Transaction Valuation*
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Amount of Filing Fee**
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$13,071,333,804.79
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$1,426,082.52
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*
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Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Value was calculated by adding (i) the product of (A) 53,322,904 outstanding shares (“Shares”) of common stock of MyoKardia, Inc. and (B) $225.00 (the “Offer Price”); (ii) the product of (A) 4,745,419 Shares subject to issuance pursuant to stock options granted and outstanding and (B) $182.41, which is the difference between the $225.00 per share tender offer price and $42.59, the average weighted exercise price of such options (all of which are “in-the-money”); (iii) the product of (A) outstanding restricted stock units in respect of 894,749 Shares subject to such restricted stock units with any applicable performance conditions deemed to be achieved at target performance (which is the same as at maximum performance) and (B) the Offer Price; and (iv) the product of (A) 30,000 Shares which are estimated to be subject to outstanding purchase rights under the MyoKardia, Inc. Amended and Restated Employee Stock Purchase Plan and (B) the Offer Price.
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**
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The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act, by multiplying the Transaction Valuation by 0.0001091.
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: None
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Filing Party: N/A
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Form of Registration No.: N/A
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Date Filed: N/A
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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☑
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Third-party offer subject to Rule 14d-1.
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Issuer tender offer subject to Rule 13e-4.
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Going-private transaction subject to Rule 13e-3.
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Amendment to Schedule 13D under Rule 13d-2.
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third Party Tender Offer)
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Item 10.
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Financial Statements.
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Item 12.
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Exhibits.
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Exhibit No.
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Description
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Offer to Purchase, dated as of October 19, 2020.
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Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9).
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Form of Notice of Guaranteed Delivery.
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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Summary Advertisement, as published in The Wall Street Journal on October 19, 2020.
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Joint Press Release of Bristol-Myers Squibb Company and MyoKardia, Inc. dated October 5, 2020 (incorporated by reference to Exhibit 99.1 of the Bristol-Myers Squibb Company Current Report on Form 8-K (File No. 001-01136) filed with the Securities and Exchange Commission on October 5, 2020).
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Investor Relations Presentation dated October 5, 2020 (incorporated by reference to Exhibit 99.2 of the first Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 5, 2020).
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Investor Relations Call Transcript dated October 5, 2020 (incorporated by reference to Exhibit 99.3 of the first Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 5, 2020).
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Transaction Infographic dated October 5, 2020 (incorporated by reference to Exhibit 99.4 of the first Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 5, 2020).
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Social Media Content dated October 5, 2020 (incorporated by reference to Exhibit 99.5 of the first Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 5, 2020).
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Enterprise Letter dated October 5, 2020 (incorporated by reference to Exhibit 99.6 of the first Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 5, 2020).
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Bristol-Myers Squibb Employee Q&A dated October 5, 2020 (incorporated by reference to Exhibit 99.7 of the first Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 5, 2020).
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Transcript of Interview with Bristol-Myers Squibb Chief Executive Officer dated October 5, 2020 (incorporated by reference to Exhibit 99.1 of the second Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 6, 2020).
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Exhibit No.
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Description
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Social Media Content dated October 5, 2020 (incorporated by reference to Exhibit 99.2 of the second Bristol-Myers Squibb Company Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on October 6, 2020).
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MyoKardia, Inc. Current Report on Form 8-K dated October 5, 2020 (incorporated by reference to the MyoKardia, Inc. Current Report on Form 8-K (File No. 001-37609) filed with the Securities and Exchange Commission on October 5, 2020).
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Email from Tassos Gianakakos, Chief Executive Officer of MyoKardia, Inc., to employees on October 5, 2020 (incorporated by reference to Exhibit 99.1 of the first MyoKardia, Inc. Solicitation/Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission on October 5, 2020).
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MyoKardia, Inc. Employee Q&A first used on October 5, 2020 (incorporated by reference to Exhibit 99.2 of the first MyoKardia, Inc. Solicitation/Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission on October 5, 2020).
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(b)
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Not applicable.
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Agreement and Plan of Merger, dated as of October 3, 2020, by and among Bristol-Myers Squibb Company, Gotham Merger Sub Inc. and MyoKardia, Inc. (incorporated by reference to Exhibit 2.1 of the MyoKardia, Inc. Current Report on Form 8-K (File No. 001-37609) filed with the Securities and Exchange Commission on October 5, 2020).
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Confidentiality Agreement, dated as of September 17, 2020, between Bristol-Myers Squibb Company and MyoKardia, Inc.
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Exclusivity Agreement, dated as of September 25, 2020, between Bristol-Myers Squibb Company and MyoKardia, Inc.
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Tender and Support Agreement, dated as of October 3, 2020, between Bristol-Myers Squibb Company, Gotham Merger Sub Inc., and Tassos Gianakakos.
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(g)
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Not applicable.
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(h)
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Not applicable.
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*
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Filed herewith
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GOTHAM MERGER SUB INC.
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By:
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/s/ Brian P. Heaphy
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Name:
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Brian P. Heaphy
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Title:
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Vice President
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BRISTOL-MYERS SQUIBB COMPANY
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By:
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/s/ Katherine R. Kelly
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Name:
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Katherine R. Kelly
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Title:
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Corporate Secretary
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If you are a record holder (i.e., a stock certificate or uncertificated stock in book-entry form has been issued to you), you must complete and sign the enclosed Letter of Transmittal, in accordance with the instructions provided therein, and send it with your stock certificate and any other documents required in the Letter of Transmittal to Equiniti Trust Company, the depositary for the Offer (the “Depositary”), or follow the procedures for book-entry transfer set forth in Section 3 of this Offer to Purchase. These materials must reach the Depositary prior to the expiration of the Offer. Detailed instructions are contained in the Letter of Transmittal and in “The Offer—Section 3—Procedures for Tendering Shares” of this Offer to Purchase.
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If you are a record holder and your stock is certificated but your stock certificate is not available or you cannot deliver it to the Depositary prior to the expiration of the Offer, you may be able to tender your Shares using the enclosed Notice of Guaranteed Delivery. Please call MacKenzie Partners, Inc., the information agent for the Offer, toll free, at 1-800-322-2885 for assistance. See “The Offer—Section 3—Procedures for Tendering Shares” for further details.
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If you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee, you must contact your broker, dealer, commercial bank, trust company or other nominee and give instructions that your Shares be tendered.
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the Offer is being made for all outstanding Shares solely for cash;
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as described above, we, through Parent and its controlled affiliates, have sufficient funds available to purchase all Shares validly tendered, and not withdrawn, in the Offer and to provide funding for the Merger, which is expected to occur as soon as practicable following (but in any event on the same day as) the Offer Acceptance Time (as defined below), subject to the satisfaction or waiver of the other conditions set forth in the Merger Agreement and in any event no later than one business day following the satisfaction or waiver of such conditions;
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consummation of the Offer is not subject to any financing condition; and
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if we consummate the Offer, we expect to acquire any remaining Shares for the same cash per Share price in the Merger.
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the number of Shares validly tendered (and not properly withdrawn) prior to the expiration of the Offer (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6) of the DGCL), together with the Shares then owned by Parent or Purchaser, does not represent at least one Share more than 50% of the then outstanding Shares (the “Minimum Condition”);
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any Restraint is in effect enjoining, making illegal or otherwise prohibiting consummation of the Offer or the Merger (the “Restraints Condition”); “Restraints” means any outstanding order, judgment, injunction, ruling, writ, stipulation, settlement, award, finding, determination or decree of any governmental authority enacted, promulgated, issued, entered, amended or enforced or deemed applicable by any governmental authority of competent jurisdiction or any applicable Law; “Law(s)” means laws (whether foreign, federal, state, provincial, local, municipal, common or otherwise), statutes, treaties, directives, ordinances, codes, acts, constitutions, conventions, executive orders, decrees, rules or regulations enacted, adopted, promulgated or applied by any governmental authority;
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there is an Action instituted or pending by a governmental authority of competent jurisdiction seeking any judgment (a) to prevent, prohibit or make illegal the consummation of the Offer or the Merger, (b) to prohibit Parent’s ability to vote, transfer, receive dividends or otherwise exercise full rights of ownership with respect to the stock of MyoKardia or (c) in connection with the Offer or the Merger, to prohibit, limit, restrain or impair in any material respect Parent’s ability to own, control, direct, manage, or operate or to retain or change any material portion of the assets, licenses, operations, rights, product lines, businesses or interests therein of MyoKardia or its subsidiaries or any of the material assets, licenses, operations, rights, product lines, businesses or interests therein of Parent or its subsidiaries (other than, in each case, a Divestiture Action (as defined below) required to be taken by Parent and Purchaser pursuant to the Merger Agreement) (the “Actions Condition”); an “Action” means any pending or threatened legal or administrative claim, audit, arbitration, proceeding, suit, charge, complaint, arbitration or action by or before any governmental authority;
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the waiting period (and any extension thereof) applicable to the consummation of the Offer or the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”) has neither expired nor has early termination thereof been granted or there is in effect any voluntary agreement between Parent, Purchaser or MyoKardia and the Federal Trade Commission or the Department of Justice pursuant to which Parent, Purchaser or MyoKardia will not consummate the Merger for any period of time (the “Governmental Consents Condition”);
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there is an inaccuracy in the representations and warranties made by MyoKardia in the Merger Agreement, subject to the materiality and other qualifications set forth in the Merger Agreement, as described in more detail in “The Offer—Section 15—Conditions to the Offer”;
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MyoKardia has not complied with or performed in all material respects its obligations required to be complied with or performed by it prior to the scheduled Expiration Time under the Merger Agreement; and
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since the date of the Merger Agreement there has been a Material Adverse Effect (as defined in the Merger Agreement and described in more detail in “The Offer—Section 15—Conditions to the Offer”) that is continuing as of the scheduled Expiration Time.
