SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
Commission File Number 1-1136
BRISTOL-MYERS SQUIBB COMPANY
(Exact name of registrant as specified in its charter)
Delaware 22-079-0350
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
345 Park Avenue, New York, N.Y. 10154
(Address of principal executive offices)
Telephone: (212) 546-4000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [ X ] No [ ]
At September 30, 1998, there were 993,571,678 shares outstanding of the
Registrant's $.10 par value Common Stock.
<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
INDEX TO FORM 10-Q
September 30, 1998
Page No.
-----------
Part I - Financial Information:
Financial Statements (Unaudited):
Consolidated Balance Sheet - September 30, 1998
and December 31, 1997 2 - 3
Consolidated Statement of Earnings and Comprehensive Income for
the three and nine months ended September 30, 1998 and 1997 4
Consolidated Statement of Cash Flows for the nine
months ended September 30, 1998 and 1997 5
Management's Discussion and Analysis of Financial
Condition and Results of Operations 6 - 14
Part II - Other Information 15 - 20
Signatures 21
-1-
<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
CONSOLIDATED BALANCE SHEET - ASSETS
(Unaudited, in millions except share amounts)
September 30 December 31,
1998 1997
------------ ------------
Current Assets:
Cash and cash equivalents $ 1,531 $ 1,456
Time deposits and marketable
securities 308 338
Receivables, net of allowances 3,129 2,973
Finished goods 1,101 1,153
Work in process 241 197
Raw and packaging materials 433 449
---------- ----------
Inventories 1,775 1,799
Prepaid expenses 977 1,170
---------- ----------
Total Current Assets 7,720 7,736
---------- ----------
Property, Plant and Equipment 7,221 7,001
Less: Accumulated depreciation 2,973 2,845
---------- ----------
4,248 4,156
---------- ----------
Insurance Recoverable 529 619
Excess of cost over net tangible assets
received in business acquisitions 1,580 1,625
Other Assets 848 841
---------- ----------
Total Assets $14,925 $14,977
========== ==========
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<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
CONSOLIDATED BALANCE SHEET -
LIABILITIES AND STOCKHOLDERS' EQUITY
(Unaudited, in millions except share amounts)
September 30, December 31,
1998 1997
----------- ------------
Current Liabilities:
Short-term borrowings $ 504 $ 543
Accounts payable 1,067 1,017
Accrued expenses 2,117 1,939
Product liability 343 865
U.S. and foreign income taxes payable 614 668
---------- ----------
Total Current Liabilities 4,645 5,032
Other Liabilities 1,419 1,447
Long-Term Debt 1,314 1,279
---------- ----------
Total Liabilities 7,378 7,758
---------- ----------
Stockholders' Equity:
Preferred stock, $2 convertible series:
Authorized 10 million shares; issued and
outstanding 12,112 in 1998 and 12,936 in
1997, liquidation value of $50 per share - -
Common stock, par value of $.10 per share:
Authorized 2.25 billion shares; issued
1,093,589,093 in 1998 and 1,083,253,703
in 1997 109 108
Capital in excess of par value of stock 1,102 544
Cumulative translation adjustments (677) (533)
Retained earnings 12,514 10,950
---------- ----------
13,048 11,069
Less cost of treasury stock - 100,017,415
common shares in 1998 and 90,069,383 in 1997 5,501 3,850
---------- ----------
Total Stockholders' Equity 7,547 7,219
---------- ----------
Total Liabilities and Stockholders' Equity $14,925 $14,977
========== ==========
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<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
CONSOLIDATED STATEMENT OF EARNINGS
AND COMPREHENSIVE INCOME
(Unaudited, in millions of dollars except per share amounts)
Three Months Ended Nine Months Ended
September 30, September 30,
------------------- -------------------
1998 1997 1998 1997
EARNINGS -------- -------- -------- --------
- ---------------
Net Sales $4,523 $4,151 $13,399 $12,260
-------- -------- -------- --------
Cost of products sold 1,191 1,110 3,549 3,285
Marketing, selling, administrative
and other 1,034 949 3,116 3,017
Advertising and product promotion 554 550 1,767 1,604
Research and development 398 346 1,165 993
Provision for restructuring - - 201 -
Gain on sale of businesses - - (201) -
-------- -------- -------- --------
3,177 2,955 9,597 8,899
-------- -------- -------- --------
Earnings Before Income Taxes 1,346 1,196 3,802 3,361
Provision for income taxes 380 341 1,074 958
-------- -------- -------- --------
Net Earnings $ 966 $ 855 $2,728 $2,403
======== ======== ======== ========
Earnings Per Common Share
Basic $.97 $.86 $2.74 $2.41
Diluted $.95 $.84 $2.68 $2.36
Average Common Shares Outstanding (in millions)
Basic 995 995 994 997
Diluted 1,015 1,021 1,016 1,018
Dividends Per Common Share $.39 $.38 $1.17 $1.14
COMPREHENSIVE INCOME
- --------------------
Net Earnings $966 $855 $2,728 $2,403
Other Comprehensive Income:
Foreign currency translation (68) (87) (155) (201)
Tax effect 6 17 11 38
-------- -------- -------- --------
Total Other Comprehensive Income (62) (70) (144) (163)
-------- -------- -------- --------
Comprehensive Income $904 $785 $2,584 $2,240
======== ======== ======== ========
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<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited, in millions of dollars)
Nine Months Ended
September 30,
---------------------------
1998 1997
--------- ---------
Cash Flows From Operating Activities:
Net earnings $ 2,728 $ 2,403
Depreciation and amortization 457 409
Provision for restructuring 201 0
Gain on sale of businesses (201) 0
Other operating items 27 (10)
Receivables (262) (290)
Inventories (81) (265)
Accounts payable 89 (41)
Accrued expenses (242) (79)
Product liability (493) (421)
Insurance recoverable 89 223
Income taxes 468 50
Other assets and liabilities (103) (96)
-------- --------
Net Cash Provided by Operating Activities 2,677 1,883
-------- --------
Cash Flows From Investing Activities:
Proceeds from sales of time deposits and
marketable securities 225 465
Purchases of time deposits and marketable
securities (195) (266)
Additions to fixed assets (537) (438)
Proceeds from sale of business 413 0
Acquisition of businesses (67) (170)
Other, net 10 26
-------- --------
Net Cash Used in Investing Activities (151) (383)
-------- --------
Cash Flows From Financing Activities:
Short-term borrowings (30) 80
Long-term debt 69 305
Issuances of common stock under stock plans 129 226
Purchases of treasury stock (1,448) (971)
Dividends paid (1,163) (1,138)
-------- --------
Net Cash Used in Financing Activities (2,443) (1,498)
-------- --------
Effect of Exchange Rates on Cash (8) (19)
-------- --------
Increase / (Decrease) in Cash and Cash Equivalents 75 (17)
Cash and Cash Equivalents at Beginning of Period 1,456 1,681
-------- --------
Cash and Cash Equivalents at End of Period $1,531 $1,664
======== ========
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<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(in millions, except per share amounts)
Basis of Presentation
- ---------------------
In the opinion of management, the accompanying unaudited consolidated
financial statements include all adjustments (consisting only of normal
adjustments) necessary for a fair presentation of the financial position
of Bristol-Myers Squibb Company (the "Company") at September 30, 1998 and
December 31, 1997, the results of operations for the three and nine months
ended September 30, 1998 and 1997, and cash flows for the nine months ended
September 30, 1998 and 1997. These consolidated financial statements should
be read in conjunction with the consolidated financial statements and the
related notes included in the Company's 1997 Annual Report on Form 10-K.
Third Quarter Results of Operations
- -----------------------------------
Sales
- ------
Worldwide sales for the third quarter of 1998 increased 9% (12% excluding
the effect of foreign exchange) over the prior year to $4,523. The
consolidated sales growth resulted from a 10% increase due to volume, a 3%
decrease due to the effect of foreign exchange and a 2% increase due to
changes in selling prices. Domestic sales increased 16% and international
sales decreased 2% (an increase of 5% excluding the effect of foreign
exchange). Worldwide sales for the third quarter of 1997 increased 11%
compared to the third quarter of 1996.
Industry Segments
- ----------------- Three Months Ended September 30,
------------------------------------------------
Net Sales % Change
----------------------- --------------------
1998 1997 1998 1997
------- ------- ------ -------
Pharmaceutical Products $2,812 $2,424 16 % 13 %
Consumer Medicines 288 321 (10)% 18 %
Medical Devices 385 444 (13)% (3)%
Nutritional Products 441 452 (2)% 6 %
Beauty Care Products 597 510 17 % 13 %
------- -------
Total Company $4,523 $4,151 9 % 11 %
======= =======
<PAGE>
Sales in the pharmaceutical products segment, which is the largest segment
at 62% of total company sales, increased 16% (18% excluding foreign exchange)
over the third quarter of 1997 to $2,812. Sales growth resulted from a 16%
increase in volume, a 2% decrease due to the effect of foreign exchange and
a 2% increase in selling prices. Domestic pharmaceutical sales increased 26%
and international sales increased 6% excluding foreign exchange.
Sales of cardiovascular drugs, the largest product group in the segment,
increased 11% to $775 (13% excluding foreign exchange). Sales of PRAVACHOL*,
the Company's largest selling product, increased 11% to $390. Domestic sales
of PRAVACHOL* increased 14% to $244 and international sales increased 7% to
$146 (11% excluding foreign exchange). In July 1998, additional findings of
the Cholesterol and Recurrent Events (CARE) Trial were published in the
Journal of the American College of Cardiology. The results of the analysis
showed extensive proof of cardiovascular protection in women, the subgroup
that was studied, as well as for a broad range of patients. PRAVACHOL* is
the only drug of its type indicated to reduce the risk of a heart attack in
patients with and without established coronary heart disease. Sales of the
anti-hypertensive MONOPRIL*, a second generation angiotensin converting
enzyme (ACE) inhibitor with once-a-day dosing, increased 13% to $86. AVAPRO
and PLAVIX, recently launched products from the Bristol-Myers Squibb and
Sanofi S.A. joint venture, contributed $86 to sales in the third quarter.
AVAPRO is an angiotensin II receptor blocker for the treatment of hypertension
and PLAVIX is a platelet aggregation inhibitor for the reduction of stroke,
heart attack and vascular death in atherosclerotic patients. Sales growth for
these cardiovascular products was partially offset by a 21% decline in
CAPOTEN* sales due to the loss of patent exclusivity in Europe.
