
today's date. I intend to continue to hold these securities through the date of
the Company's 2007 annual meeting of shareholders.
Pursuant to Rule 14a-8, I enclose herewith a shareholder proposal and supporting
statement (the "Proposal") for inclusion in the Company's proxy materials and
for presentation to a vote of shareholders at the Company's 2007 annual meeting
of shareholders.
Please let me know if you would like to discuss the Proposal or if you have any
questions.
Sincerely,
/s/
Lucian Bebchuk
[APPENDIX]
PROPOSAL
It is hereby RESOLVED that pursuant to Section 109 of the Delaware General
Corporation Law, 8 Del. C. 109, and bylaw No. 56, the Company's bylaws are
hereby amended by adding a new bylaw No. 25 under the heading "Board of
Directors" (and renumbering existing bylaw No.25 and each subsequent bylaw to
reflect the addition of new bylaw No. 25) as follows:
25. Anything in these bylaws to the contrary notwithstanding, any decision of
the Board, or any committee thereof, with respect to the compensation of the
Company's Chief Executive Officer shall be valid only if approved or ratified by
at least three-quarters of all of the independent directors. For purposes of
this bylaw, "independent director" shall mean any director who is not a present
or former employee or officer of the Company, and who satisfies the criteria for
qualifying as an "independent" director under the applicable listing
requirements of the New York Stock Exchange. Nothing in this bylaw shall
prohibit the Board of Directors from delegating authority or responsibility with
respect to executive compensation to a committee or sub-committee of the Board
of Directors, provided, however, that any decision of such committee or
sub-committee with respect to compensation of the Company's Chief Executive
Officer shall require the ratification of three-quarters of all directors
meeting the qualifications for independence set forth in this bylaw.
This bylaw shall be effective immediately and automatically as of the date it is
approved by the vote of stockholders in accordance with bylaw No. 56.
SUPPORTING STATEMENT
Statement of Professor Lucian Bebchuk: I believe that decisions with respect to
the compensation of the Company's CEO are important for the Company and its
Stockholders. In my view, such decisions should not be made when they cannot
obtain widespread support among the Company's independent directors. The
proposed arrangement would not prevent CEO compensation from being first
considered and put together by a small subcommittee or group of directors
provided that their decisions with respect to such compensation are subsequently
ratified by three-quarters of the Company's independent directors.
I urge you to vote "yes" to support the adoption of this proposal.
[INQUIRY LETTER]
January 22, 2007
VIA OVERNIGHT MAIL AND FACSIMILE
Securites and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, DC 20549
Re: Shareholder Proposal Submitted by Lucian Bebchuk for Inclusion in
Bristol-Myers Squibb Company's 2007 Proxy Statement
Ladies and Gentlemen,
This letter is submitted on behalf of our client, Lucian Bebchuk ("Bebchuk") in
connection with the shareholder proposal which Bebchuk submitted to
Bristol-Myers Squibb Company ("Bristol-Myers" or the Company") for inclusion in
the Company's 2007 Proxy Statement (the "Proposal"). The letter responds the
Company's December 27, 2006 letter to the Staff of the Division of Corporate
Finance (the "Staff") of the U.S. Securities and Exchange Commission (the
"Commission") requesting the Staff's concurrence that it will not commence
enforcement if the Company excludes the Proposal from its 2007 Proxy Statement
(the "No-Action Request').1
As explained below, Bristol-Myers' no-action request should be denied. Prof.
Bebchuk's Proposal advocates the adoption of a bylaw which, if adopted by
shareholders, would require that a supermajority (75%) of the Company's
independent directors ratify any decision of the Board, or committee thereof,
involving the compensation of the Company's Chief Executive Officer. In its
no-action request, Bristol-Myers argues that the Proposal may be excluded
because it has been "substantially implemented" by the Company. But, as
Bristol-Myers admits, the Company's existing policies and the NYSE listing
requirements only require approval of executive compensation by a majority of
independent directors. Accordingly, there is a material difference between the
current situation at the Company and Prof. Bebchuk's proposali.e., the
difference between majority approval and a supermajority approval
requirementthat plainly rebuts Bristol-Myers' "substantially implemented"
argument.
Prof. Bebchuk's Proposal simply advocates making the requirements for approving
executive compensation at the Company more stringent than they currently exist.
Bristol-Myers' request for no-action relief on the grounds that the Company has
"substantially implemented" the Proposal should be denied.
I. Bristol-Myers Has Mischaracterized the Thrust of the Proposal
The No-Action Request betrays a fundamental misunderstanding of the Proposal.