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determining that the Merger Agreement and the Transactions are advisable, fair to and in the best interests of MyoKardia and its stockholders;
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authorizing and approving the execution, delivery and performance by MyoKardia of the Merger Agreement and the consummation by MyoKardia of the Transactions;
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resolving that the Merger will be effected under Section 251(h) of the DGCL and that the Merger will be consummated as soon as practicable following the Offer Acceptance Time; and
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recommending that MyoKardia’s stockholders accept the Offer and tender their Shares in the Offer.
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If you are a record holder (i.e., a stock certificate or uncertificated stock in book-entry form has been issued to you), you must complete and sign the enclosed Letter of Transmittal, in accordance with the instructions provided therein, and send it with your stock certificates and any other documents required in the Letter of Transmittal to the Depositary or follow the procedures for book-entry transfer set forth in Section 3 of this Offer to Purchase. These materials must reach the Depositary prior to the expiration of the Offer. Detailed instructions are contained in the Letter of Transmittal and in “The Offer—Section 3—Procedures for Tendering Shares.”
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If you are a record holder and your stock is certificated, but your stock certificate is not available or you cannot deliver it to the Depositary prior to the expiration of the Offer, you may be able to tender your Shares using the enclosed Notice of Guaranteed Delivery. Please call MacKenzie Partners, Inc., the Information Agent, toll free, at 1-800-322-2885 or by email at tenderoffer@mackenziepartners.com for assistance. See “The Offer—Section 3—Procedures for Tendering Shares” for further details.
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If you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee, you must contact your broker, dealer, commercial bank, trust company or other nominee and give instructions that your Shares be tendered.
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Terms of the Offer
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Acceptance for Payment and Payment for Shares
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Procedures for Tendering Shares
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such tender is made by or through an Eligible Institution;
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a properly completed and duly executed Notice of Guaranteed Delivery in the form provided by Purchaser with this Offer to Purchase is received by the Depositary by the Expiration Time; and
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the certificates for all such tendered Shares (or a confirmation of a book-entry transfer of such Shares into the Depositary’s account at the Book-Entry Transfer Facility), together with a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof) together with any required signature guarantee (or an Agent’s Message) and any other required documents, are received by the Depositary within two NASDAQ trading days after the date of execution of the Notice of Guaranteed Delivery.
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Withdrawal Rights
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Material U.S. Federal Income Tax Consequences
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a financial institution or insurance company;
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a mutual fund;
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a pass-through entity or investors in such entity;
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a tax-exempt organization;
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a dealer or broker in securities;
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a person whose functional currency is not the U.S. dollar;
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a former citizen or former long-term resident of the United States;
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a regulated investment company or real estate investment trust;
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a stockholder that holds its Shares through individual retirement or other tax-deferred accounts;
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a trader in securities who elects to apply a mark-to-market method of accounting;
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a stockholder that holds Shares as part of a hedge, appreciated financial position, straddle, or conversion or integrated transaction;
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a stockholder that acquired Shares through the exercise of compensatory options or stock purchase plans or otherwise as compensation;
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a U.S. expatriate or entity covered by the anti-inversion rules under the Code;
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a person who actually or constructively owns more than 5% of the Shares;
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a person who holds both Shares and Bristol-Myers Squibb common stock;
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a stockholder that entered into the Support Agreement as part of the transactions described in this Offer to Purchase;
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a person subject to special tax accounting rules (including rules requiring recognition of gross income based on a taxpayer’s applicable financial statement); and
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a person subject to the base erosion and anti-abuse tax.
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an individual who is a citizen or resident of the United States;
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a corporation, or other entity or arrangement taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States or any state therein or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
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a trust (a) that is subject to the primary supervision of a court within the United States and all the substantial decisions of which are controlled by one or more U.S. persons or (b) that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
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the gain, if any, on Shares is effectively connected with the conduct by the Non-U.S. Holder of a trade or business in the United States (and, if certain income tax treaties apply, is attributable to the Non-U.S. Holder’s permanent establishment in the United States); or
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the Non-U.S. Holder is an individual who was present in the United States for 183 days or more in the taxable year of sale and certain other conditions are met.
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Price Range of Shares; Dividends
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High
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Low
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2018
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First Quarter
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$62.83
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$41.00
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Second Quarter
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$52.00
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$41.90
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Third Quarter
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$67.45
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$49.35
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Fourth Quarter
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$67.79
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$44.99
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2019
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First Quarter
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$56.03
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$39.01
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Second Quarter
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$54.67
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$44.68
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Third Quarter
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$61.88
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$47.53
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Fourth Quarter
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$74.98
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$50.49
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2020
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First Quarter
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$78.28
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$43.50
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Second Quarter
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$126.30
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$42.65
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Third Quarter
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$139.22
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$88.60
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Fourth Quarter (through October 16, 2020)
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$224.00
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$136.83
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Possible Effects of the Offer on the Market for the Shares; Stock Exchange Listing; Registration under the Exchange Act; Margin Regulations
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Certain Information Concerning MyoKardia
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Certain Information Concerning Purchaser and Parent
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Source and Amount of Funds
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Background of the Offer; Contacts with MyoKardia
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Purpose of the Offer; Plans for MyoKardia; Stockholder Approval; Appraisal Rights
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within the later of the consummation of the Offer and 20 days after the mailing of the Schedule 14D-9, deliver to MyoKardia a written demand for appraisal of Shares held, which demand must reasonably inform MyoKardia of the identity of the stockholder and that the stockholder is demanding appraisal;
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not tender their Shares in the Offer;
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continuously hold of record the Shares from the date on which the written demand for appraisal is made through the Merger Effective Time; and
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strictly follow the statutory procedures for perfecting appraisal rights under Section 262 of the DGCL.