Sales of anti-cancer drugs increased 21% to $774. Sales of TAXOL(r)*
(paclitaxel), the Company's leading anti-cancer agent, increased 25% to $304.
In September 1998, the FDA approved another company's product, Herceptin(r)**,
as a first-line therapy in combination with TAXOL* for treatment of patients
with metastatic breast cancer. Also in September, the European Community
approved a TAXOL* indication for non-small cell lung cancer. Sales of
PARAPLATIN*, an anti-cancer agent used in combination with other chemotherapy
agents, increased 25% to $148. Sales in the Oncology Therapeutics Network
increased 36% to $171.
Anti-infective drug sales of $589 increased 14% over the prior year. ZERIT*
and VIDEX*, the Company's two antiretroviral agents, increased 22% to $133
and 17% to $43, respectively. ZERIT* is now the most commonly prescribed
thymidine nucleoside reverse transcriptase inhibitor in HIV therapy. Sales
of CEFZIL*, used in the treatment of respiratory infections and the treatment
of sinusitis, increased 89% to $98, in anticipation of the upcoming flu
season. Sales of MAXIPIME*, a fourth generation injectable cephalosporin,
were $30, an increase of 29% over the prior year.
* Indicates brand names of products which are registered trademarks owned
by the Company.
** Herceptin is a registered trademark of Genentech Inc.
<PAGE>
Central nervous system drug sales of $255 increased 14% over the prior
year, primarily as a result of BUSPAR*, an anti-anxiety agent, and SERZONE*,
an anti-depressant, which recorded growth of 23% to $138, and 53% to $61,
respectively.
GLUCOPHAGE, the leading branded oral medication for the treatment of non-
insulin dependent (type 2) diabetes, continued its strong growth rate with
sales increasing 33% to $222. In September 1998, results of the United
Kingdom Prospective Diabetes Study demonstrated the excellent therapeutic
efficacy profile of GLUCOPHAGE in the treatment of type 2 diabetes.
For the third quarter of 1997, sales of the pharmaceutical products segment
increased 13% over the third quarter of 1996 to $2,424 as a result of
increases in sales of PRAVACHOL*, GLUCOPHAGE, ZERIT*, TAXOL*, BUSPAR*, and
PARAPLATIN*, which were partially offset by a decrease in CAPOTEN* sales.
Sales in the consumer medicines segment decreased 1% to $288, excluding the
March 1998 divestiture of the Company's BAN* brand of antiperspirants and
deodorants. Including the divested business, sales decreased 10% reflecting
a 9% decrease in volume, a 3% decrease due to the effect of foreign exchange
and a 2% increase due to changes in selling prices. Sales of EXCEDRIN*
increased 7% to $58 following clearance by the FDA in January 1998 to market
EXCEDRIN* MIGRAINE, the first and only non-prescription medication approved
for relief of migraine pain. International consumer medicines sales
decreased 2% (an increase of 3% excluding foreign exchange). BUFFERIN* sales
of $26 increased 1%, and sales of EFFERALGAN*, an analgesic product from the
Company's UPSA group, decreased 2% to $31, both excluding foreign exchange.
For the third quarter of 1997, consumer medicines segment sales increased 18%
to $321, compared to the third quarter of 1996 due to increased sales of
EXCEDRIN* and EFFERALGAN*.
Medical Device sales increased 1% to $385 (5% excluding the effect of
foreign exchange) excluding the December 1997 divestiture of Zimmer's
arthroscopy and surgical powered instrument business. Including sales of the
divested products, sales were 13% below prior year levels, reflecting
decreases of 10% due to volume and 3% due to the effect of foreign exchange.
Changes in selling prices had no effect on sales for the quarter. ConvaTec's
sales increased 3% to $176, excluding the effect of foreign exchange, as
sales of wound care and ostomy products increased 6% to $59 and 1% to $112,
respectively, excluding foreign exchange. Zimmer sales decreased 22% from
prior year levels to $209. Excluding the December 1997 divestiture, Zimmer
sales increased 2% (7% excluding the effect of foreign exchange rate
fluctuations). The 1998 increase is due primarily to the inclusion of revenue
under a distribution agreement with the acquirer of the divested business.
Knee prosthetic joint replacement sales decreased 1% to $78 and hip
replacement sales decreased 2% to $59, both excluding foreign exchange. For
the third quarter of 1997, medical devices segment sales of $444 were 3%
below 1996 levels as decreases due to the effect of foreign exchange and
changes in selling prices offset increased sales in prosthetic implants,
wound care and ostomy products.
<PAGE>
Sales in the nutritional products segment decreased 2% from the third quarter
of 1997 to $441 (an increase of 3% excluding the effect of foreign exchange),
reflecting a 1% increase due to volume, a 5% decrease due to the effect of
foreign exchange and a 2% increase in selling prices. The Company's Mead
Johnson subsidiary maintains its worldwide leadership position in the infant
formula market. Total infant formula sales were $304 for the third quarter
of 1998, an increase of 2% from prior year levels. ENFAMIL* increased 3% to
$166 (6% excluding foreign exchange) and total special infant formulas
increased 8% to $110. BOOST* an adult nutritional supplement also
contributed to sales growth, increasing 23% to $24. For the third quarter
of 1997, nutritional products segment sales increased 6% to $452 compared to
the third quarter of 1996 due to increased sales of NUTRAMIGEN* and LACTOFREE*.
Sales in the beauty care products segment increased 17% over the third quarter
of 1997 to $597, reflecting a 19% increase due to volume, a 2% increase due to
changes in selling prices and a 4% decrease due to the effect of foreign
exchange. Clairol continues to be the number one hair products company in the
U.S., increasing its market share to its highest level to date, following the
January 1998 acquisition of Redmond Products, Inc. The Redmond AUSSIE brand
has added $30 to Beauty Care sales in the quarter. HERBAL ESSENCES*, the
number two brand in total hair care and the number two shampoo in the U.S.,
after only three years in the market, continued its strong growth, increasing
44% to $154. NICE 'N EASY* sales increased 4% to $45 following its recent
re-stage. Sales of DAILY DEFENSE*, launched in September 1997, contributed
$26 to third quarter sales, and REVITALIQUE*, a new permanent haircolor
launched in June 1998, reached sales of $18. For the third quarter of 1997,
sales of the beauty care products segment were $510, an increase of 13%
over the third quarter of 1996 due to increased sales of HERBAL ESSENCES*,
HYDRIENCE* and INFUSIUM 23*.
Cost of Products Sold and Operating Expenses
- --------------------------------------------
Total costs and expenses for the quarter ended September 30, 1998, as a
percentage of sales, decreased to 70.2% from 71.2%. Cost of products
sold decreased to 26.3% of sales from 26.7% in 1997 due to the lower margins
of the divested businesses. Expenditures for advertising and promotion in
support of new and existing products increased 1% to $554 from $550 in 1997.
Marketing, selling, administrative and other expenses increased 9% to $1,034.
Research and development expenditures increased 15% to $398 from $346 in 1997.
Pharmaceutical research and development spending increased 17% over the prior
year, and as a percentage of pharmaceutical sales, was 12.6% in 1998 and
12.3% in 1997.
Earnings
- --------
Earnings before income taxes for the third quarter increased 13% to $1,346
from $1,196 in 1997. The effective tax rate on earnings before income taxes
decreased to 28.2% in 1998 from 28.5% in 1997. Net earnings increased 13%
to $966 from $855. Basic earnings per share increased 13% to $.97 from $.86
in 1997 and diluted earnings per share increased 13% to $.95 from $.84 in 1997.
<PAGE>
Year-To-Date Results of Operations
- ----------------------------------
Sales
- ------
Worldwide sales for the first nine months of 1998 increased 9% (13% excluding
the effect of foreign exchange) over the prior year to $13,399. The
consolidated sales growth resulted from an 11% increase due to volume, a 4%
decrease due to the effect of foreign exchange and a 2% increase due to
changes in selling prices. Domestic sales increased 15% and international
sales increased 2% (10% excluding the effect of foreign exchange). Worldwide
sales for the first nine months of 1997 increased 10% compared to the first
nine months of 1996.
Industry Segments
- ----------------- Nine Months Ended September 30,
-----------------------------------------------
Net Sales % Change
-------------------- --------------------
1998 1997 1998 1997
-------- -------- ------- -------
Pharmaceutical Products $ 8,216 $ 7,148 15 % 13 %
Consumer Medicines 927 999 (7)% 15 %
Medical Devices 1,210 1,334 (9)% (2)%
Nutritional Products 1,313 1,337 (2)% 6 %
Beauty Care Products 1,733 1,442 20 % 13 %
-------- --------
Total Company $13,399 $12,260 9 % 10 %
======== ========
Pharmaceutical products segment sales were $8,216, an increase of 15% over
the prior year, reflecting a 16% increase due to volume, a 3% decrease due
to the effect of foreign exchange and a 2% increase due to changes in selling
prices.
Domestic and international sales increased 23% and 3%, respectively.
Excluding the unfavorable effect of foreign exchange, international sales
increased 10% for the nine months. Cardiovascular drug sales of $2,309
increased 9% from the prior year (excluding the effect of foreign exchange,
sales increased 13%). PRAVACHOL* and MONOPRIL* sales grew 16% to $1,196 and
24% to $288, respectively. Initial sales of AVAPRO and PLAVIX reached $71 and
$74, respectively. Sales growth for these products was partially offset by
a 21% decline in CAPOTEN* sales, due to the loss of its patent exclusivity in
certain countries in Europe during 1997. Sales of anti-cancer drugs
increased 19% to $2,138 due to strong sales of TAXOL* and PARAPLATIN*, up 25%
to $859 and 24% to $401, respectively, as well as OTN sales which increased
35% to $466. Anti-infective drug sales increased 12% to $1,780. Gains were
recorded for ZERIT* and VIDEX*, increasing 41% to $390 and 11% to $117,
respectively, as well as CEFZIL* and MAXIPIME*, up 36% to $296 and 28% to $88,
<PAGE>
respectively. Sales of central nervous system drugs continued to experience
growth, increasing 15% to $748. Sales of SERZONE* and BUSPAR* increased 60%
to $196 and 17% to $368, respectively. GLUCOPHAGE continued its strong growth,
increasing 46% to $641. For the first nine months of 1997, sales of the
pharmaceutical products segment increased 13% over the prior year primarily as
a result of increases in sales of PRAVACHOL*, MONOPRIL*, GLUCOPHAGE,
anti-cancer, anti-infective and central nervous system drugs, partially offset
by the decline in CAPOTEN* sales.