The Proposal seeks an amendment of the bylaws to require that a supermajority
(75%) of the independent directors of the Company ratify any decision of the
Board, or committee thereof, involving the compensation of the Company's Chief
Executive Officer. The adoption of such a bylaw amendment by shareholders is
expressly permitted under Delaware law. Section 109 of the DGCL permits
shareholders to adopt and amend corporate bylaws on any matter "not inconsistent
with law or with the certificate of incorporation, relating to the business of
the corporation, the conduct of its affairs, and its rights or powers or the
rights or powers of its stockholders, directors, officers or employees." 8 Del.
C. 109(b). Further, Section 141(b) provides that, although the default rule is
that a board may act by majority vote, the bylaws may impose a more stringent
requirement. 8 Del. C. 141(b) ("The vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors unless the certificate of incorporation or the bylaws shall require
a vote of a greater number." (emphasis supplied)).
This is precisely what the Proposal does in this case. Specifically, while the
Bristol-Myers' Board currently may approve executive compensation by a vote of a
majority of the independent directors, the Proposal seeks to make the approval
process more stringent by requiring supermajority approval. Bristol-Myers'
argument that the "essential thrust" of the Proposal is to require approval by a
simple majority of independent directors not only ignores the plain language of
the Proposal, but also completely fails to appreciate the distinction between
majority approval and a supermajority requirement.
The following chart illustrates the respective requirements imposed by: (i) the
Proposal; (ii) the NYSE Listed Company Manual; and (iii) Bristol-Myers'
Compensation Committee Charter: |[NCCDEF] |[UCA1] |[TDC1,MP1,QL,VU,I1]
|[TCC1,MP2,QL,VU] |[TCC1,MP1,QL,VU] |[XT] |[RN249,0,5D] |[DRR1,LC1-.4,249]
|[DRR2,CG2,249] |[DRR3,CG3,249] |[DRR4,RC3+.4,249]
|[ST]|[LC3]|[BVR1,R2,R3,R4]|[HRH249,R1,R4] |[ST]|[LC3]|[RS1]Proposal/Other
Provision|[QC] |[TA]Basic Characteristics|[QC] |[TA]Distinction(s)|[QC]
|[ST]|[LC3]|[BVR1,R2,R3,R4]|[HRH249,R1,R4] |[ST]Bebchuk Proposal |[TA]Amend the
Bylaws to require that supermajority (75%) of the independent directors of the
Company ratify any decision of the Board, or committee thereof, involving the
compensation of the Company's Chief Executive Officer. |[TA]CEO compensation
decisions must be approved by 75% of independent directors
|[ST]|[LC3]|[BVR1,R2,R3,R4]|[HRH249,R1,R4] |[ST]NYSE Listed Company Manual
Section 303A.05 |[TA]Requires listed companies to have compensation committee
composed of independent directors; requires compensation committee charter to
provide that compensation committee (alone or together with other independent
directors) must approve CEO compensation. |[TA]Does |[RS2]not|[RS1] require
supermajority vote of independent directors to approve CEO compensation
|[ST]|[LC3]|[BVR1,R2,R3,R4]|[HRH249,R1,R4] |[ST]Bristol-Myers' Compensation and
Management Development Committee Charter |[TA]Provides that committee shall
consist of 3 or more independent directors that shall recommend the CEO's
compensation level to the independent directors. |[TA]Does |[RS2]not|[RS1]
require supermajority vote of independent directors to approve CEO compensation
|[ST]|[LC3]|[EVR1,R2,R3,R4]|[HRH249,R1,R4] |[EV] |[ET]
Thus, the Company's suggestion that the combination of: (a) provisions NYSE
listed Company Manual and (b) the Company's Compensation Committee Charter
accomplishes the "essential objective" of the Proposal is patently incorrect.
The objective of the Proposal is to require (via a shareholder adopted bylaw and
consistent with Delaware law) that decisions regarding CEO compensation must be
approved by 75% (e.g., a supermajority) of the independent directors. Neither
the NYSE listed Company Manual, the Company's Compensation Committee Charter, or
any other regulatory requirements or policies or practices of the Company
accomplishor even seek to attainthis objective.
II. Bristol-Myers has not Substantially Implemented the Proposal
We do not dispute that Rule 14a-8(i)(10) permits, under certain circumstances,
the exclusion of shareholder proposals that have been "substantially
implemented" and that a shareholder proposal may be rendered moot by
circumstances other than management action. See, e.g., Exchange Act Release No.
20,091, at II.E.5. (Aug. 16, 1983); Exchange Act Release No. 19,771 (Nov. 22,
1976). See also FedEx Corporation (publicly Available June 26, 2006) (proposal
recommending simple majority vote requirement properly excluded under Rule
14a-8(i)(10) where Company represented to the Staff that it would provide
shareholders at Company's 2006 annual meeting with an opportunity to approve
amendments to the Company's certificate of incorporation and by-laws that would
eliminate supermajority voting requirements); Northrop Grumman Corporation
(publicly Available March 28, 2006) (same).