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The Transaction Documents
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other than transactions among MyoKardia and its wholly owned subsidiaries or among MyoKardia’s wholly owned subsidiaries and certain transactions with respect to MyoKardia Stock Options, MyoKardia RSU Awards, MyoKardia PSU Awards or the MyoKardia ESPP, (a) issue, sell, pledge, dispose of, encumber or grant any shares of its capital stock or other equity or voting interests, or any other securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of its capital stock or other equity or voting interests, or any rights, warrants or options to purchase any shares of its capital stock or other equity or voting interests or (b) redeem, purchase or otherwise acquire any of its outstanding shares of capital stock or other equity or voting interests, or any rights, warrants or options to acquire any shares of its capital stock or other equity or voting interests;
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establish a record date for, declare, set aside for payment, authorize or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock or other equity or voting interests, other than dividends paid by any wholly owned subsidiary of MyoKardia to MyoKardia or any other wholly owned subsidiary of MyoKardia;
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split, combine, subdivide or reclassify any shares of its capital stock or other equity or voting interests, except for any such transaction by a wholly owned subsidiary of MyoKardia which remains a wholly owned subsidiary after consummation of such transaction;
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incur, assume, or otherwise become liable for any indebtedness or guarantee any indebtedness of another person, except for intercompany indebtedness among MyoKardia and its wholly owned subsidiaries, letters of credit entered into in the ordinary course of business in connection with certain intercompany agreements among MyoKardia and its wholly owned subsidiaries with respect to real property (“Company Lease”), and other indebtedness not to exceed $10,000,000 in the aggregate;
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enter into any swap or hedging transaction or other derivative agreements other than in the ordinary course of business;
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make any loans, capital contributions or advances to any person other than to MyoKardia or any wholly owned subsidiary of MyoKardia;
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other than certain exceptions, sell, assign, license, transfer or lease to any person, or mortgage or otherwise encumber or subject to any lien, in a single transaction or series of related transactions, any of its properties or assets that have a current value in excess of $10,000,000 in the aggregate;
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make or authorize capital expenditures for property, plant and equipment, except (a) as contemplated by the capital expenditure budget of MyoKardia set forth on the MyoKardia Disclosure Letter, or (b) otherwise in an aggregate amount for all such capital expenditures made pursuant to this clause (b) not to exceed $10,000,000;
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make (a) any acquisition (including by merger) of the capital stock or a material portion of the assets of any other person (other than any acquisition of supplies, raw materials, inventory or products in the ordinary course of business) or (b) any capital contributions or investments (including through any loans or advances) in any other person (other than MyoKardia or any direct or indirect wholly owned subsidiary of MyoKardia), except for investments in short-term marketable securities in the ordinary course of business;
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except as required pursuant to the terms of the Company Plans (as defined below) as in effect on the date of the Merger Agreement and set forth on the MyoKardia Disclosure Letter and made available to Parent, (a) increase the level of base compensation, wages, bonuses, incentive compensation, pension, severance or termination pay or any other compensation or benefits, payable or to become payable to any current or former director, officer or employee of MyoKardia or any of its subsidiaries at the Executive Director level or above, (b) establish, adopt, enter into, terminate or amend in any respect any (i) collective bargaining agreement or any other contract with any labor union, works council or other labor organization, or (ii) Company Plan (or any benefit or compensation plan, policy, program, contract, agreement or arrangement that would be a Company Plan if in effect on the date of the Merger Agreement), (c) take any action to accelerate any rights or benefits under any Company Plan, including any action to accelerate the vesting or funding or payment of any compensation or benefit to any current or former director, officer, employee or independent contractor of MyoKardia or any of its subsidiaries, (d) hire any individual to be employed by MyoKardia or any of its subsidiaries at the Executive Director level or above or terminate (other than for cause) the employment of any individual employed by MyoKardia or any of its subsidiaries at the Vice President level or above, (e) (i) pay any compensation, including any retention or transaction bonus (provided that, the foregoing will not restrict the continued payment of base salary in the ordinary course of business consistent with past practice and the payment of compensation expressly permitted by the Merger Agreement), or (ii) provide any benefits, in each case, to any current or former director, officer, employee or independent contractor of MyoKardia or any of its subsidiaries, unless, in the case of each of (e)(i) and (e)(ii), required by any Company Plan (as in effect on the date hereof) that is either (A) set forth on the MyoKardia Disclosure Letter and made available to Parent or (B) immaterial and not required to be set forth on the MyoKardia Disclosure Letter, (f) promote or change the employee grade or title of any
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make any material changes in financial accounting methods, principles or practices materially affecting the consolidated assets, liabilities or results of operations of MyoKardia and its subsidiaries, except insofar as may be required (a) by GAAP, (b) by Regulation S-X under the Securities Act, or (c) by any governmental authority or quasi-governmental authority (including the Financial Accounting Standards Board or any similar organization);
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amend MyoKardia’s certificate of incorporation or bylaws or the comparable organizational documents of any subsidiary of MyoKardia;
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settle, or offer or propose to settle, any action made or pending against MyoKardia or any of its subsidiaries, other than the settlement of any action in the ordinary course of business that require payments by MyoKardia or any of its subsidiaries (net of insurance proceeds) in an amount not to exceed $500,000 individually or $1,000,000 in the aggregate; provided, however, that the foregoing clause will not permit MyoKardia or any of its subsidiaries to (a) settle any action that would involve injunctive or equitable relief, impose any restrictions on the business or operations of MyoKardia or any of its subsidiaries (or, following the Merger, on Parent or any of its affiliates), involve any admission of any wrongdoing by MyoKardia or any of its subsidiaries, or involve any license, cross license or similar arrangement with respect to intellectual property or (b) settle or propose to settle any Transaction Litigations (as defined below), the treatment of which is addressed in the Merger Agreement;
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(a) make, change or revoke any material tax election; (b) change any annual tax accounting period; (c) adopt or change any material method of tax accounting; (d) file any material amended tax Return; (e) consent to any extension or waiver of the limitation period applicable to any material tax claim or assessment; (f) enter into any tax allocation, indemnity or sharing agreement (other than any such agreement entered into in the ordinary course of business the primary purpose of which does not relate to taxes); (g) enter into any material closing agreement with respect to taxes; or (h) settle or surrender any material tax claim, audit or assessment;
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(a) enter into, modify in any material respect, amend in any material respect, terminate (other than expirations in accordance with their terms) or waive any material rights or claims under certain material contracts (“Material Contracts”) set forth in the Merger Agreement, (b) other than in the ordinary course of business, enter into, modify in any material respect, amend in any material respect, terminate (other than expirations in accordance with their terms) or waive any material rights or claims under any other Material Contract, or (c) exercise any options under any Material Contract relating to any material “co-funding”, “co-commercialization” or similar cost-and-profit participation rights (whether an exercise to “opt in” or “opt out” of such rights) with respect to any product to which such Material Contract relates;
|
•
|
enter into, fail to renew, amend or terminate in any material respect any Company Lease;
|
•
|
(a) sell, assign, transfer, convey, license (as licensor), waive rights, fail to maintain or otherwise dispose of any material intellectual property, except for non-exclusive licenses of intellectual property granted to third parties, customers or distributors of MyoKardia or any of its subsidiaries that are entered into in the ordinary course of business consistent with past practice, (b) fail to diligently prosecute or maintain any material intellectual property registrations or fail to exercise a right of renewal or extension under any contract relating to, or with respect to, any material intellectual property or (c) disclose any trade secrets of MyoKardia or any of its subsidiaries (other than pursuant to written confidentiality agreements entered into in the ordinary course of business or an Acceptable Confidentiality Agreement as permitted under the Merger Agreement); the “Acceptable Confidentiality Agreement” means any confidentiality agreement entered into by MyoKardia either before or after the date of the Merger Agreement that contains provisions that are not materially less favorable in the aggregate to MyoKardia than those contained in the Confidentiality Agreement (as defined below) (it being agreed that such confidentiality agreement need not prohibit the making of a private Takeover Proposal (as defined below) to the MyoKardia Board or
|
•
|
adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring or other reorganization of MyoKardia or any of its subsidiaries;
|
•
|
qualify a new site for the manufacture of any product, other than in the ordinary course of business consistent with past practice;
|
•
|
enter into or amend any interested party transaction; or
|
•
|
authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.
|
•
|
immediately cease any solicitation, discussions or negotiations with any persons that may be ongoing with respect to a Takeover Proposal (as defined below), cease providing any information with respect to MyoKardia and its subsidiaries to such person, and request the prompt return or destruction of all confidential information concerning MyoKardia and its subsidiaries in such person’s possession or control;
|
•
|
MyoKardia and its Representatives may contact such person or group of persons making the Takeover Proposal solely to clarify the terms and conditions thereof or to request that such Takeover Proposal made orally be made in writing and;
|
•
|
if the MyoKardia Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (as defined below), and that failure to take such action would be inconsistent with its fiduciary duties under applicable Law, then MyoKardia and any of its Representatives may (a) enter into an Acceptable Confidentiality Agreement with the person or group of persons making the Takeover Proposal and furnish pursuant to such Acceptable Confidentiality Agreement information (including non-public information) with respect to MyoKardia and its subsidiaries to the person or group of persons who has made such Takeover Proposal and its or their respective Representatives; provided that MyoKardia will substantially concurrently provide to Parent any non-public information concerning MyoKardia or any of its subsidiaries that is provided to any person given such access which was not previously provided to Parent or its Representatives and (b) following the execution of an Acceptable Confidentiality Agreement, engage in or otherwise participate in discussions or negotiations regarding such Takeover Proposal with the person or group of persons making such Takeover Proposal and its or their Representatives.
|
•
|
determining that the Merger Agreement and the Transactions are advisable, fair to and in the best interests of MyoKardia and its stockholders;
|
•
|
authorizing and approving the execution, delivery and performance by MyoKardia of the Merger Agreement and the consummation by MyoKardia of the Transactions;
|
•
|
resolving that the Merger will be effected under Section 251(h) of the DGCL and that the Merger will be consummated as soon as practicable following the Offer Acceptance Time; and
|
•
|
resolving to recommend that MyoKardia’s stockholders accept the Offer and tender their Shares in the Offer (such recommendation, the “MyoKardia Board Recommendation”).
|
•
|
No outstanding order, judgment, injunction, ruling, writ, stipulation, settlement, award, finding, determination or decree of any governmental authority enacted, promulgated, issued, entered, amended or enforced or deemed applicable by any governmental authority of competent jurisdiction or any applicable Law (“Restraints”) will be in effect enjoining, making illegal or otherwise prohibiting consummation of the Merger; and
|
•
|
Purchaser will have accepted for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer.