In the consumer medicines segment, excluding the divestiture of BAN*, consumer
medicines sales decreased 2% (an increase of 3% excluding foreign exchange).
Including the divested business, sales decreased 7% to $927, reflecting a 4%
decrease due to volume, a 4% decrease due to the effect of foreign exchange
and a 1% increase due to changes in selling prices. International sales
decreased 2% to (an increase of 5% excluding the effect of foreign exchange).
Sales of EXCEDRIN* increased 17% to $174. For the first nine months of 1997,
consumer medicines segment sales increased 15% over the prior year, primarily
due to the strong performance of analgesics from the UPSA Group.
Sales in the medical devices segment decreased 9% from prior year levels to
$1,210, reflecting a 6% decrease due to volume, a 3% decrease due to the
effect of foreign exchange, and no effect from changes in selling prices.
Excluding the December 1997 divestiture of Zimmer's arthroscopy and surgical
powered instrument business, domestic sales increased 9% and international
sales increased 5% (12% excluding the effect of foreign exchange). Sales of
ostomy and wound care products from the Company's ConvaTec subsidiary
increased 4% to $332 and 9% to $172 respectively, excluding foreign exchange.
Zimmer sales decreased 17% from prior year levels (14% excluding the effect
of foreign exchange rate fluctuations) due to the 1997 divestiture. Knee
prosthetic joint replacement sales increased 1% to $250 and hip replacement
sales remained at prior year levels at $191, excluding foreign exchange. For
the first nine months of 1997, medical devices segment sales decreased 2% from
the prior year levels as decreases due to the effect of foreign exchange
offset increased sales in prosthetic implants, wound care and ostomy products.
In the nutritional products segment, sales decreased 2% to $1,313, reflecting
a 1% increase due to volume, a 6% decrease due to the effect of foreign
exchange and a 3% increase due to changes in selling prices. Domestic sales
increased 2% and international sales decreased 7% (an increase of 7%
excluding the effect of foreign exchange). Total infant formula sales
decreased 2% to $899 (sales increased 2% excluding foreign exchange).
ENFAMIL*, the Company's largest selling infant formula had sales of $486,
a decrease of 4% (2% excluding foreign exchange). Gains were recorded for
LACTOFREE*, NUTRAMIGEN* and BOOST*, up 9% to $86, 8% to $89 and 24% to $65,
respectively. For the first nine months of 1997, nutritional products
segment sales increased 6% over the prior year, primarily due to increased
sales of LACTOFREE*, ENFAPRO* and BOOST*.
<PAGE>
Sales in the beauty care products segment increased 20% over the prior year,
to $1,733 reflecting a 22% increase due to volume, a 2% increase in selling
prices, and a 4% decrease due to the effect of foreign exchange. Domestic
sales increased 22% and international sales increased 17%. Sales of hair
care products increased 49% to $877 due to strong growth of the HERBAL
ESSENCES* complete line of shampoos and conditioners, which increased 70%
to $419, initial sales of the Redmond AUSSIE* brand of $81, and introductory
sales of DAILY DEFENSE* of $58. Sales of HYDRIENCE* haircolor grew 20% to
$73 and introductory sales of REVITALIQUE*, a new permanent haircolor, were
$34. For the first nine months of 1997, sales in the beauty care products
segment increased 13% over the prior year primarily due to increased sales
of HERBAL ESSENCES*, HYDRIENCE* and INFUSIUM 23*.
Cost of Products Sold and Operating Expenses
- --------------------------------------------
Total costs and expenses for the nine months ended September 30, 1998, as
a percentage of sales, decreased to 71.6% from 72.6%. Cost of products
sold decreased to 26.5% of sales from 26.8% in 1997 primarily due to the
lower margin of divested businesses. Expenditures for advertising and
promotion in support of new and existing products increased 10% to $1,767
from $1,604 in 1997. This increase is primarily due to increased spending
on the Company's promoted pharmaceutical and beauty care products. Marketing,
selling, administrative and other expenses increased 3% to $3,116. Research
and development expenditures increased 17% to $1,165 from $993 in 1997.
Pharmaceutical research and development spending increased 19% over the prior
year, and as a percentage of pharmaceutical sales, was 12.6% compared to
11.9% in the same period of 1997.
Earnings
- --------
Earnings before income taxes for the nine months increased 13% to $3,802 from
$3,361 in 1997. The effective tax rate on earnings before income taxes
decreased to 28.3% in 1998 from 28.5% in 1997. Net earnings increased 14% to
$2,728 from $2,403. Basic earnings per share increased 14% to $2.74 from
$2.41 in 1997 and diluted earnings per share increased 14% to $2.68 from $2.36
in 1997.
Financial Position
- ------------------
The balance sheet at September 30, 1998 and the statement of cash flows for
the nine months then ended reflect the Company's strong financial position.
The Company continues to maintain a high level of working capital increasing
to $3.1 billion at September 30, 1998, from $2.7 billion at December 31, 1997.
Long-Term Debt increased to $1,314 from $1,279 at December 1997 due to the
issuance, in February 1998, of $100 million principal 2.14% and 1.73% Yen
denominated notes due in 2003 and 2005.
Internally generated funds continue to be the Company's primary source for
financing expenditures for new plant and equipment. Additions to fixed assets
for the nine months ended September 30, 1998 were $537 compared to $438 during
the same period of 1997.
<PAGE>
During the nine months ended September 30, 1998, the Company purchased 14.2
million shares of its common stock at a total cost of $1,448. In 1998, 2.4
million shares were issued in connection with an acquisition.
YEAR 2000
- ---------
As described in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, the Company has reviewed its information systems for
YEAR 2000 compliance. The YEAR 2000 problem arises because many computer
systems use only two digits to represent the year. These programs may not
process dates beyond 1999, which may cause miscalculations or system failures.
The Company has a comprehensive compliance program to assess the YEAR 2000
problem in the processing of data in the Company's information technology
("IT"), and non-IT systems, including manufacturing, and research and
development systems. With regard to information technology systems, this
program has been implemented, and the assessment as well as the required
corrective actions is substantially complete. With regard to the critical
manufacturing, and research and development systems, the assessment has been
completed, with corrective actions to be substantially completed by mid-year
1999.
In connection with this compliance program, the Company has also asked
critically important vendors, customers, suppliers, governmental regulatory
authorities, and financial institutions whose incomplete or untimely
resolution of the YEAR 2000 problem could potentially have a significant
impact on the Company's operations to assess their YEAR 2000 readiness. This
assessment will be substantially completed by the end of 1998.
Contingency plans are being prepared, where necessary, to minimize any
significant exposures from the failures of these third parties to be YEAR 2000
compliant. These plans will be substantially completed by mid-year 1999, and
include development of backup procedures, identification of alternate
suppliers, and possible increases in inventory levels.
The Company does not expect the YEAR 2000 problem, as well as the cost of the
compliance program, to have a material impact on the results of operations,
financial condition or cash flows. However, there can be no absolute assurance
that third parties will convert their systems in a timely manner and in a way
that is compatible with the Company's systems.
Euro Conversion
- ---------------
On January 1, 1999, certain members of the European Union are scheduled to
establish fixed conversion rates between their existing currencies and the
European Union's common currency, known as the Euro. The transition period
for the introduction of the Euro will be between January 1, 1999 and January
1, 2002. It is planned that by July 1, 2002, the participating countries will
withdraw all currencies and exclusively use the Euro.
<PAGE>
The Company has committed resources to conduct assessments and to take
corrective actions to ensure the Company is prepared for the introduction of
the Euro. The Company is currently evaluating methods to address the many
areas involved with the introduction of the Euro, including information
management, finance, legal, and tax. This review includes the conversion
of information technology business and financial systems, evaluating currency
risk and the effect on the company's financial instruments, as well as the
impact concerning the pricing and the distribution of our products.
The Company believes the effect of the introduction of the Euro, as well as
any related cost of conversion, will not have a material impact on the
results of operations, financial condition and cash flows.
Recently Issued Accounting Standard
- -----------------------------------
In June 1998, the Financial Accounting Standards Board issued Statement
No. 133, "Accounting for Derivative Instruments and Hedging Activities"
which requires that companies recognize all derivatives as either assets or
liabilities in the balance sheet and measure these instruments at fair
value. The Company is required to adopt this Statement by the first quarter
of 2000 and is currently assessing the effect of the new standard.
Reference is made to Part II, Item 1 - Legal Proceedings in which
developments are described for various lawsuits, claims and proceedings
in which the Company is involved.
<PAGE>
BRISTOL-MYERS SQUIBB COMPANY
PART II - OTHER INFORMATION
----------------------------
Item 1. Legal Proceedings
- --------------------------
Various lawsuits, claims and proceedings of a nature considered normal to its
business are pending against the Company and certain of its subsidiaries.
The most significant of these are reported in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997, and material
developments in such matters are described in the Company's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998, and below.
Breast Implant Product Liability Litigation and Prescription Drug Litigation -
Additional Litigation Reserves
- -------------------------------
As previously reported in the Company's Form 10-K for the fiscal year
referred to above, the Company, together with its subsidiary Medical
Engineering Corporation (MEC) and certain other companies, has been named as
a defendant in a number of claims and lawsuits alleging damages for personal
injuries of various types resulting from polyurethane-covered silicone breast
implants and smooth-walled silicone breast implants formerly manufactured by
MEC or a related company.
Also, as previously reported in the Company's Form 10-K and 10-Q Reports
referred to above, the Company is a defendant in a number of actions against
the Company, other pharmaceutical manufacturers, drug wholesalers and pharmacy
benefit managers, in various federal and state courts, brought by certain
chain drugstores, supermarket chains, independent drugstores and consumers,
suing either individually or as representatives of classes of retail
pharmacies or consumers. These cases all seek treble damages and injunctive
relief on account of alleged antitrust violations in the pricing and
marketing of brand name prescription drugs.
For breast implants, the litigation has now reached a point where substantial
information is known about its size and scope. In the fourth quarter of 1998
a number of events are expected to have conjoined to permit the Company to
make a reasoned projection of the overall financial impact on the Company of
breast implant product liability litigation. The Revised Settlement Program
pending before Federal Judge Sam C. Pointer, Jr. (see below) has progressed
to a point where substantial information is now known about the nature of the
claims of persons participating in the Program. In recent months, more
knowledge has been acquired about the nature of the claims of persons opting
out of the Revised Settlement Program and into the court system (see below).