However, as in this case, where there are important differences between a
proposal and acts taken by a company (alone or in conjunction with other
circumstances), the Staff has consistently declined to issue no-action relief.
See, e.g., Bristol-Myers Squibb Company (publicly available Mar. 17, 2006)
(Staff declined to concur with Company's position that it could omit a proposal
under Rule 14a-8(i)(10) noting that "while the proposal requests that, under
circumstances specified in the proposal, Bristol-Myers recoup all bonuses and
any other awards made to senior executive officers in the event of a restatement
of financial results or significant extraordinary write-off, Bristol-Myers'
Recoupment Policy would result in recoupment only from those officers who, in
the Board's view, engaged in misconduct that caused or partially caused the need
for the restatement."). Siliconix (publicly available Mar. 1, 2004) is
inapposite, because in those proceedings, the exact objectives sought by the
proposal (e.g., appointment of a committee of independent directors to review
related-party transactions) were required by the NASDAQ rules and the Company's
audit committee charter.2 Similarly, in Intel Corp.(publicly available Mar. 11,
2003) and Nordstrom Inc. (publicly available Feb. 8, 1995), the respective
companies had implemented policies substantially similar to the ones proposed by
shareholders. In Intel Corp., after a stockholder submitted a proposal
recommending shareholder approval of equity compensation plans, Intel adopted a
policy requiring shareholder approval of equity compensation plans. In Nordstrom
Inc., a shareholder proposal requested that the company adopt a code of conduct
to ensure that overseas suppliers treat workers humanely. Nordstrom, however,
already had such a policy that closely tracked the language of the shareholder
proposal. Here, in stark contrast, the NYSE Listed Company Manual Section
303A.05 and the Company's Compensation Committee Charter indisputably do not
require what is sought to be accomplished through the proposal (i.e., the
amendment of the Company's bylaws to require decisions regarding CEO
compensation be approved by 75% of the independent directors).
As Bristol-Myers itself notes, "a determination that the company has
substantially implemented the proposal depends upon whether its particular
policies, practices and procedures compare favorably with the guidelines of the
proposal." Texaco, Inc. (avail. Mar. 28, 1991). But as illustrated above,
Bristol-Myers falls hopelessly short of demonstrating that this standard is
satisfied under the present circumstances.3 To the contrary, even a cursory
comparison between the Proposal and the circumstances cited by the Company
illustrates that the sole objective of the Proposal is to require something
(i.e. that CEO compensation decisions must be approved by a 75% of the Company's
independent directors) which is not required by the NYSE Listed Company Manual
or the Company's Compensation Committee Charter.
Finally, for the Staff to accept the position stated in the Company's no-action
request, it would have to conclude that there is no substantive difference
between a provision requiring supermajority approval and a provision requiring
simple majority approval. But Bristol-Myers has cited no support for such a
proposition, nor can it, as it would be inconsistent with Delaware law, which
expressly authorizes and enforces such supermajority provisions. Accordingly,
for all the reasons stated herein, it is respectfully requested that the Staff
decline the Company's request for no-action relief.
Sincerely,
/s/
Michael J. Barry
MJB/rm
cc: Amy L Goodman, Esquire
-----FOOTNOTES-----
1 Invoking Rule 14a-8(i)(10), the Company asserts that the Proposal may properly
be excluded from its 2007 Proxy Statement because it has already "substantially
implemented" the Proposal. According to the Company, because the listing
requirements of the New York Stock Exchange ("NYSE") and the Compensation and
Management Development Committee Charter ("Compensation Committee Charter")
require that the Company's compensation committee be comprised of independent
directors and decisions concerning compensation be voted on by a simple majority
of the independent directors of the Board, "the essential objectives" of the
Proposal have been met.
2 The proposal in Siliconix also did not seek to enact a valid bylaw amendment.
3 The burden is on Bristol-Myers to establish that it has a reasonable basis for
excluding the Proposal from the proxy materials. See Rule 14a-8(g) ("Except as
otherwise noted, the burden is on the company to demonstrate that it is entitled
to exclude the proposal"); Staff Legal Bulletin No 14 (CF) (July 13, 2001).
[STAFF REPLY LETTER]
February 26, 2007
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Bristol-Myers Squibb Company Incoming letter dated December 27, 2006
The proposal amends the company's bylaws to require that the compensation of the
chief executive officer must be approved or ratified by at least three-quarters
of the company's independent directors.
We are unable to concur in your view that Bristol-Myers may exclude the proposal
under rule 14a-8(i)(10). Accordingly, we do not believe that Bristol-Myers may
omit the proposal from its proxy materials in reliance on rule 14a-8(i)(10).
Sincerely,
/s/
Tamara M. Brightwell
Special Counsel
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