|
•
|
by mutual written consent of Parent and MyoKardia;
|
•
|
by either Parent or MyoKardia:
|
•
|
(a) if (i) the Offer Acceptance Time has not occurred on or prior to March 3, 2021; provided that, if as of five business days prior to such date, any of (A) the Restraints Condition (if the Restraint relates to an Antitrust Law), (B) the Actions Conditions (if the Action relates to an Antitrust Law) and (C) the Governmental Consents Condition has not been satisfied or waived (to the extent permitted by the Merger Agreement and applicable Law), then Parent or MyoKardia may extend the Outside Date to April 1, 2021 (March 3, 2021, or as such date may be so extended, the “Outside Date”) or (ii) the Offer has expired pursuant to its terms and the terms of the Merger Agreement (after giving effect to any extensions thereof in accordance with the Merger Agreement) without Purchaser having accepted for payment the Shares validly tendered and not properly withdrawn pursuant to the Offer in accordance with the Merger Agreement on account of the failure to satisfy the Minimum Condition; provided that the right to terminate the Merger Agreement under this clause (a) (such right, the “Outside Date Termination Right”) will not be available to any party to the Merger Agreement if the breach by such party of its representations and warranties set forth in the Merger Agreement or the failure of such party to perform any of its obligations under the Merger Agreement has been a principal cause of or primarily resulted in the events specified in this clause (a) (it being understood that Parent and Purchaser will be deemed a single party for purposes of the foregoing proviso); or
|
•
|
(b) if any Restraint enjoining, making illegal or otherwise prohibiting consummation of the Offer or the Merger is in effect and has become final and nonappealable; provided that the right to terminate the Merger Agreement under this clause (b) will not be available to any party whose breach of the Merger Agreement has been a principal cause of or primarily resulted in the entry of such Restraint or that has failed to use the required efforts to remove such Restraint in accordance with its obligations set forth in the Merger Agreement (it being understood that Parent and Purchaser will be deemed a single party for purposes of the foregoing proviso); or
|
•
|
by Parent:
|
•
|
(a) if MyoKardia has breached any of its representations or warranties or failed to perform any of its covenants or agreements set forth in the Merger Agreement, which breach or failure to perform (i) would give rise to the failure of the Representations Condition or the Compliance Condition and (ii) is incapable of being cured prior to the Outside Date, or if capable of being cured by the Outside Date, MyoKardia has not cured the breach or failure to perform within thirty calendar days (but in no event later than the Outside Date) following receipt by MyoKardia of written notice of such breach or failure to perform from Parent; provided that Parent will not have the right to terminate the Merger Agreement pursuant to this clause (a) (such right, the “Parent Termination Right”) if Parent or Purchaser is then in breach of any of its representations, warranties, covenants or agreements hereunder such that MyoKardia has the right to terminate the Merger Agreement; or
|
•
|
(b) if the MyoKardia Board or a committee thereof has made an Adverse Recommendation Change (such right to terminate the Merger Agreement pursuant to this clause (b), the “Adverse Recommendation Change Termination Right”); or
|
•
|
by MyoKardia:
|
•
|
(a) if Parent or Purchaser has breached any of its representations or warranties or failed to perform any of its covenants or agreements set forth in the Merger Agreement, which breach or failure to perform (i) would give rise to any effect, change, event, fact, circumstance or occurrence that, individually or in the aggregate, would reasonably be expected to prevent or materially delay or materially impair the consummation by Parent or Purchaser of any of the Transactions (a “Parent Material Adverse Effect”) and (ii) is incapable of being cured prior to the Outside Date, or if capable of being cured by the Outside Date, Parent and Purchaser have not cured the breach or failure to perform within thirty calendar days (but in no event later than the Outside Date) following receipt by Parent or Purchaser of written notice of such breach or failure to perform from MyoKardia; provided that MyoKardia will not have the right to terminate the Merger Agreement pursuant to this clause (a) if MyoKardia is then in breach of any of its representations, warranties, covenants or agreements hereunder such that Parent has the right to terminate the Merger Agreement;
|
•
|
(b) if the MyoKardia Board has authorized MyoKardia to substantially concurrently enter into a Company Acquisition Agreement providing for a Superior Proposal in accordance with the Merger Agreement; provided that such termination will not be valid unless prior to or substantially concurrently with such termination MyoKardia pays the MyoKardia Termination Fee (such right to terminate the Merger Agreement pursuant to this clause (b), the “Superior Proposal Termination Right”); or
|
•
|
(c) if Purchaser fails to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer in accordance with the Merger Agreement on or prior to the tenth business day following the date of the Merger Agreement or if Purchaser fails to accept for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer when required to do so in accordance with the terms of the Merger Agreement; provided, however, that the right to terminate the Merger Agreement pursuant to this clause (c) will not be available to MyoKardia if MyoKardia is in breach of any provision of the Merger Agreement that has been a principal cause of or primarily resulted in the events specified in this clause (c).
|
•
|
(a) the Merger Agreement is terminated (i) by MyoKardia or Parent pursuant to the Outside Date Termination Right (provided that (A) at the time of any such termination, all of the Restraints Condition, the Actions Condition and the Governmental Consents Condition are satisfied and the Minimum Condition is not satisfied, and (B) with respect to any such termination by MyoKardia, the Outside Date Termination Right is then available to Parent) or by Parent pursuant to the Parent Termination Right resulting from a Willful and Material Breach of the Merger Agreement by MyoKardia, (ii) a bona fide Takeover Proposal has been publicly made or otherwise communicated or delivered to the MyoKardia Board and has become publicly known after the date of the Merger Agreement and prior to such termination, and such Takeover Proposal has not been irrevocably withdrawn in good faith prior to such termination, and (iii) within twelve months of the date the Merger Agreement is so terminated, MyoKardia (A) enters into a Company Acquisition Agreement with any person or persons with respect to any Takeover Proposal and such Takeover Proposal is subsequently consummated or (B) consummates any Takeover Proposal; provided that, for purposes of sub-clauses (ii) and (iii) of this clause (a), the references to “20%” in the definition of Takeover Proposal will be deemed to be references to “50%”; or
|
•
|
(b) the Merger Agreement is terminated (i) by Parent pursuant to the Adverse Recommendation Change Termination Right or (ii) by MyoKardia pursuant to the Superior Proposal Termination Right.
|
Dividends and Distributions
|
•
|
other than transactions among MyoKardia and its wholly owned subsidiaries or among MyoKardia’s wholly owned subsidiaries, redeem, purchase or otherwise acquire any of its outstanding shares of capital stock or other equity or voting interests, or any rights, warrants or options to acquire any shares of its capital stock or other equity or voting interests, other than pursuant to the cashless exercise of MyoKardia Stock Options or the forfeiture or withholding of taxes with respect to MyoKardia Stock Options, MyoKardia RSU Awards, MyoKardia PSU Awards or options granted under the MyoKardia ESPP;
|
•
|
establish a record date for, declare, set aside for payment, authorize or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock or other equity or voting interests, other than dividends paid by any wholly owned subsidiary of MyoKardia to MyoKardia or any other wholly owned subsidiary of MyoKardia; or
|
•
|
split, combine, subdivide or reclassify any shares of its capital stock or other equity or voting interests, except for any such transaction by a wholly owned subsidiary of MyoKardia which remains a wholly owned subsidiary after consummation of such transaction.
|
Conditions to the Offer
|
(a)
|
the number of Shares validly tendered (and not properly withdrawn) prior to the expiration of the Offer (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6) of the General Corporation Law of the State of Delaware (the “DGCL”)), together with the Shares then owned by Parent or Purchaser, does not represent at least one Share more than 50% of the then outstanding Shares (the “Minimum Condition”);
|
(b)
|
any Restraint is in effect enjoining, making illegal or otherwise prohibiting consummation of the Offer or the Merger (the “Restraints Condition”);
|
(c)
|
there is an Action instituted or pending by a governmental authority of competent jurisdiction seeking any judgment (i) to prevent, prohibit or make illegal the consummation of the Offer or the Merger, (ii) to prohibit Parent’s ability to vote, transfer, receive dividends or otherwise exercise full rights of ownership with respect to the stock of MyoKardia or (iii) in connection with the Offer or the Merger, to prohibit, limit, restrain or impair in any material respect Parent’s ability to own, control, direct, manage, or operate or to retain or change any material portion of the assets, licenses, operations, rights, product lines, businesses or interests therein of MyoKardia or its subsidiaries or any of the material assets, licenses, operations, rights, product lines, businesses or interests therein of Parent or its subsidiaries (other than, in each case, a divestiture action required to be taken by Parent and Purchaser pursuant to the Merger Agreement) (the “Actions Condition”); an “Action” means any pending or threatened legal or administrative claim, audit, arbitration, proceeding, suit, charge, complaint, arbitration or action by or before any governmental authority;
|
(d)
|
the waiting period (and any extension thereof) applicable to the consummation of the Offer or the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”) has neither expired nor has early termination thereof been granted or there is in effect any voluntary agreement between Parent, Purchaser or MyoKardia and the Federal Trade Commission or the Department of Justice pursuant to which Parent, Purchaser or MyoKardia will not consummate the Merger for any period of time (the “Governmental Consents Condition”);
|
(e)
|
certain representations and warranties of MyoKardia set forth in the Merger Agreement (i) relating to capitalization are not true and correct in all respects as of the date of the Merger Agreement and as of the scheduled Expiration Time, with the same effect as though made as of the scheduled Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except for de minimis inaccuracies, (ii) relating to organization, standing, authority, noncontravention, rights agreement, anti-takeover provisions, opinions of financial advisor, brokers and other advisors are not true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) in all material respects as of the date of the Merger Agreement and as of the scheduled Expiration Time with the same effect as though made as of the scheduled Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (iii) relating to absence of certain changes are not true and correct in all respects as of the date thereof, or (iv) set forth in the Merger Agreement, other than those specifically identified in clauses (i), (ii) and (iii) of this paragraph (e), are not true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the date of the Merger Agreement and as of the scheduled Expiration Time with the same effect as though made as of the scheduled Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iv), where the failure to be true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect that is continuing as of the scheduled Expiration Time (the “Representations Condition”);
|
(f)
|
MyoKardia has not have complied with or performed in all material respects its obligations required to be complied with or performed by it prior to the scheduled Expiration Time under the Merger Agreement (the “Compliance Condition”);
|
(g)
|
since the date of the Merger Agreement there has been any effect, change, event, fact, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect that is continuing as of the scheduled Expiration Time;
|
(h)
|
Parent has not have received a certificate signed on behalf of MyoKardia by an executive officer of MyoKardia certifying that none of the conditions in the above clauses (e), (f) and (g) has occurred and is continuing; and
|
(i)
|
the Merger Agreement has been terminated in accordance with its terms (the “Termination Condition”).