Accordingly, the Company now believes it can estimate within reasonable range
the financial impact of this litigation on the Company, and it expects to
take in the fourth quarter of 1998 an additional special charge to earnings
in the range of $700 to $800 million before taxes and to increase insurance
receivables in the approximate amount of $100 million leaving a net charge
to earnings in the range of $375 to $435 million after taxes in respect of
breast implant product liability. The Company does not expect any additional
special charge in the future in respect of this loss contingency.
<PAGE>
As to the prescription drug litigation, as previously reported, the Company,
along with most other defendant pharmaceutical companies, entered into a
settlement of the national retailer class action pending before Federal Judge
Charles P. Kocoras (see below), which is now on trial as to remaining
pharmaceutical company defendants and others. In addition, the Company has
also entered into settlements with certain retailer class members who opted
out of the national class action, and is vigorously defending its position
in court as to other opt-out retailers. The Company is also defending state
cases asserting so-called consumer antitrust claims based on the same or
similar theories of antitrust liability. In light of the foregoing, the
Company expects to take in the fourth quarter of 1998, a special charge to
earnings, in respect of prescription drug litigation in the approximate
amount of $100 million, or approximately $60 million after taxes.
More details with respect to these matters are as follows:
Breast Implant Litigation
- -------------------------
Of the more than 90,000 claims or potential claims against the Company in
direct lawsuits or through registration in the national class action Revised
Settlement Program, most have been dealt with through the Revised Settlement,
other settlements, or trial. It is expected that as of January 1, 1999, the
Company's contingent liability in respect of breast implant claims will be
limited to residual unpaid Revised Settlement Program obligations and to
roughly 6,000 remaining opt-outs who have pursued or may pursue their claims
in court. As of October 9, 1998, approximately 15,750 U.S. and 1,300 foreign
breast implant recipients were still at least technically plaintiffs in
lawsuits pending in federal and state courts in the U.S. and in certain courts
in Canada and Australia. In these lawsuits, about 10,400 U.S. and 380 foreign
plaintiffs have opted out of the Revised Settlement. The lawsuits of the
5,350 U.S. plaintiffs who have not opted out are expected to be dismissed
since these plaintiffs are among the estimated 74,000 women with MEC implants
who have chosen to participate in the nationwide settlement. Of the remaining
opt-out plaintiffs, some have claims based upon products which were not
manufactured and sold by MEC; many others have claims that are in the process
of being settled. Under the terms of the Revised Settlement Program,
additional opt-outs are expected to be minimal since the deadline for U.S.
class members to opt out has passed. In addition, the Company's remaining
obligations under the Revised Settlement Program are limited because most
payments to "Current Claimants" (see below) have already been made, no
additional "Current Claims" may be filed without court approval, and because
payments of claims to so-called "Other Registrants" and "Late Registrants"
are limited by the terms of the Revised Settlement Program. The Company
believes it will be able to address remaining opt-out claims as well as
expected remaining obligations under the Revised Settlement Program within
its existing reserves as augmented by the expected fourth quarter 1998
special charge to earnings referred to above.
<PAGE>
Breast implants were manufactured by several companies, including MEC,
which the Company acquired in 1982. Until 1991, MEC manufactured two types
of breast implants, polyurethane-covered silicone breast implants and
smooth-walled silicone breast implants. In these lawsuits, plaintiffs
typically contend that silicone in breast implants causes systemic disease
and/or local complications. Some plaintiffs with polyurethane-covered
silicone breast implants contend that the polyurethane component causes
injury, including cancer. Most of the disease claims involve non-specific
complaints such as chronic fatigue, aches and pains and other symptoms that
commonly affect the population at large. Many women claim local complications
such as rupture, hardening or contracture, and disfigurement or scarring.
The plaintiffs typically seek compensatory damages for alleged medical
conditions and emotional distress as well as punitive damages. The
defendants have based their defense in part on the lack of credible scientific
evidence that breast implants cause disease. Many large scale epidemiological
studies have found no connection between breast implants and alleged diseases.
Defendants also contend that warnings set forth in the product literature
adequately advised physicians and surgeons of the risks of local complications.
The Company is a participant in the national class action Revised Settlement
Program approved on December 22, 1995, by the Honorable Sam C. Pointer, Jr.,
Chief Judge of the United States District Court for the Northern District of
Alabama (Lindsey, et al., v. Dow Corning, et al., CV-94-P-11558-S), before
whom all federal breast implant cases were consolidated for pretrial purposes.
The Revised Settlement arises out of the class action settlement originally
approved by the Court on September 1, 1994. All appeals from the Order
approving the Revised Settlement have been dismissed. On January 16, 1996,
the Company, Baxter Healthcare Corporation and Baxter International
(collectively, Baxter), and Minnesota, Mining and Manufacturing Company (3M)
(hereinafter, the Settling Defendants) each paid $125 million into a
court-established fund as an initial reserve to pay claims under the Revised
Settlement. The Company has made and will make additional contributions to
the court-established fund. The fifteen-year Revised Settlement Program
provides benefits to those U.S. breast implant recipients who have had at
least one breast implant manufactured by one of the Settling Defendants
(or their related companies). Several kinds of benefits are available for
eligible participants with breast implants made by companies affiliated with
Bristol-Myers Squibb, Baxter and 3M: (1) for Current Claimants, compensation
generally ranging from $10,000 to $50,000 based on disease and disability
definitions of the original settlement, plus supplemental benefits of an
additional $15,000 to $50,000 for claimants with ruptured implants; (2) for
Current Claimants seeking higher benefits and for Other and Late Registrants,
compensation ranging from $75,000 to $250,000 based on more stringent disease
and disability definitions (Long-Term Benefits); and (3) although the Settling
Defendants are not recommending removal of implants absent some specific
medical reason, a $3,000 payment for those class members (other than Late
Registrants) who seek removal of implants. Current Claimants are eligible for
an advance payment of $5,000, and Other Registrants are eligible for an
advance payment of $1,000. Other Registrants who receive their $1,000
advance payment by June 15, 1999, will be eligible for an additional $2,500
payment if they relinquish their rights to further benefits under the Revised
Settlement and provide a full release of their breast implant claims. For
Current Claimants, benefits are payable regardless of the number of claimants
seeking compensation, and regardless of the total dollar value of approved
claims. For Other and Late Registrants, benefits are subject to an aggregate
$755 million limit for all participating companies over the fifteen-year life
of the Program. The Company's aggregate limit for such benefits is $400
million. In the event the dollar value of the claims subject to the limit
were to exceed this amount, claimants may be afforded additional opt-out
rights but without the right to assert punitive or other statutory multiple
damage claims. The Company's obligations to make payments under the Revised
Settlement are not affected by the number of class members electing to opt
out of the settlement or the number of class members making claims under it
except to the extent of the above-mentioned dollar limits.
<PAGE>
In addition to individual suits and the Lindsey class action, the Company
continues as a defendant, together with other defendants, in two other class
action proceedings. On April 11, 1996, a class action on behalf of all women
in the Canadian province of British Columbia was certified in the provincial
court of British Columbia on the single issue of whether silicone gel breast
implants are reasonably fit for their intended purpose (Harrington v. Dow
Corning Corporation, et al., Supreme Court, British Columbia, C954330).
Also, there is an action pending on behalf of children allegedly exposed to
silicone in utero and through breast milk (Feuer, et al., v. McGhan, et al.,
U.S.D.C., E. Dist. NY, 93-0146), which has not been certified as a class
action, and which names all breast implant manufacturers as defendants and
seeks to establish a medical monitoring fund.
The Company entered into several other settlements of breast implant related
claims. In July of 1995, the Company entered into a $20.5 million (U.S.
funds) class action settlement with plaintiff representatives in the provinces
of Ontario and Quebec. The class includes persons who have or had MEC breast
implants and who reside in Ontario and Quebec or who received their MEC
implants there. The settlement, which had minimal opt-outs, has been approved
by the provincial courts of Ontario and Quebec. In May of 1996, the Company,
together with other Settling Defendants in the Revised Settlement Program,
entered into a $50 million settlement of claims asserted by certain health
insurers based upon payments made or benefits provided by insurers and
represented health plans to participating registrants that allegedly involve
or relate to silicone gel breast implants. The Company has contributed $22.5
million to this settlement, which extinguishes the potential claims of the
majority of the U.S. commercial and non-governmental health care insurer
market against both the defendants and settlement class members. In November
1996, the benefits of the Revised Settlement were extended, with certain
modifications, to foreign breast implant recipients. Pursuant to this
settlement, the Settling Defendants paid (on an equal basis) an aggregate of
$25 million into a court-approved settlement fund as an initial reserve for
payment of foreign claims.
The Company's insurers were notified of the breast implant claims and the
Revised Settlement, and a number reserved their rights or declined coverage.
The Company reached settlement with many of these insurers in connection with
coverage litigation filed by it in state court in Texas. Certain proceedings
remain involving some insurers. In 1993, the Company offset its breast
implant product liability special charges by $1.0 billion of expected
insurance proceeds (recorded as Insurance Recoverable). The Company now
believes that it will obtain additional amounts of insurance proceeds above
that amount and expects to record an additional Insurance Recoverable in the
fourth quarter of 1998 of approximately $100 million.
While there have been a few large judgments, defendants have won more trials
than they have lost, and since 1992 the Company's trial experience has been
favorable. The Company has maintained throughout this litigation that breast
implants do not cause disease and medical and scientific data support the
Company's position. The Company's view has found support in the trial courts.
So far, courts in seven states have ruled to exclude the testimony of
plaintiffs' experts concerning a causal link between silicone gel breast
implants and systemic illness on the ground that it fails to satisfy
standards for reliability under current U.S. Supreme Court guidelines. A
science panel appointed by Judge Pointer is in the process of reviewing the
scientific literature regarding any relationship between breast implants and
disease, and is expected to report its findings in 1998. The Company intends
to dispose of the claims of remaining opt-outs by continuing to implement its
plan to settle cases at values it deems acceptable, and to wage a vigorous
defense, including taking cases to trial, of those cases that do not settle
at such values.
<PAGE>
In the fourth quarter of 1993, the Company recorded a charge of $500 million
before taxes ($310 million after taxes) in respect of breast implant cases.
The charge consisted of $1.5 billion for potential liabilities and expenses,
offset by $1.0 billion of expected insurance proceeds. In the fourth
quarters of 1994 and 1995, the Company recorded additional special charges
of $750 million before taxes ($488 million after taxes) and $950 million
before taxes ($590 million after taxes), respectively, related to breast
implant product liability claims. Those reserves are now expected to be
augmented by the fourth quarter 1998 charge to earnings described above.
