Securities Exchange Act of 1934
Bristol-Myers Squibb Company — Exchange Offer
Dear Mr. Cami:
We are responding to your letter dated November 16, 2009 addressed to Michele Anderson and Peggy Kim, as supplemented by telephone conversations with the staff, with regard to your request for no-action relief. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed copy of your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter.
On the basis of your representations and facts presented in your letter, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action under Rules 13e-4(d)(1), 13e-4(e)(3), 13e-4(f)(1)(ii) or 14e-1(b) under the Exchange Act if Bristol Myers conducts the Exchange Offer in the manner described in your letter. In issuing this no-action position, we considered the following facts, among others:
Bristol Myer's disclosure of a specified dollar value of Mead Johnson Class A common stock that tendering Bristol Myers security holders will receive in exchange for a dollar value of tendered Bristol Myers common stock (subject to a limit on the exchange ratio);
The Pricing Mechanism for determining the number of shares of Mead Johnson Class A common stock to be received in exchange for shares of Bristol Myers common stock will be disclosed in the tender offer materials disseminated to security holders;
The Pricing Mechanism will remain constant throughout the duration of the Exchange Offer, and if there is a change in the Pricing Mechanism, the Exchange Offer will remain open for at least ten business days thereafter;
Bristol Myers will provide a toll-free number that Bristol Myers security holders can use to obtain daily indicative exchange ratios and, after announcement of the final exchange ratio, the final exchange ratio (including whether the limit to the exchange ratio is in effect);
Bristol Myers will publish the final exchange ratio (including an announcement whether the limit on the exchange ratio is in effect) in a press release no later than 9:00 a.m., New York City time, on the trading day preceding the Expiration Date and Bristol Myers will file the information as a Rule 425 filing pursuant to Rule 165 of the Securities Act of 1933 and will file an amendment to its Schedule TO on the same date setting forth the same information;
Bristol Myers will make available a notice of withdrawal in its printed materials and will disclose the procedures for withdrawal, including the times and methods by which tenders and withdrawals must be made; and
Bristol Myers common stock and Mead Johnson Class A common stock are listed on the NYSE.
The foregoing no-action positions are based solely on your representations and the facts presented in your letter dated November 16, 2009, as supplemented by telephone conversations with the Commission staff. This relief is strictly limited to the application of the rules listed above to the Exchange Offer. You should discontinue the Exchange Offer pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 9(a), 10(b) and 14(e) of the Exchange Act and Rule 10b-5 and Rule 14e-3 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws rests with the participants in the Exchange Offer. The Division of Corporation Finance expresses no view with respect to any other questions that the Exchange Offer may raise, including, but not limited to, the adequacy of the disclosure concerning, and the applicability of any other federal or state laws to, the Exchange Offer. This response expresses the Division's position on enforcement action only and does not express any legal conclusion on the question presented.
For the Division of Corporation Finance,
Michele M. Anderson
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
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