|
Certain Legal Matters; Regulatory Approvals
|
Fees and Expenses
|
Miscellaneous
|
|
Name
|
| |
Current Principal Occupation or Employment
and Five-Year Employment History
|
| |
Country of
Citizenship
|
|
|
Giovanni Caforio, M.D.*
|
| |
Dr. Caforio has served as Chairman of the Board since May 2017 and Chief Executive Officer since May 2015. He has been a director since 2014. He served as Chief Operating Officer from June 2014 to May 2015, Executive Vice President and Chief Commercial Officer from November 2013 to June 2014, President, U.S. from October 2011 to November 2013, Senior Vice President, Global Commercialization and Immunology from May 2010 to October 2011, Senior Vice President, Oncology, U.S. and Global Commercialization from March 2009 to May 2010, Senior Vice President, U.S. Oncology from January 2007 to March 2009, Senior Vice President, European Marketing and Brand Commercialization from May 2004 to January 2007.
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| |
USA and Italy
|
|
|
Vicki L. Sato, Ph.D.*
|
| |
Dr. Sato is a Lead Independent Director. She has served as a director since 2006. She has served as Chairman of the Board of Denali Therapeutics, Inc. since August 2016 and a director of that company since April 2015. She served as Professor of management practice at the Harvard Business School from July 2005 to June 2017 and Professor of the practice of molecular and cell biology at Harvard University from July 2005 to October 2014.
|
| |
USA
|
|
|
Peter J. Arduini*
|
| |
Mr. Arduini has served as a director since 2016. He has served as President and Chief Executive Officer at Integra LifeSciences Holdings Corporation, a global medical technology company since January 2012 and President and Chief Operating Officer at that company from November 2010 to January 2012. He served as Corporate Vice President and President of Medication Delivery at Baxter Healthcare from 2005 to 2010.
|
| |
USA
|
|
|
Robert Bertolini*
|
| |
Mr. Bertolini has served as a director since 2017. He served as President and Chief Financial Officer of Bausch & Lomb Incorporated from February 2013 to August 2013. Prior to that, he served as Executive Vice President and Chief Financial Officer at Schering Plough Corp. through its merger with Merck & Co., Inc. from November 2003 to November 2009.
|
| |
USA
|
|
|
Name
|
| |
Current Principal Occupation or Employment
and Five-Year Employment History
|
| |
Country of
Citizenship
|
|
|
Michael W. Bonney*
|
| |
Mr. Bonney has served as a director since 2019. He previously served as Chief Executive Officer and Chairman of Kaleido Biosciences, Inc. from June 2017 to August 2018 and has served as the Executive Chair of the Board of that company since August 2018. Prior to that, Mr. Bonney was Partner of Third Rock Ventures, LLC from January 2016 to July 2016. Before that, he was Chief Executive Officer and a member of the Board of Directors of Cubist Pharmaceuticals Inc. until it was acquired by Merck & Co., Inc. from June 2003 to December 2014. Mr. Bonney served as Chair of the Board of Trustees of Bates college from 2010 to 2019.
|
| |
USA
|
|
|
Matthew W. Emmens*
|
| |
Mr. Emmens has served as a director since 2017. From 2003 to 2008, he served as Chief Executive Officer of Shire PLC and subsequently served as Chairman of the Board from 2008 to 2014. Mr. Emmens was also Chairman, President and Chief Executive Officer of Vertex Pharmaceuticals Incorporated from 2009 to 2012. Before that, he served as President, Worldwide Pharmaceuticals of Merck KGaA from 1999 to 2003. Prior to that, he was Chief Executive Officer, Commercial Operations of Astra Merck Inc. from 1992 to 1999.
|
| |
USA
|
|
|
Julia A. Haller, M.D.*
|
| |
Dr. Haller has served as a director since 2019. Dr. Haller has served as Ophthalmologist-in-Chief of Wills Eye Hospital in Philadelphia, PA, where she holds the William Tasman, M.D. Endowed Chair since 2007. She is currently Professor and Chair of the Department of Ophthalmology at Sidney Kimmel Medical College at Thomas Jefferson University and Thomas Jefferson University Hospitals. Prior to that she was a member of the Johns Hopkins faculty, where she held the Katharine Graham Chair in Ophthalmology until 2007.
|
| |
USA
|
|
|
Dinesh C. Paliwal*
|
| |
Mr. Paliwal has served as a director since 2013. He served as President and Chief Executive Officer at Harman International from 2007 to April 2020 and served as Chairman of that company from July 2008 until March 2017. Mr. Paliwal is currently serving as Senior Advisor to the Harman International board of directors and chief executive officer until December 2020. Prior to that, Mr. Paliwal was a member of the Group Executive Committee of ABB Ltd. from January 2001 to June 2007, President of Global Markets and Technology of that company from January 2006 to June 2007, Chairman and Chief Executive Officer of ABB North America from January 2004 to June 2007, and served as President and Chief Executive Officer of ABB Automation Technologies Division from October 2002 to December 2005.
|
| |
USA
|
|
|
Name
|
| |
Current Principal Occupation or Employment
and Five-Year Employment History
|
| |
Country of
Citizenship
|
|
|
Paula A. Price*
|
| |
Ms. Price has served as a director since September 2020. Most recently, she served as Executive Vice President and Chief Financial Officer of Macy’s, Inc. until May 2020. She currently remains an advisor to the renowned retailer. Prior to that, she was a full-time Senior Lecturer for Harvard Business School in the Accounting and Management Unit from 2014 - 2018. Before that, Ms. Price also served as EVP and CFO for Ahold USA, Controller and Chief Accounting Officer (CAO) of CVS Caremark Corporation, and in senior leadership positions at JPMorgan Chase, Prudential Financial, Diageo, and Kraft Foods. A Certified Public Accountant (CPA), she began her career at Arthur Andersen & Co. Ms. Price currently serves on the Boards of Directors of Accenture plc and Western Digital Corp. She previously served on the Board of Directors of Dollar General Corporation.
|
| |
USA
|
|
|
Derica W. Rice*
|
| |
Mr. Rice has served as a director since September 2020. From March 2018 to February 2020, he served as EVP of CVS Health and President of its pharmacy benefits management (PBM) business, CVS Caremark, where he led the PBM business. Prior to that, he served as the EVP of global services and CFO for Eli Lilly and Company from 2006 to 2017. He is currently a member of The Walt Disney Company’s Board of Directors and previously served on the Board of Directors of Target Corporation.
|
| |
USA
|
|
|
Theodore R. Samuels*
|
| |
Mr. Samuels has served as director since 2017. He was President of the Capital Guardian Trust Company from 2010 to 2016. He was also a representative of Capital Group for Focusing Capital on the Long Term from 2014 to 2015. At Capital Group, Mr. Samuels served as a member of the board from 2005 to 2009, served on both the Audit and Finance Committees from 2013 to 2016.
|
| |
USA
|
|
|
Gerald L. Storch*
|
| |
Mr. Storch has served as a director since 2012. Mr. Storch has served as Chief Executive Officer of Storch Advisors since November 2017 and also held the position from November 2013 to January 2015. From January 2015 to November 2017, he was Chief Executive Officer of Hudson’s Bay Company, a leading owner and operator of department stores, including Saks Fifth Avenue, Lord & Taylor, Hudson’s Bay Department Stores, Home Outfitters, Saks OFF 5th, Kaufhof, Inno and the e commerce business Gilt. Before that, Mr. Storch was Chairman of Toys “R” Us, Inc., from February 2006 to November 2013 and was Chief Executive Officer February 2006 to May 2013.