Prescription Drug Litigation
- ----------------------------
The Company, without admitting any wrongdoing, previously reached an amended
agreement to settle the national class action brought against the Company,
other pharmaceutical manufacturers, drug wholesalers and pharmacy benefit
managers by certain chain drugstores, supermarket chains and independent
drugstores and consolidated in the United States District Court for the
Northern District of Illinois, before Federal Judge Charles P. Kocoras. That
settlement has become final. Settlements have also been reached with some of
the opt-out retailers who brought federal antitrust claims and settlement
negotiations have been conducted with others. Cases brought by retail
pharmacies in state court under state law alleging similar grounds are
proceeding in Alabama, California and Mississippi, while settlements have been
reached by the Company of such cases brought in Minnesota and Wisconsin. The
Company and almost all of the other pharmaceutical manufacturers named as
defendants in cases brought as class actions on behalf of consumers in Arizona,
the District of Columbia, Florida, Kansas, Maine, Michigan, Minnesota, New
York, North Carolina, Tennessee and Wisconsin, have entered into settlements
of those actions, which have received final approvals in Arizona, Michigan,
New York and Wisconsin, and are subject to court approval in each remaining
state. On July 30, 1998, a class action on behalf of consumers was brought
in Tennessee against the Company and other pharmaceutical manufacturers which
sought state recoveries in Tennessee, as well as in Alabama, Arizona, Florida,
Kansas, Maine, Michigan, Minnesota, New Mexico, North Carolina, North Dakota,
South Dakota, West Virginia and Wisconsin. Based on recent activity, the
Company expects to take the charge against earnings referred to above in
respect of prescription drug litigation. The Company will continue to defend
vigorously its position in this ongoing litigation, considering settlement of
some or all of the remaining cases only where the cost of litigation and any
associated litigation risk make this a practical and sensible course.
Item 6. Exhibits and Reports on Form 8-K
- ------------------------------------------
(a) Exhibits (listed by number corresponding to the Exhibit Table of Item 601
in Regulation S-K).
Exhibit Number and Description Page
- ------------------------------ -------
3b. Bylaws of Bristol-Myers Squibb Company, as amended,
effective November 3, 1998. E- 3-1
27. Bristol-Myers Squibb Company Financial Data Schedule. E-27-1
99. Additional Exhibit. E-99-1
(b) Reports on Form 8-K.
The Registrant did not file any reports on Form 8-K during the quarter ended
September 30, 1998.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BRISTOL-MYERS SQUIBB COMPANY
---------------------------------
(Registrant)
Date: November 16, 1998 /s/ Harrison M. Bains, Jr.
---------------------------------
Harrison M. Bains, Jr.
Vice President and Treasurer
Date: November 16, 1998 /s/ Frederick S. Schiff
---------------------------------
Frederick S. Schiff
Vice President Financial Operations
and Controller
--------------------------------------------------------------------------
BRISTOL-MYERS SQUIBB COMPANY
---------------
BYLAWS
As Adopted on November 1, 1965
And as Amended to November 3, 1998
---------------
--------------------------------------------------------------------------
E-3-1
<PAGE>
INDEX
BYLAW NO. SUBJECT Page No.
1. Principal Office E-3-5
2. Other Offices E-3-5
3. Seal E-3-5
4. Meetings of Shareholders -- Date and Time E-3-5
5. Meetings of Shareholders -- Place E-3-6
6. Meetings of Shareholders -- No Action By Written
Consent, Call E-3-6
7. Meetings of Shareholders -- Notice E-3-6
8. Meetings of Shareholders -- Quorum E-3-6
9. Meetings of Shareholders -- Presiding Officer and
Secretary E-3-7
10. Meetings of Shareholders -- Voting E-3-7
11. Meetings of Shareholders -- Voting List E-3-7
12. Annual Meeting of Shareholders -- Statement of Business
and Condition of Company E-3-7
13. Meetings of Shareholders -- Inspectors of Election E-3-7
14. Board of Directors -- Powers E-3-8
15. Board of Directors -- Number, Election, Term, Resignation
or Retirement, Removal and Filling Vanancies E-3-8
16. Board of Directors -- Location of Meetings and Books E-3-9
17. Board of Directors -- Scheduling of Regular Meetings E-3-9
18. Board of Directors -- Scheduling of Special Meetings E-3-9
E-3-2
<PAGE>
BYLAW NO. SUBJECT Page No.
19. Board of Directors -- Waiver of Meeting Notice and
Action by Consent E-3-9
20. Board of Directors -- Quorum for Meeting E-3-9
21. Board of Directors -- Meeting Procedure E-3-10
22. Board of Directors -- Fees E-3-10
23. Board of Directors -- Indemnification E-3-10
24. Committees of the Board -- Executive, Audit, Others E-3-11
25. Committees of the Board -- Minutes and Reports E-3-12
26. Officers E-3-12
27. Officers -- Election and Term E-3-12
28. Appointment of Other Officers, Committees or Agents E-3-13
29. Officers -- Removal E-3-13
30. Officers -- Resignation E-3-13
31. Officers -- Unable to Perform Duties E-3-13
32. Officers -- Vacancy E-3-13
33. The Chairman of the Board -- Powers and Duties E-3-13
34. Vice Chairman of the Board -- Powers and Duties E-3-13
35. Duties of President E-3-13
36. Vice Presidents -- Powers and Duties E-3-14
37. The Treasurer -- Powers and Duties E-3-14
E-3-3
<PAGE>
BYLAW NO. SUBJECT Page No.
38. The Secretary -- Powers and Duties E-3-14
39. The Controller -- Powers and Duties E-3-14
40. Assistant Treasurers and Assistant Secretaries --
Powers and Duties E-3-14
41. Officers -- Compensation E-3-14
42. Contracts, Other Instruments, Authority to Enter
Into or Execute E-3-15
43. Loans and Negotiable Paper E-3-15
44. Checks, Drafts, etc. E-3-15
45. Banks -- Deposit of Funds E-3-15
46. Stock Certificates -- Form, Issuance E-3-15
47. Stock -- Transfer E-3-15
48. Stock Certificates -- Loss, Replacement E-3-16
49. Record Dates E-3-16
50. Registered Shareholders E-3-16
51. Fiscal Year E-3-17
52. Notices E-3-17
53. Notices -- Waiver E-3-17
54. Amendments of Bylaws E-3-17
E-3-4
<PAGE>
BYLAWS
of
BRISTOL-MYERS SQUIBB COMPANY
OFFICES.
1. The registered office of the Company shall be in the City of Wilmington,
County of New Castle, State of Delaware, and the name of the resident agent
in charge thereof is The Corporation Trust Company.
2. The Company may also have offices at such place or places as the Board of
Directors may from time to time appoint or the business of the Company may
require.
SEAL.
3. The corporate seal shall have inscribed thereon the name of the Company,
the year of its organization and the words "Corporate Seal, Delaware." Said
seal may be used in causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
MEETINGS OF SHAREHOLDERS.
4. The annual meeting of the shareholders for the election of directors and
for the transaction of any other proper business shall be held at such time
as the Board of Directors may determine. For nominations or other business
to be properly brought before any annual meeting by a shareholder, a
shareholder must give timely notice in writing thereof to the Secretary of
the Company and, in the case of business other than nominations, such other
business must be a proper matter for shareholder action. To be considered
timely, a shareholder's notice must be received by the Secretary at the
principal executive offices of the Company not less than 120 calendar days
before the date of the Company's proxy statement released to shareholders in
connection with the prior year's annual meeting. If the annual meeting for
the election of directors is not held on the date designated therefor, the
directors shall cause the meeting to be held as soon thereafter as convenient.
A shareholder's notice shall set forth: (a) as to each person whom the
shareholder proposes to nominate for election or re-election as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, including such person's written
consent to being named in the proxy statement as a nominee and to serving as
a director if elected; (b) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal
is made and (c) as to
E-3-5
the shareholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and address of
such shareholder, as they appear on the Company's books, and of such
beneficial owner, (ii) the number of shares of stock held of record and
beneficially by such shareholder and such beneficial owner, (iii) the name
in which all such shares of stock are registered on the stock transfer books
of the Company, (iv) a representation that the shareholder intends to appear
at the meeting in person or by proxy to submit the business specified in such
notice, (v) a brief description of the business desired to be submitted to
the annual meeting, including the complete text of any resolutions intended to
be presented at the annual meeting, and the reasons for conducting such
business at the annual meeting, (vi) any personal or other material interest
of the shareholder in the business to be submitted, and (vii) all other
information relating to the proposed business which may be required to be
disclosed under applicable law. In addition, a shareholder seeking to submit
such business at the meeting shall promptly provide any other information
reasonably requested by the Company. The chairman of the meeting shall
determine all matters relating to the efficient conduct of the meeting,
including, but not limited to, the items of business, as well as the
maintenance of order and decorum. The chairman shall, if the facts warrant,
determine and declare that any putative business was not properly brought
before the meeting in accordance with the procedures prescribed by this bylaw,
in which case such business shall not be transacted. Notwithstanding the
foregoing provisions of this bylaw, a shareholder who seeks to have any
proposal included in the Company's proxy materials shall comply with the
requirements of Rule 14a-8 under Regulation 14A of the Securities Exchange
Act of 1934.
5. Meetings of the shareholders may be held at such places either within or
without the State of Delaware as the Board of Directors may determine.
6. Any action required or permitted to be taken by the stockholders of the
Company must be effected at a duly called annual or special meeting of such
stockholders and may not be effected by any consent in writing by such
stockholders. Except as otherwise required by law and subject to the rights
under Article FOURTH of the Certificate of Incorporation of the Company of
the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Company may be called only by the Chairman of the Board
or by the Board of Directors pursuant to a resolution approved by a majority
of the entire Board of Directors.
7. Except as hereinafter provided or as may be otherwise required by law,
notice of the place, date and hour of holding each annual and special meeting
of the shareholders shall be in writing and shall be delivered personally or
mailed in a postage prepaid envelope, not less than ten days before such
meeting, to each person who appears on the books of the Company as a
shareholder entitled to vote at such meeting, and to any shareholders who,
by reason of any action proposed at such meeting, would be entitled to have
their shares appraised if such action were taken. The notice of every special
meeting, besides stating the time and place of such meeting, shall state
briefly the purpose or purposes thereof; and no business other than that
specified in such notice or germane thereto shall be transacted at the
meeting, except with the unanimous consent in writing of the holders of record
of all of the shares of the Company entitled to vote at such meeting. Notice
of any meeting of shareholders shall not be required to be given to any
shareholder entitled to participate in any action proposed to be taken at
such meeting who shall attend such meeting in person or by proxy or who
before or after any such meeting shall waive notice thereof in writing or by
telegram, cable or wireless. Notice of any adjourned meeting need not be given.
