BMYMP Bristol Myers Squibb Company (PK)

EXPLANATORY NOTE

 

On June 28, 2012, Bristol-Myers Squibb Company (the “Company” or the “Registrant” or “we” or “us”) filed a registration statement on Form S-8 (Registration No. 333-182405) (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register 165,003,009 shares of Common Stock, par value $0.10 per share, of the Company (the “Common Stock”), for offer and sale under (i) the Bristol-Myers Squibb Company 2012 Stock Award And Incentive Plan (the “2012 Plan”), (ii) the Bristol-Myers Squibb Company 2007 Stock Award And Incentive Plan, as Amended and Restated Effective June 10, 2008 (the “2007 Plan”), (iii) the Bristol-Myers Squibb Company Employee Incentive Thrift Plan, as Amended (the “Thrift Plan”), (iv) the Bristol-Myers Squibb Puerto Rico, Inc. Savings and Investment Program, as Amended (the “Puerto Rico Savings Program”), and (v) the Bristol-Myers Squibb Company Savings and Investment Program, as Amended (the “BMS Savings Program”), together with an indeterminate number of “plan interests” for offer and sale under the Thrift Plan, the Puerto Rico Savings Program and the BMS Savings Program (together, the “Savings/Thrift Plans”).

 

On May 4, 2021 (the “Approval Date”), the shareholders of the Company approved the Bristol-Myers Squibb Company 2021 Stock Award and Incentive Plan (the “2021 Plan” and, together with the 2012 Plan, the 2007 Plan and the Savings/Thrift Plans, the “Plans”).  The 2021 Plan reserves 85,000,000 shares of Common Stock for delivery under awards granted after the Approval Date, reduced by the number of shares of Common Stock delivered under equity awards granted between March 15, 2021 and the Approval Date under other equity compensation plans of the Company. It also provides that: (i) no new awards may be granted under our 2012 Plan, our 2014 Equity Incentive Plan (the “2014 Plan”) or our 2017 Stock Incentive Plan (the “2017 Plan,” and with the 2012 Plan and 2014 Plan, our “Equity Compensation Plans”) as of the Approval Date, although awards granted under our Equity Compensation Plans prior to the Approval Date (“Outstanding Awards”) will remain outstanding in accordance with the applicable terms of the Equity Compensation Plans and the related award agreements; and (ii) the shares underlying Outstanding Awards under the Equity Compensation Plans that are not delivered in settlement of such awards due to forfeiture for any reason, expiration of the award unexercised, cancelation or replacement or settlement in cash (the “Carryover Shares”) will become available for delivery under awards granted under the 2021 Plan.

 

Accordingly, we are filing this Post-Effective Amendment No. 1 to the Registration Statement (the Registration Statement as amended by this Post-Effective Amendment No. 1 being the “Amended Registration Statement”) in accordance with the undertaking in Item 512(a)(1)(iii) of Regulation S-K, which requires that the Company disclose a material change in the plan of distribution as it was originally disclosed in the Registration Statement, to specify that a portion of the shares originally registered under the Registration Statement but remaining unsold at the time of this filing will, from and after the Approval Date, be offered and sold under the 2021 Plan.  Because shares remaining unsold under the Registration Statement at the date of this filing do not equal or exceed the maximum number of shares reserved for awards under the 2021 Plan, including potential Carryover Shares, the Company will take steps necessary to register, under a separate Form S-8, the offer and sale of shares in excess of the number registered and available under the Amended Registration Statement.  The filing of this Post-Effective Amendment No. 1 is made in accordance with the guidance issued by the Commission in Release No. 33-10891 (Nov. 24, 2020), in which the Commission clarified that a new equity compensation plan can be added to a previously filed registration statement on Form S-8, and that a Form S-8 covering multiple plans need not specifically allocate a number of shares to each plan to which that Form S-8 relates.

 

No additional shares of Common Stock are being registered hereby. Footnote 1 to the table setting forth the “Calculation of Registration Fee” in the Registration Statement stated a specific number of shares to be offered and sold under each of the 2007 Plan, 2012 Plan and the Savings/Thrift Plans (as a group).  That footnote is hereby modified to eliminate the specification of a number of shares for offer and sale under each specific plan or any grouping of plans, except for the total of shares registered for offer and sale under all plans covered by the Amended Registration Statement.  As permitted by the Release No. 33-10891, shares registered in the Amended Registration Statement will be allocated to the 2007 Plan, the 2012 Plan, each of the Savings/Thrift Plans and the 2021 Plan upon the occurrence of sales or other events requiring the counting of shares against the aggregate number of shares registered for offer and sale hereunder.

This Post-Effective Amendment No. 1 to the Registration Statement amends and supplements the items listed below. A copy of the 2021 Plan is included as Exhibit B to the Company’s Definitive Proxy Statement filed with the Commission on March 25, 2021 and is incorporated herein by reference as Exhibit 99.1, and there is filed herewith a new opinion of counsel as to the legality of the shares of Common Stock to be offered and sold pursuant to the 2021 Plan.  All other items of the Registration Statement are incorporated herein by reference without change.