|
| |
USA
|
|
|
Name
|
| |
Current Principal Occupation or Employment
and Five-Year Employment History
|
| |
Country of
Citizenship
|
|
|
Karen H. Vousden, Ph.D.*
|
| |
Dr. Vousden has been a director since 2018. She has also been Senior Group Leader at the Francis Crick Institute in London since February 2017 and has been Chief Scientist of Cancer Research UK since July 2016. Prior to that, Dr. Vousden was Director of the Cancer Research—UK (CRUK) Beatson Institute in Glasgow from 2002 to 2016.
|
| |
United Kingdom
|
|
|
Phyllis R. Yale*
|
| |
Ms. Yale has served as director since 2019. She is an Advisory Partner at Bain & Company. Ms. Yale joined Bain in 1982 where she has been a leader in building Bain’s healthcare practice and has served in a number of leadership roles. She is Chair of the Board of Blue Cross Blue Shield of Massachusetts and a member of the advisory board of Harvard Business School Healthcare Initiative.
|
| |
USA
|
|
|
Nadim Ahmed
|
| |
Mr. Ahmed has served as Executive Vice President and President, Hematology since 2019. He was Executive Vice President/President Hematology/Oncology at Celgene from 2017 to 2019, Senior Vice President Worldwide Markets at Celgene from 2016 to 2017 and Corporate Vice President, U.S. Commercial at Celgene from 2014 to 2016.
|
| |
USA
|
|
|
Christopher Boerner, Ph.D.
|
| |
Dr. Boerner has served as Executive Vice President and Chief Commercialization Officer since 2018. He was President and Head, International Markets from 2017 to 2018, President and Head of U.S. Commercial from 2015 to 2017 and Executive Vice President at Seattle Genetics from 2014 to 2015.
|
| |
USA
|
|
|
Adam Dubow
|
| |
Mr. Dubow has served as Senior Vice President, Chief Compliance and Ethics Officer since 2018. He was Vice President and Associate General Counsel, Research and Development from 2015 to 2018 and Vice President and Assistant General Counsel, China, Japan and Intercon Region and EMAC Region from 2013 to 2015.
|
| |
USA
|
|
|
Joseph E. Eid, M.D.
|
| |
Dr. Eid has served as Senior Vice President and Head of Global Medical Affairs since 2017. He was Head of Global Medical from 2017 to 2019 and Vice President, Head of Oncology Global Medical Affairs at Merck from 2014 to 2017.
|
| |
USA
|
|
|
David V. Elkins
|
| |
Mr. Elkins has served as Executive Vice President and Chief Financial Officer since 2019. He was Chief Financial Officer at Celgene from 2018 to 2019, Worldwide Vice President and Chief Financial Officer, Consumer Products, Medical Development and Corporate Functions at Johnson & Johnson from 2017 to 2018 and Group Vice President and Chief Financial Officer, Consumer and Consumer Medicines at Johnson & Johnson from 2014 to 2017.
|
| |
USA
|
|
|
Name
|
| |
Current Principal Occupation or Employment
and Five-Year Employment History
|
| |
Country of
Citizenship
|
|
|
Samit Hirawat, M.D.
|
| |
Dr. Hirawat has served as Executive Vice President, Chief Medical Officer, Global Drug Development since 2019. He was Executive Vice President, Head of Oncology Development at Novartis from 2017 to 2019 and Senior Vice President & Global Program Head at Novartis from 2012 to 2016.
|
| |
USA
|
|
|
Sandra Leung
|
| |
Ms. Leung has served as Executive Vice President and General Counsel since 2015. She was Executive Vice President, General Counsel and Corporate Secretary from 2014 to 2015 and General Counsel and Corporate Secretary from 2007 to 2014.
|
| |
USA
|
|
|
Kathryn Metcalfe
|
| |
Ms. Metcalfe has served as Executive Vice President, Corporate Affairs since 2020. She was Chief Communications Officer at CVS Health Corporation from 2018 to 2019, Chief Communications Officer at Aetna, Inc. from 2016 to 2018 and Chief Communications Officer at Deloitte, LLP from 2011 to 2016.
|
| |
USA
|
|
|
Elizabeth A. Mily
|
| |
Ms. Mily has served as Executive Vice President, Strategy & Business Development since March 2020.
|
| |
USA
|
|
|
Ann M. Powell
|
| |
Ms. Powell has served as Executive Vice President, Chief Human Resources Officer since 2019. She was Senior Vice President, Chief Human Resources Officer from 2016 to 2019, Senior Vice President, Global Human Resources from 2013 to 2016 and Chief Human Resources Officer at Shire Pharmaceuticals from 2009 to 2013.
|
| |
USA
|
|
|
Lou Schmukler
|
| |
Mr. Schmukler has served as Executive Vice President and President, Global Product Development & Supply since 2019. He was Senior Vice President and President, Global Product Development and Supply from 2017 to 2019 and President, Global Product Development and Supply from 2011 to 2017.
|
| |
USA
|
|
|
Rupert Vessey, D.Phil.
|
| |
Dr. Vessey has served as Executive Vice President and President, Research and Early Development since 2019. He was President of Research and Early Development at Celgene from 2015 to 2019.
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USA
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Paul von Autenried
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Mr. von Autenried has served as Executive Vice President, Chief Information Officer since 2019. He was Senior Vice President, Chief Information Officer from 2016 to 2019 and Senior Vice President, Enterprise Services and Chief Information Officer from 2012 to 2016.
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USA
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Name
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Current Principal Occupation or Employment
and Five-Year Employment History
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Country of
Citizenship
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Elizabeth A. Mily*
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Ms. Mily has served as Director, President and Chief Executive Officer of Purchaser since October 2020. Ms. Mily has also served as Executive Vice President, Strategy & Business Development for Parent since March 2020.
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USA
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Jeffrey Galik*
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Mr. Galik has served as Director and Vice President and Treasurer of Purchaser since October 2020. Mr. Galik has also served as Senior Vice President and Treasurer for Parent since 2010.
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USA
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Brian Heaphy*
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Mr. Heaphy has served as Director and Vice President of Purchaser since October 2020. Mr. Heaphy has also served as Vice President, Corporate Development, Cardiovascular & Neuroscience Business Development since 2019 for Parent, and Executive Director, Business Development, since 2011 for Parent.
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USA
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Katherine Kelly
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Ms. Kelly has served as Secretary of Purchaser since October 2020. Ms. Kelly has also served as Vice President and Corporate Secretary for Parent since 2015.
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USA
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***By Mail:
By 5:00 p.m. NYC time on Expiration Date
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
P.O. Box 64858
St. Paul, Minnesota 55164-0858
|
| |
***By Overnight Courier:
By 5:00 p.m. NYC time on Expiration Date
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
1110 Centre Pointe Curve, Suite 101
Mendota Heights, Minnesota 55120
|
***By Mail:
|
| |
***By Overnight Courier:
|
By 5:00 p.m. NYC time on Expiration Date
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
P.O. Box 64858
St. Paul, Minnesota 55164-0858
|
| |
By 5:00 p.m. NYC time on Expiration Date
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
1110 Centre Pointe Curve, Suite 101
Mendota Heights, Minnesota 55120
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ACCOUNT NUMBER
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CERT SHARES
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BOOK SHARES
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TOTAL SHARES
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ISSUE NUMBER
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FOR OFFICE USE ONLY Approved W-9 Completed
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DESCRIPTION OF SHARES TENDERED
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Account Registration
(Please Fill in, if blank)
Please make any address correction below
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Share Certificate(s) and Share(s) Tendered
(Please attach additional signed list, if necessary)
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|
☐ indicates permanent address change
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Certificate Number(s)
and/or indicate
Book-Entry
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Total Number of
Shares Represented
by Certificate(s)
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Number
of Shares
Tendered (1,2)
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Total Shares Tendered
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(1)
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If shares are held in Book-Entry form, you must indicate the number of shares you are tendering. Otherwise, all Shares represented by Book-Entry delivered to the Depositary Agent will be deemed to have been tendered. By signing and submitting this Letter of Transmittal you warrant that these shares will not be sold, including through limit order request, unless properly withdrawn from the Offer. See Instruction 4.
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(2)
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If you wish to tender fewer than all shares represented by any certificate listed above, please indicate in this column the number of shares you wish to tender. Otherwise, all Shares represented by Share Certificates delivered to the Depositary Agent will be deemed to have been tendered. See Instruction 4.