8. At all meetings of shareholders of the Company, except as otherwise
provided by law, the holders of a majority in number of the outstanding shares
of the Company, present in person or by proxy and entitled to vote thereat,
shall constitute a quorum for the transaction of business. In the absence of
a quorum the holders of a majority in number of the shares of stock so present
or represented and entitled to vote may adjourn the meeting from time to time
until a quorum is present. At any such adjourned meeting at which a quorum
is present any business may be transacted which might have been transacted at
the meeting as originally called.
E-3-6
<PAGE>
9. The Chairman of the Board shall preside as chairman at every meeting of
shareholders. The Chairman of the Board may designate another officer of the
Company or any shareholder to preside as chairman of a meeting of shareholders
in place of the Chairman of the Board and in the absence of the Chairman of
the Board and an officer or shareholder designated by the Chairman of the
Board to preside as chairman of the meeting, the Board of Directors may
designate an officer or shareholder to preside as chairman of the meeting.
In the event the Chairman of the Board and the Board of Directors fail to so
designate a chairman of the meeting the shareholders may designate an officer
or shareholder as chairman. The Secretary shall act as secretary of the
meeting, or, in the absence of the Secretary, the presiding officer shall
appoint a secretary of the meeting.
10. At each meeting of the shareholders every shareholder of record entitled
to vote thereat shall be entitled to one vote for each share of the Company
standing in that shareholder's name on the books of the Company provided that
no share of stock shall be voted at any election of directors which shall
have been transferred on the books of the Company later than the record date
announced by the Board of Directors or fixed by operation of these bylaws
The vote on shares may be given by the shareholder entitled thereto in person
or by proxy duly appointed by an instrument in writing subscribed by such
shareholder or that shareholder's duly authorized attorney (or in any other
manner prescribed by the General Corporation Law of the State of Delaware),
and delivered to the secretary of the meeting; provided, however, that no
proxy shall be valid after the expiration of three years from the date of
its execution unless the shareholder executing it shall have specified
therein the length of time it is to continue in force, which shall be for
some limited period. At all meetings of shareholders, a quorum being present,
all matters, except as otherwise provided by law or by the Certificate of
Incorporation of the Company or these bylaws, shall be decided by the holders
of a majority in number of the shares of stock of the Company present in
person or by proxy and entitled to vote. A share vote may be by ballot and
each ballot shall state the name of the shareholder voting and the number
of shares owned by that shareholder and shall be signed by such shareholder
or by that shareholder's proxy. Except as otherwise required by law or by
these bylaws all voting may be viva voce.
11. The Secretary or other officer in charge of the stock ledger of the
Company shall prepare and make at least ten days before every meeting of
shareholders a complete list of the shareholders entitled to vote at the
meeting arranged in alphabetical order and showing the address of each
shareholder and the number of shares registered in the name of each
shareholder. Such list shall be open to the examination of any shareholder
for any purpose germane to the meeting during ordinary business hours for a
period of at least ten days prior to the meeting either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or if not so specified at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be inspected
by any shareholder who is present. The stock ledger shall be the only
evidence as to who are the shareholders entitled to examine the stock
ledger, the list required by this bylaw, or the books of the Company or to
vote in person or by proxy at any meeting of shareholders.
12. The Board of Directors shall present at each annual meeting, and when
called for by vote of the shareholders at any special meeting of the
shareholders, a full and clear statement of the business and condition of
the Company.
13. At all elections of directors and when otherwise required by law, the
chairman of the meeting shall appoint two inspectors of election. The
inspectors shall be responsible for receiving, tabulating and reporting the
result of the votes taken. No director or candidate for the office of
director shall be appointed such inspector. The chairman of the meeting shall
open and close the polls.
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DIRECTORS.
14. The property, business and affairs of the Company shall be managed by
or under the direction of the Board of Directors, which may exercise all
such powers of the Company and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these bylaws
directed or required to be exercised or done by the shareholders.
15. (a) The Board of Directors shall consist of eleven directors. Directors
need not be shareholders. The number of directors may be determined by a
majority vote of the entire Board of Directors.
(b) Except as otherwise provided by the Certificate of Incorporation, by
these bylaws or by law, at each meeting of the shareholders for the election
of directors at which a quorum shall be present, the persons receiving a
plurality of the votes cast shall be directors. Such election shall be by
ballot.
(c) The directors, other than those who may be elected by the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be classified, with respect to the time
for which they severally hold office, into three classes, as nearly equal in
number as possible, as determined by the Board of Directors, one class to be
originally elected for a term expiring at the annual meeting of stockholders
to be held in 1985, another class to be originally elected for a term expiring
at the annual meeting of stockholders to be held in 1986, and another class
to be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1987, with the directors of each class to hold
office until their successors are elected and qualified. At each annual
meeting of the stockholders, the successors of the class of directors whose
term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year
following the year of their election. No decrease in the number of directors
constituting the Board of Directors or change in the restrictions and
qualifications for directors shall shorten the term of any incumbent director.
(d) Except as otherwise provided in the Certificate of Incorporation or in
these bylaws, each director shall continue in office until the expiration of
his term of office and until a successor shall have been elected and shall
have qualified, or until the director shall have resigned, or, in the case of
a director who is an employee of the Company, until the director shall have
resigned from employment with the Company or the director's employment shall
have been terminated by the Company. In addition, a director who is not an
employee of the Company or who is the Chief Executive Officer of the Company
or a retired Chief Executive Officer of the Company shall retire from the
position of director at the Annual Meeting following attainment of age 70; an
employee who is a director of the Company (other than the Chief Executive
Officer or a retired Chief Executive Officer) shall retire from the position
of director on the effective date of the director's retirement as an employee
of the Company. Any director of the Company may resign at any time by giving
written notice to the Chairman of the Board or to the Secretary of the Company.
Such resignation shall take effect at the time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Exceptions to the requirements for the
retirement of a director may be made by the Board of Directors.
(e) Subject to the rights under Article FOURTH of the Certificate of
Incorporation of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, any director or entire class of directors or the
entire Board of Directors may be removed from office, with or without cause,
only by the affirmative
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vote of the holders of at least 75% of the outstanding shares of stock of
the Company entitled to vote generally in the election of directors, voting
together as a single class.
(f) Subject to the rights under Article FOURTH of the Certificate of
Incorporation of the Company of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation
to elect directors under specified circumstances, newly created directorships
resulting from any increase in the number of directors and any vacancies on
the Board of Directors resulting from death, resignation, retirement,
disqualification, removal or other cause shall be filled only by the
affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors. Any director elected
in accordance with the preceding sentence shall hold office for the remainder
of the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified.
16. The directors may hold their meetings and keep the books of the Company
at such place or places as they may from time to time determine.
17. Regular meetings of the Board of Directors may be held at such time as
may be fixed from time to time by resolution of the Board of Directors.
Unless required by said resolution, notice of any such meeting need not be
given.
18. Special meetings of the Board of Directors shall be held whenever called
by direction of the Chairman of the Board or any of three of the directors
for the time being in office. Notice of each such special meeting shall be
mailed, postage prepaid, to each director, addressed to the director at the
director's residence or usual place of business, at least two days before
the day on which the meeting is to be held, or shall be sent to the director
at such place by telegraph, cable, or wireless, or be delivered personally
or by telephone, not later than the day before the day on which the meeting
is to be held. Every such notice shall state the time and place but, except
as provided by these bylaws or by resolution of the Board of Directors, need
not state the purposes of the meetings.
19. Anything in these bylaws or in any resolution adopted by the Board of
Directors to the contrary notwithstanding, notice of any meeting of the
Board of Directors need not be given to any director, if, before or after
any such meeting, notice thereof shall be waived by such director in writing
or by telegraph, cable or wireless. Any meeting of the Board of Directors
shall be a legal meeting without any notice having been given or regardless
of the giving of any notice or the adoption of any resolution in reference
thereto, if all the directors shall be present thereat or shall have so
waived notice thereof. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting, if prior
to such action a written consent thereto is signed by all members of the
Board and such written consent is filed with the minutes of proceedings of
the Board of Directors.
20. Five of the directors in office at the time of any regular or special
meeting of the Board of Directors shall constitute a quorum for the
transaction of business at such meeting and except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation or by
these bylaws, the act of a majority of the directors present at any such
meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum a majority of the directors present
may adjourn any meeting from time to time until a quorum is present. Notice
of any adjourned meeting need not be given. The directors shall act only as
a board and the individual directors shall have no power as such.
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<PAGE>
21. At each meeting of the Board of Directors the Chairman of the Board
shall preside. The Chairman of the Board may designate another member of
the Board of Directors to preside as chairman of a meeting in place of the
Chairman of the Board and in the absence of the Chairman of the Board and
any member of the Board of Directors designated by the Chairman of the Board
to preside as chairman of the meeting a majority of the directors present
may designate a member of the Board of Directors as chairman to preside at
the meeting. The Secretary of the Company or, in the absence of the
Secretary, a person appointed by the chairman of the meeting, shall act as
secretary of the Board of Directors. The Board of Directors may adopt such
rules and regulations for the conduct of their meetings and the management of
the affairs of the Company as they shall deem proper and not inconsistent
with the law or with these bylaws. At all meetings of the Board of Directors
business shall be transacted in such order as the Board of Directors may
determine.
22. Each director shall be paid such fee, if any, for each meeting of the
Board attended and/or such annual fee as shall be determined from time to
time by resolution of the Board of Directors, provided that nothing herein
contained shall be construed to prevent any director from serving the Company
in any other capacity and receiving compensation therefor.
23. (a) Definitions. As used herein, the term "director" shall include each
present and former director of the Company and the term "officer" shall
include each present and former officer of the Company as such, and the
terms "director" and "officer" shall also include each employee of the
Company, who, at the Company's request, is serving or may have served as a
director or officer of another corporation in which the Company owns directly
or indirectly, shares of capital stock or of which it is a creditor. The
term "officer" also includes each assistant or divisional officer. The term
"expenses" shall include, but not be limited to, reasonable amounts for
attorney's fees, costs, disbursements and other expenses and the amount or
amounts of judgments, fines, penalties and other liabilities.