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☐
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CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
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Name(s) of Tendering Stockholder(s)
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Date of Execution of Notice of Guaranteed Delivery , 20
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Name of Institution which Guaranteed Delivery
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If delivery is by book-entry transfer:
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Name of Tendering Institution
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Account Number
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Transaction Code Number
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Name
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(Please Print)
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Address
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(Include Zip Code)
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Name
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(Please Print)
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Address
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(Include Zip Code)
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Signature(s) of Stockholder(s)
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Dated , 20
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Name(s)
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(Please Print)
|
Capacity (full title) (See Instruction 5):
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Address
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(Include Zip Code)
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Name of Firm
|
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Address
|
(Include Zip Code)
|
Authorized Signature
|
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Name(s)
|
(Please Print)
|
Area Code and Telephone Number
|
|
Dated , 20
|
By Mail:
By 5:00 p.m. NYC time on Expiration Date
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
P.O. Box 64858
St. Paul, Minnesota 55164-0858
|
| |
By Facsimile Transmission:
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
(800) 468-9716 (phone)
(866) 734-9952 (fax)
|
| |
By Hand or Overnight Courier:
By 5:00 p.m. NYC time on Expiration Date
Equiniti Trust Company
Shareowner Services
Voluntary Corporate Actions
1110 Centre Pointe Curve, Suite 101
Mendota Heights, Minnesota 55120
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Number of Shares Tendered:
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☐
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Check if securities will be tendered by book-entry transfer.
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Name of Tendering Institution:
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Account No.:
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Dated: , 20
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Name(s) of Record Holder(s)
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(please print)
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Address(es):
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(Zip Code)
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Area Code and Telephone No(s):
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Signature(s):
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(Name of Firm)
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(Address)
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(Zip Code)
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(Authorized Signature)
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(Name) (Please Print)
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(Area Code and Telephone Number)
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1.
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The Offer to Purchase.
|
2.
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The related Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients. Facsimile copies of the Letter of Transmittal may be used to tender Shares.
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3.
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IRS Form W-9 and instructions providing information relating to federal income tax backup withholding.
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4.
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Notice of Guaranteed Delivery to be used to accept the Offer if certificates for Shares and all other required documents cannot be delivered to Equiniti Trust Company, the depositary for the Offer (the “Depositary”), or if the procedures for book-entry transfer cannot be completed, prior to the expiration of the Offer.
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5.
|
A form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer.
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6.
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MyoKardia’s Solicitation/Recommendation Statement on Schedule 14D-9 dated October 19, 2020.
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Very truly yours,
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MacKenzie Partners, Inc.
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1.
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The Offer Price is $225.00 per Share, net to the seller in cash, without interest, subject to any required withholding of taxes and upon the terms and subject to the conditions set forth in the Offer.
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2.
|
The Offer is being made for all outstanding Shares.
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3.
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The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of October 3, 2020 (the “Merger Agreement”), by and among MyoKardia, Parent and Purchaser. The Merger Agreement provides, among other things, that as soon as practicable following (but in any event on the same date as) the acceptance of the Shares for payment (the “Offer Acceptance Time”), subject to the satisfaction or waiver of the other conditions set forth in the Merger Agreement and in any event no later than one business day following the satisfaction or waiver of such conditions, Purchaser will merge with and into MyoKardia (the “Merger”), with MyoKardia continuing as the surviving corporation and a wholly owned subsidiary of Parent. At the effective time of the Merger, each outstanding Share (other than Shares held by MyoKardia, any of its subsidiaries, Parent, Purchaser or any other subsidiary of Parent, or any stockholders who have properly exercised their appraisal rights under Section 262 of the Delaware General Corporation Law (the “DGCL”)) will be converted into the right to receive the Offer Price, net to the seller in cash, without interest, subject to any required withholding of taxes. No appraisal rights are available in
|
4.
|
The board of directors of MyoKardia (the “MyoKardia Board”), at a meeting duly called and held, unanimously adopted resolutions (a) determining that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Offer and the Merger (the “Transactions”), are advisable, fair to and in the best interests of MyoKardia and its stockholders, (b) authorizing and approving the execution, delivery and performance by MyoKardia of the Merger Agreement and the consummation by MyoKardia of the Transactions, (c) resolving that the Merger will be effected under Section 251(h) of the DGCL and that the Merger will be consummated as soon as practicable following the Offer Acceptance Time and (d) recommending that MyoKardia’s stockholders accept the Offer and tender their Shares in the Offer.
|
5.
|
The Offer and withdrawal rights expire at midnight (New York City time), one minute after 11:59 p.m. New York City time, on November 16, 2020, unless the Offer is extended (as it may be extended, the “Expiration Time”).
|
6.
|
Purchaser will not be required to consummate the Offer if any of the following conditions, among other conditions, exist or have occurred and are continuing at the scheduled Expiration Time of the Offer: (a) the number of Shares validly tendered (and not properly withdrawn) prior to the expiration of the Offer (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6) of the DGCL), together with the Shares then owned by Parent or Purchaser, does not represent at least one Share more than 50% of the then outstanding Shares; (b) any restraint is in effect enjoining, making illegal or otherwise prohibiting consummation of the Offer or the Merger; (c) there is an action instituted or pending by a governmental authority of competent jurisdiction seeking any judgment (i) to prevent, prohibit or make illegal the consummation of the Offer or the Merger, (ii) to prohibit Parent’s ability to vote, transfer, receive dividends or otherwise exercise full rights of ownership with respect to the stock of MyoKardia or (iii) in connection with the Offer or the Merger, to prohibit, limit, restrain or impair in any material respect Parent’s ability to own, control, direct, manage, or operate or to retain or change any material portion of the assets, licenses, operations, rights, product lines, businesses or interests therein of MyoKardia or its subsidiaries or any of the material assets, licenses, operations, rights, product lines, businesses or interests therein of Parent or its subsidiaries (other than, in each case, a Divestiture Action (as defined in the Offer to Purchase) required to be taken by Parent and Purchaser pursuant to the Merger Agreement); (d) the waiting period (and any extension thereof) applicable to the consummation of the Offer or the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder has neither expired nor has early termination thereof been granted or there is in effect any voluntary agreement between Parent, Purchaser or MyoKardia and the Federal Trade Commission or the Department of Justice pursuant to which Parent, Purchaser or MyoKardia will not consummate the Merger for any period of time; (e) there is an inaccuracy in the representations and warranties made by MyoKardia in the Merger Agreement, subject to the materiality and other qualifications set forth in the Merger Agreement; (f) MyoKardia has not complied with or performed in all material respects its obligations required to be complied with or performed by it prior to the scheduled Expiration Time under the Merger Agreement; and (g) since the date of the Merger Agreement there has been a Material Adverse Effect (as defined in the Offer to Purchase) that is continuing as of the scheduled Expiration Time. These and other conditions to the Offer are described in Sections 15 and 16 of the Offer to Purchase.
|
7.
|
Any stock transfer taxes applicable to the sale of Shares to the Purchaser pursuant to the Offer will be paid by the Purchaser, except as otherwise set forth in Instruction 6 of the Letter of Transmittal. However,
|
Number of Shares to be Tendered:
|
| |
|
| |
SIGN HERE
|
|||
|
| |
Shares*
|
| |
|
|||
Dated
|
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| |
Signature(s)
|
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Name(s) (Please Print)
|
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Address(es)
|
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(Zip Code)
|
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| |
Area Code and Telephone Number
|
|
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| |
Taxpayer Identification or Social Security Number
|
*
|
Unless otherwise indicated, it will be assumed that all Shares held for the undersigned’s account are to be tendered.
|
1.
|
In connection with your consideration of a possible negotiated business combination transaction between MyoKardia, Inc. (the “Company”) and you (the “Possible Transaction”), you have requested information relating to the Company that is confidential and proprietary. As a condition to your being furnished such information, you agree to treat any information, in any form or medium, whether written or oral, relating to the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spread sheets, data, reports, studies, interpretations or other documents furnished to you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon, in whole or in part, the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement, or (d) is already in your or your Representatives’ possession, provided that such information is not known by you to be subject to a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits disclosure of such information (including the Prior Confidentiality Agreement (as defined below)). For purposes of this letter agreement, the term “Representatives” shall include (i) when used in relation to the Company, the Company’s subsidiaries and Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and its and their respective directors, officers, employees, consultants, attorneys, accountants, financial advisors and other professional representatives, and (ii) when used in relation to you, your subsidiaries and Affiliates and your and their respective directors, officers, employees, consultants, attorneys, accountants, financial advisors and other professional representatives. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement, and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) be directed to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this letter agreement and be directed to comply with all applicable terms of this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach). It is understood and agreed that the Company may, in its sole discretion, from time to time determine that disclosure of certain Evaluation Material to certain of your Representatives may be inappropriate, in which event at the Company’s request, you shall refrain from disclosing such Evaluation Material to such Representatives from and after receipt of such request. You agree to notify the Company in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Evaluation Material which may come to your attention.
|
2.