(b) Indemnification Granted. Each director and officer shall be and hereby
is indemnified by the Company, to the full extent permitted by law, against:
(i) expenses incurred or paid by the director or officer in connection with
any claim made against such director or officer, or any actual or threatened
action, suit or proceeding (civil, criminal, administrative, investigative or
other, including appeals and whether or not relating to a date prior to the
adoption of this bylaw) in which such director or officer may be involved as
a party or otherwise, by reason of being or having been a director or officer
of the Company, or of serving or having served at the request of the Company
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
(ii) the amount or amounts paid by the director or officer in settlement of
any such claim, action, suit or proceeding or any judgment or order entered
therein, however, notwithstanding anything to the contrary herein where a
director or officer seeks indemnification in connection with a proceeding
voluntarily initiated by such director or officer the right to indemnification
granted hereunder shall be limited to proceedings where such director or
officer has been wholly successful on the merits.
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<PAGE>
(c)Miscellaneous.
(i) Expenses incurred and amounts paid in settlement with respect to any
claim, action, suit or proceeding of the character described in
paragraph (b)(i) above may be advanced by the Company prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amounts as shall not ultimately be determined to be
payable to such recipient under this bylaw.
(ii) The rights of indemnification herein provided for shall be severable,
shall not be exclusive of other rights to which any director or officer now
or hereafter may be entitled, shall continue as to a person who has ceased
to be an indemnified person and shall inure to the benefit of the heirs,
executors, administrators and other legal representatives of such a person.
(iii) The provisions of this bylaw shall be deemed to be a contract between
the Company and each director or officer who serves in such capacity at any
time while such bylaw is in effect.
(iv) The Board of Directors shall have power on behalf of the Company to
grant indemnification to any person other than a director or officer to such
extent as the Board in its discretion may from time to time determine.
COMMITTEES OF THE BOARD.
24. (a) The Board of Directors may, by resolution or resolutions, passed by a
majority of the whole Board of Directors, designate an Executive Committee
(and may discontinue the same at any time) to consist of three or more of the
Directors of the Company. The members shall be appointed by the Board of
Directors and shall hold office during the pleasure of the Board of Directors;
provided, however, that in the absence or disqualification of any member of
the Executive Committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not the member or members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member. The Executive Committee shall have and may exercise,
during the intervals between the meetings of the Board of Directors, all of
the powers of the Board of Directors in the management of the business and
affairs of the Company (and shall have power to authorize the seal of the
Company to be affixed to all papers which may require it), except that the
Executive Committee shall have no power to (i) elect Directors to fill any
vacancies or appoint any officers; (ii) fix the compensation of any officer
or the compensation of any Director for serving on the Board of Directors or
on any committee; (iii) declare any dividend or make any other distribution
to the shareholders of the Company; (iv) submit to shareholders any action
that needs shareholder authorization; (v) amend or repeal the bylaws or adopt
any new bylaw; (vi) amend or repeal any resolution of the Board of Directors
which by its terms shall not be so amendable or repealable; (vii) take any
final action with respect to the acquisition or disposition of any business
at a price in excess of $20,000,000.
(b) The Board of Directors shall, by resolution or resolutions, passed by a
majority of the whole Board of Directors designate an Audit Committee to
consist of three or more non-employee directors of
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<PAGE>
the Company free from any relationship that, in the opinion of the Board of
Directors, would interfere with the exercise of independent judgment as a
Committee member. Any director who is a former employee of the Company may
not serve on the Audit Committee. The members of the Audit Committee shall
be appointed by and hold office during the pleasure of the Board of Directors.
A majority of the members of the Audit Committee will constitute a quorum for
the transaction of business. It shall be the duty of the Audit Committee
(i) to recommend to the Board of Directors a firm of independent accountants
to perform the examination of the annual financial statements of the Company;
(ii) to review with the independent accountants and with the Controller the
proposed scope of the annual audit, past audit experience, the Company's
internal audit program, recently completed internal audits and other matters
bearing upon the scope of the audit; (iii) to review with the independent
accountants and with the Controller significant matters revealed in the
course of the audit of the annual financial statements of the Company;
(iv) to review on a biennial basis that the Company's Standards of Business
Conduct have been communicated by the Company to all key employees of the
Company and its subsidiaries throughout the world with a direction that all
such key employees certify that they have read, understand and are not aware
of any violation of the Standards of Business Conduct; (v) to review with
the Controller any suggestions and recommendations of the independent
accountants concerning the internal control standards and the accounting
procedures of the Company; (vi) to meet on a regular basis with a
representative or representatives of the Internal Audit Department of the
Company and to review the Internal Audit Department's Reports of Operations;
(vii) to report its activities and actions to the Board of Directors at
least once each fiscal year.
(c) The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board of Directors, designate such other committees
as may be deemed advisable (and may discontinue the same at any time), to
consist of two or more of the directors of the Company. The members shall
be appointed by and shall hold office during the pleasure of the Board of
Directors, and the Board of Directors shall prescribe the name or names of
such committees, the number of their members and their duties and powers.
(d) Any action required or permitted to be taken at any meeting of any
committee may be taken without a meeting, if prior to such action a written
consent thereto is signed by all members of the committee and such written
consent is filed with the minutes of proceedings of the committee.
25. All committees shall keep written minutes of their proceedings and report
the same to the Board of Directors when required.
OFFICERS.
26. The officers of the Company shall be a Chairman of the Board, a Vice
Chairman of the Board, a President, two or more Vice Presidents (which shall
include Senior Vice President, Executive Vice President and other Vice
President titles), a Treasurer, a Secretary, a Controller, and such other
officers as may be appointed in accordance with these bylaws. The Secretary
and Treasurer may be the same person, or a Vice President may hold at the
same time the office of Secretary, Treasurer, or Controller.
27. The officers of the Company shall be chosen by the Board of Directors.
Each officer shall hold office until a successor shall have been duly chosen
and shall have qualified or until the death or retirement of the officer or
until the officer shall resign or shall have been removed in the manner
hereinafter provided. The Chairman of the Board and the Vice Chairman of the
Board shall be chosen from among the directors.
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<PAGE>
28. The Board of Directors may appoint such other officers, committees or
agents, as the business of the Company may require, including one or more
Assistant Treasurers and one or more Assistant Secretaries, each of whom
shall hold office for such period, and have such authority and perform such
duties as are provided in these bylaws or as the Board of Directors may from
time to time determine. The Board of Directors may delegate to any officer
or committee the power to appoint and to remove any such subordinate officer
or agent.
29. Subject to the provisions of any written agreement, any officer may be
removed, either with or without cause, by a vote of the majority of the whole
Board of Directors at a regular meeting or a special meeting called for the
purpose. Any officer, except an officer elected by the Board of Directors,
may also be removed, with or without cause, by any committee or superior
officer upon whom such power of removal may be conferred by the Board of
Directors.
30. Subject to the provisions of any written agreement, any officer may
resign at any time by giving written notice to the Board of Directors, the
Chairman of the Board or the Secretary of the Company. Any such resignation
shall take effect at the time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
31. Except as otherwise provided in these bylaws, in the event any officer
shall be unable to perform the duties of the office held, whether by reason
of absence, disability or otherwise, the Chairman of the Board may designate
another officer of the Company to assume the duties of the officer who is
unable to carry out the duties of the office; in the event the Chairman of
the Board shall be absent and unable to perform the duties of the office of
Chairman of the Board, the Chairman of the Board shall designate another
officer to assume the duties of the Chairman of the Board; if another officer
has not been designated by the Chairman of the Board to assume the duties of
the Chairman of the Board, then the Board of Directors shall designate
another officer to assume the duties of the Chairman of the Board; in the
event the Chairman of the Board shall be disabled and unable to perform the
duties of the office of Chairman of the Board, then the Board of Directors
shall designate another officer to assume the duties of the Chairman of the
Board. Any officer designated to assume the duties of another officer shall
have all the powers of and be subject to all the restrictions imposed upon
the officer whose duties have been assumed.
32. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled for the unexpired portion
of the term in the manner prescribed by these bylaws for the regular
appointment or election to such office.
33. The Chairman of the Board shall be the chief executive officer of the
Company and shall have general supervision of the business and operations
of the Company, subject, however, to the control of the Board of Directors.
The Chairman of the Board shall preside at all meetings of the shareholders
and of the Board of Directors. The Chairman of the Board shall perform all
of the duties usually incumbent upon a chief executive officer of a
corporation and incident to the office of the Chairman of the Board. The
Chairman of the Board shall also have such powers and perform such duties
as are assigned by these bylaws and shall have such other powers and perform
such other duties, not inconsistent with these bylaws, as may from time to
time be assigned by the Board of Directors.
34. The Vice Chairman shall have such powers and perform such duties as are
assigned by these bylaws and shall have such other powers and perform such
other duties, not inconsistent with these bylaws, as from time to time may be
assigned by the Board of Directors or the Chairman of the Board.
35. The President shall have such powers and perform such duties as are
assigned by these bylaws and shall have such other powers and perform such
other duties, not inconsistent with these bylaws, as from time to time
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<PAGE>
may be assigned by the Board of Directors or the Chairman of the Board.
36. Each Vice President shall have such powers and perform such duties as
are assigned by these bylaws and shall have such other powers and perform
such other duties, not inconsistent with these bylaws, as from time to time
may be assigned by the Board of Directors or the Chairman of the Board.
37. The Treasurer shall have charge and custody of, and be responsible for,
all funds of the Company. The Treasurer shall regularly enter or cause to
be entered in books to be kept by the Treasurer or under the Treasurer's
direction for this purpose full and adequate account of all moneys received
or paid by the Treasurer for the account of the Company; the Treasurer shall
exhibit such books of account and records to any of the directors of the
Company at any time upon request at the office of the Company where such
books and records shall be kept and shall render a detailed statement of
these accounts and records to the Board of Directors as often as it shall
require the same. The Treasurer shall also have such powers and perform such
duties as are assigned the Treasurer by these bylaws and shall have such
other powers and perform such other duties, not inconsistent with these bylaws,
as from time to time may be assigned by the Board of Directors.
38. It shall be the duty of the Secretary to act as Secretary of all meetings
of the Board of Directors and of the shareholders of the Company, and to keep
the minutes of all such meetings in the proper book or books to be provided
for that purpose; the Secretary shall see that all notices required to be
given by or for the Company or the Board of Directors or any committee are
duly given and served; the Secretary shall be custodian of the seal of the
Company and shall affix the seal, or cause it to be affixed, to all documents,
the execution of which on behalf of the Company, under its seal shall have
been duly authorized in accordance with the provisions of these bylaws. The
Secretary shall have charge of the share records and also of the other books,
records, and papers of the Company relating to its organization and management
as a corporation and shall see that the reports, statements and other
documents required by law are properly kept and filed; and shall in general
perform all the duties usually incident to the office of Secretary. The
Secretary shall also have such powers and perform such duties as are assigned
by these bylaws, and shall have such other powers and perform such other
duties, not inconsistent with these bylaws, as from time to time may be
assigned by the Board of Directors.