|
Each party will not, and will direct its Representatives not to, disclose to any person (including any governmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place (or have taken place) concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided,
|
3.
|
You hereby acknowledge that you and your Representatives are aware that the Evaluation Material and Transaction Information may contain material, non-public information about the Company, and that applicable securities laws prohibit certain actions by persons who have received from an issuer material, non-public information.
|
4.
|
Notwithstanding anything to the contrary provided in this letter agreement, (x) in the event either party or any of its Representatives receive a request or are required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or Transaction Information, as applicable, or (y) in the case of a Permitted Disclosure, such party or its Representatives, as the case may be, agree (to the extent reasonably practicable under the circumstances and not prohibited by law) to (a) promptly notify the other party of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure, (b) consult with the other party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the other party, at the other party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the non-disclosing party waives compliance with the provisions hereof, (i) such disclosing party or its Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which such disclosing party or its Representatives are advised by outside legal counsel is legally required to be disclosed and to only those persons to whom such disclosing party or its Representatives are advised by outside legal counsel are legally required to receive such information, and such disclosing party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) such disclosing party or its Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by such disclosing party or its Representatives not permitted by this letter agreement.
|
5.
|
You agree that (a) all communications regarding the Possible Transaction, (b) requests for additional information, (c) requests for management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, shall be submitted or directed only to those persons designated by the Company in writing, it being understood that contact and discussions in the ordinary course consistent with past practices and unrelated to the Possible Transaction (and in which the Possible Transaction is not discussed) shall not be prohibited or otherwise restricted by this paragraph 5.
|
6.
|
Each party agrees that, for a period of one (1) year from the date hereof, neither it nor any of its Affiliates who are provided with Evaluation Material or Transaction Information, or any of its Representatives acting on its behalf or at its direction, will, directly or indirectly, solicit for employment or employ or cause to leave the employ of the other party (a) any individual serving as an officer of the other party, or (b) any employee of the other party or any of its subsidiaries with whom such first party has had substantial contact in such first party’s evaluation of the Possible Transaction, in each case without obtaining the prior written
|
7.
|
You hereby acknowledge and agree that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material or Transaction Information, or any of your Representatives acting on your behalf or at your direction, will, directly or indirectly: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that the Standstill Period shall terminate (x) upon the Company’s entry into a definitive agreement providing for a Business Combination or (y) if any third party commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial ownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the Securities and Exchange Commission a Schedule 14D-9 with respect to such offer that recommends that the Company’s stockholders accept such offer. Notwithstanding anything to the contrary set forth in this Section 7, (x) you and your Representatives acting on your behalf shall be permitted to make an unsolicited, confidential, non-public (i) proposal to the Company’s Chief Executive Officer or Board of Directors (or any duly constituted committee thereof) with respect to a Business Combination or (ii) request to the Company’s Chief Executive Officer or Board of Directors (or any duly constituted committee thereof) for a waiver of the provisions of this Section 7; provided that no such proposal or request shall be made that could reasonably be expected to require any public disclosure by the Company or you or any of your Affiliates with respect thereto; and (y) nothing in this Section 7 shall be construed to prohibit passive investments made in the ordinary course of business in connection with retirement plans, 401(k) plans, mutual funds, pension plans, or similar arrangements, in each case, only if not specifically targeted to an investment in the Company and not resulting in any filing obligation under Section 13 of the Exchange Act.
|
8.
|
You understand that neither the Company nor any of its Representatives has made or make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material and that any such representations or warranties will be made only as set forth in any definitive agreement regarding the Possible Transaction. You agree that, except pursuant to any definitive agreement regarding the Possible Transaction, neither the Company nor any of its Representatives shall have any liability to you or any of your Representatives resulting from the selection, use or content of the Evaluation Material by you or your Representatives.
|
9.
|
Upon the Company’s demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof (including material that references Transaction Information), or (b) return to the Company all Evaluation Material and any copies thereof (including material that references Transaction Information), and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible
|
10.
|
You agree that, except to the extent expressly authorized by the Company in advance, neither you nor any of your Representatives acting on your behalf or at your direction will directly or indirectly have any formal or informal discussions or other communications, or directly or indirectly enter into any agreement, arrangement or understanding, whether formal or informal and whether or not binding, with any director, officer or other employee of the Company or any of its subsidiaries relating to (i) any retention, severance, equity or other compensation, incentives or benefits that may be or become payable to any directors, officers or employees of the Company or any of its subsidiaries in connection with a Possible Transaction or following the consummation thereof, or (ii) any directorship, employment, consulting arrangement or other similar association or involvement of any directors, officers or other employees of the Company or any of its subsidiaries with the Company or any Affiliate of the Company following the consummation of a Possible Transaction.
|
11.
|
To the extent that any Evaluation Material may include material subject to the attorney- client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal or regulatory proceedings or governmental investigations, the parties hereto understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the disclosure of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Evaluation Material will remain entitled to all protection under these privileges, this letter agreement and the joint defense doctrine. Nothing in this letter agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, and in the event of an inadvertent disclosure of any materials which may have the effect of waiving any such privilege, you and your Representatives agree to destroy any such materials promptly upon the request of the Company or its Representatives.
|
12.
|
You represent and warrant that, as of the date hereof, neither you nor any of your controlled Affiliates beneficially own any securities of the Company (as determined under the Exchange Act) or have any other pecuniary or voting interest in the securities of the Company (other than through investments in broad-based index funds, pensions, benefit plans or other similar passive investments).
|
13.
|
Nothing in this letter agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of the Company or any of its subsidiaries, nor shall this letter agreement grant any rights in or to the Evaluation Material other than the limited right to review such Evaluation Material solely for the purpose of evaluating and negotiating the Possible Transaction.
|
14.
|
Each party acknowledges and agrees that money damages may not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by the other party or its Representatives and that each party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement but will be in addition to all other remedies available at law or in equity.
|
15.
|
Each party agrees that unless and until a definitive agreement between the parties with respect to the Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or any written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, each
|
16.
|
You acknowledge that (a) the Company shall be free to conduct the process for a transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such transaction may be implemented or changed at any time without notice to you or any other person, in each case, except as otherwise may be set forth in any definitive agreement regarding the Possible Transaction.
|
17.
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No failure or delay by a party or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof unless in writing and signed by an officer of the party or other authorized person on its behalf. No modification or amendment of this letter agreement shall be effective unless in writing and signed by an officer of the Company, or other authorized person on its behalf, and you, or an authorized person on your behalf.
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18.
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The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
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19.
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This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement and the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
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20.
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This letter agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Notwithstanding the foregoing, nothing contained in this letter agreement shall modify or impair any of the rights or obligations of the parties under the Mutual Confidential Disclosure Agreement dated as of June 29, 2020 (the “Prior Confidentiality Agreement”), with respect to any Confidential Information (as defined therein) provided (i) by the Company thereunder prior to the date of this letter agreement or (ii) by you thereunder prior to or after the date of this letter agreement (it being understood that any Transaction Information shall be governed by the terms of this Agreement).
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21.
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This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
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22.
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Except as otherwise expressly provided herein, this letter agreement and the obligations hereunder shall terminate on the date that is seven (7) years from the date hereof; provided that the obligations of confidentiality and non-use of Manufacturing Information (as defined in the Prior Confidentiality Agreement) that is identified in writing by the Company as Manufacturing Technology before it is shared with you shall terminate on the date that is ten (10) years from the date hereof; and provided further that any such termination shall not relieve any party for any breach of this letter agreement prior to such termination.
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Very truly yours,
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MYOKARDIA, INC.
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By:
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/s/ Jacob Bauer
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Name:
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Jacob Bauer
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Title:
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Chief Business Officer
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Confirmed and Agreed to:
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BRISTOL-MYERS SQUIBB COMPANY
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By:
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/s/ Brian Heaphy
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Name:
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Brian Heaphy
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Title:
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Vice President, Corporate Development,
Cardiovascular & Neuroscience Business Development
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Date:
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9/18/20
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Very truly yours,
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BRISTOL-MYERS SQUIBB COMPANY
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By:
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/s/ Brian Heaphy
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Name:
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Brian Heaphy
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Title:
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VP, Corporate Development
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AGREED AND ACCEPTED:
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||||||
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MYOKARDIA, INC.
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||||||
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By:
|
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/s/ Jacob Bauer
|
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|
| |
|
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Name:
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Jacob Bauer
|
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| |
|
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Title:
|
| |
Chief Business Officer
|
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BRISTOL-MYERS SQUIBB COMPANY
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||||||
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By:
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/s/ Elizabeth A. Mily
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Name:
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Elizabeth A. Mily
|
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|
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Title:
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Executive Vice President, Strategy and Business Development
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|
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|
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GOTHAM MERGER SUB INC.
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||||||
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|
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By:
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/s/ Brian P. Heaphy
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| |
|
|
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Name:
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Brian P. Heaphy
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Title:
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Vice President
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