39. The Controller shall perform the usual duties pertaining to the office of
the Controller. The Controller shall have charge of the supervision of the
accounting system of the Company, including the preparation and filing of
all reports required by law to be made to any public authorities and
officials, and shall also have such powers and perform such duties, not
inconsistent with these bylaws, as from time to time may be assigned by the
Board of Directors.
40. The Assistant Treasurers and the Assistant Secretaries shall have such
powers and perform such duties as are assigned to them by these bylaws and
shall have such other powers and perform such other duties, not inconsistent
with these bylaws, as from time to time may be assigned to them by the
Treasurer or the Secretary, respectively, or by the Board of Directors.
41. The compensation of the Chairman of the Board, Vice Chairman of the Board,
President, Vice President, Treasurer, Secretary and Controller shall be fixed
by the Board of Directors. The compensation of such other officers as may be
appointed in accordance with the provisions of these bylaws may be fixed by
the Chairman of the Board. No officer shall be prevented from receiving such
compensation by reason of also being a director of the Company.
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<PAGE>
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
42. The Board of Directors except as in these bylaws otherwise provided, may
authorize any officer or officers, agent or agents, in the name of and on
behalf of the Company, to enter into any contract or execute and deliver any
instrument, and such authority may be general or confined to specific
instances; and, unless so authorized by the Board of Directors or expressly
authorized by these bylaws, no officer or agent or employee shall have any
power or authority to bind the Company by any contract or engagement or to
pledge its credit or to render it pecuniarily liable for any purpose or to
any amount.
43. No loans shall be contracted on behalf of the Company and no negotiable
paper shall be issued in its name unless authorized by resolution of the
Board of Directors. When authorized by the Board of Directors, any officer
or agent of the Company thereunto authorized may effect loans and advances at
any time for the Company from any bank, trust company, or other institution,
or from any firm, corporation or individual, and for such loans and advances
may make, execute and deliver promissory notes, bonds, or other certificates
or evidences of indebtedness of the Company and, when authorized so to do,
may pledge, hypothecate or transfer any securities or other property of the
Company as security for any such loans or advances. Such authority may be
general or confined to specified instances.
44. All checks, drafts and other orders for the payment of moneys out of the
funds of the Company and all notes or other evidences of indebtedness of the
Company shall be signed on behalf of the Company in such manner as shall from
time to time be determined by resolution of the Board of Directors.
45. All funds of the Company not otherwise employed shall be deposited from
time to time to the credit of the Company in such banks, trust companies or
other depositories as the Board of Directors may select or as may be selected
by any officer or officers, agent or agents of the Company to whom such power
may from time to time be delegated by the Board of Directors; and for the
purpose of such deposit, the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President, the Treasurer, the Controller, the
Secretary or any other officer or agent or employee of the Company to whom
such power may be delegated by the Board of Directors, may endorse, assign
and deliver checks, drafts and other orders for the payment of moneys which
are payable to the order of the Company.
CERTIFICATES AND TRANSFERS OF SHARES.
46. The shares of the Company shall be represented by certificates or shall
be uncertificated. Each registered holder of shares, upon request to the
Company, shall be provided with a certificate of stock, representing the
number of shares owned by such holder. Certificates for shares of the Company
shall be in such form as shall be approved by the Board of Directors. Such
certificates shall be numbered and registered in the order in which they are
issued and shall be signed by the Chairman of the Board, the Vice Chairman
of the Board, the President or a Vice President and the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. Where any
such certificate is countersigned by a transfer agent, other than the Company
or its employee, or by a registrar, other than the Company or its employee,
any other signature on such certificate may be a facsimile, engraved, stamped
or printed. In the event that an officer whose facsimile signature appears
on such certificate ceases for any reason to hold the office indicated and
the Company or its transfer agent has on hand a supply of share certificates
bearing such officer's facsimile signature, such certificates may continue to
be issued and registered until such supply is exhausted.
47. Transfers of shares of the Company shall be made only on the books of the
Company by the holder thereof, or by the holder's attorney thereunto duly
authorized and on either the surrender of the certificate or certificates
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<PAGE>
for such shares properly endorsed or upon receipt of proper transfer
instructions from the registered owner of uncertificated shares. Every
certificate surrendered to the Company shall be marked "Cancelled," with the
date of cancellation, and no new certificate shall be issued in exchange
therefor until the old certificate has been surrendered and cancelled, except
as hereinafter provided. Uncertificated shares shall be cancelled and
issuance of new equivalent uncertificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
Company.
48. The holder of any shares of the Company shall immediately notify the
Company of any loss, destruction or mutilation of the certificate therefor
and the Company may issue a new certificate in the place of any certificate
theretofore issued by it alleged to have been lost, destroyed or mutilated.
The Board of Directors may, in its discretion, as conditions to the issue of
any such new certificate, require the owner of the lost or destroyed
certificate or the owner's legal representatives to make proof satisfactory
to the Board of Directors of the loss or destruction thereof and to give the
Company a bond in such form, in such sum and with such surety or sureties as
the Board of Directors may direct, to indemnify the Company against any claim
that may be made against it on account of any such certificate so alleged to
have been lost or destroyed.
DETERMINATION OF RECORD DATE.
49. In order that the Company may determine the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof
or entitled to receive payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix in advance a record date which shall
not be more than 60 nor less than 10 days before the date of such meeting nor
more than 60 days prior to any other action.
If no record date is fixed:
(i) The record date for determining shareholders entitled to notice of or to
vote at a meeting of shareholders shall be at the close of business on the
day next preceding the day on which notice is given, or if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held.
(ii) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
REGISTERED SHAREHOLDERS.
50. The Company shall be entitled to treat the holder of record of any share
or shares of stock as the holder in fact thereof and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of Delaware.
E-3-16
<PAGE>
FISCAL YEAR.
51. The fiscal year shall begin on the first day of January and end on the
thirty-first day of December in each year.
NOTICES.
52. Whenever under the provision of these bylaws notice is required to be
given to any director or shareholder, it shall be construed to mean personal
notice, but such notice may be given in writing, by mail, by depositing the
same in a post office or letter box, in a postpaid sealed wrapper, addressed
to such director or shareholder at such address as appears on the books of
the Company, or, in default of other address, to such director or shareholder,
at the General Post Office in the City of Wilmington, Delaware, and such
notice shall be deemed to be given at the time when the same shall be thus
mailed.
53. Any notice required to be given under these bylaws may be waived in
writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein.
AMENDMENTS.
54. Except as otherwise provided in the Certificate of Incorporation of the
Company and consistent therewith, these bylaws may be altered, amended or
repealed or new bylaws may be made by the affirmative vote of the holders
of record of a majority of the shares of the Company entitled to vote, at
any annual or special meeting, provided that such proposed action shall be
stated in the notice of such meeting, or, by a vote of the majority of the
whole Board of Directors, at any regular meeting without notice, or at any
special meeting provided that notice of such proposed action shall be stated
in the notice of such special meeting.
E-3-17
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
Exhibit 27 for Bristol-Myers Squibb Company for the period ended 9/30/98
</LEGEND>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 9-Mos
<FISCAL-YEAR-END> Dec-31-1998 <F1>
<PERIOD-END> Sep-30-1998
<CASH> 1531
<SECURITIES> 308
<RECEIVABLES> 3129 <F2>
<ALLOWANCES> 0
<INVENTORY> 1775
<CURRENT-ASSETS> 7720
<PP&E> 7221
<DEPRECIATION> 2973
<TOTAL-ASSETS> 14925
<CURRENT-LIABILITIES> 4645
<BONDS> 1314
0
0
<COMMON> 109
<OTHER-SE> 7438
<TOTAL-LIABILITY-AND-EQUITY> 14925
<SALES> 13399
<TOTAL-REVENUES> 13399
<CGS> 3549
<TOTAL-COSTS> 3549
<OTHER-EXPENSES> 2932
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 113
<INCOME-PRETAX> 3802
<INCOME-TAX> 1074
<INCOME-CONTINUING> 2728
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2728
<EPS-PRIMARY> 2.74
<EPS-DILUTED> 2.68
<FN>
<F1>Items reported as "zero" are not applicable or are immaterial to the
consolidated financial position of the Company.
<F2>Receivables are reported net of allowances for doubtful accounts.
</TABLE>
EXHIBIT 99
----------
Cautionary statement regarding forward looking statements made by the Company,
intended to have the benefit of the "safe harbor" provisions of the Private
Securities Litigation Reform Act of 1995.
The Company is hereby filing a cautionary statement identifying important
factors that could cause the Company's actual results to differ materially
from those projected in forward looking statements made by or on behalf of
the Company. There are several communications made by or on behalf of the
Company (including the Company's Annual Report to Stockholders and Form 10-K)
which contain statements relating to goals, plans and projections regarding
its financial position, results of operations, market position and product
development, among other things, which are based on current expectations that
involve inherit risks and uncertainties including factors that would delay,
divert or change one of them in the next several years.
These important factors include --
New government laws and regulations, such as (i) health care initiatives,
(ii) changes in the FDA and foreign regulatory approval processes which may
cause delays in approving new products, and (iii) tax changes such as the
phasing out or elimination of tax benefits heretofore available in the United
States and certain foreign countries.
Difficulties in developing new products; new products developed by competitors
which have lower prices or superior performance features or which are otherwise
competitive with the Company's current products; and generic competition as
the Company's products go off patent, as well as possible problems with
licensors.
Legal difficulties including negative results relating to patents; adverse
decisions in litigation including the breast implant cases and other product
liability cases; the inability to obtain adequate insurance with respect to
this type of liability; and recalls of pharmaceutical products or forced
closings of manufacturing plants.
Increasing pricing pressures worldwide from managed care buyers and
institutional and governmental purchasers; the impact of Year 2000 problems;
and changes of business and economic conditions including, but not limited to,
changes in interest rates and fluctuation of foreign currency exchange rates.
No assurance can be given that any goal or plan set forth in forward looking
statements can be achieved and readers are cautioned not to place undue
reliance on such statements, which speak only as of the date made. The Company
undertakes no obligation to release publicly any revisions to forward looking
statements as a result of future events or developments.
E-99-1
