Bristol Myers Squibb Co SC TO-T/A, filed Nov 17, 2020
Bristol Myers Squibb Co (BMY)
SC TO-T/A
2020-11-17
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October 18, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)
MYOKARDIA, INC.
(Name of Subject Company (Issuer))
GOTHAM MERGER SUB INC.
(Offeror)
A Wholly Owned Subsidiary of
BRISTOL-MYERS SQUIBB COMPANY
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
62857M105
(CUSIP Number of Class of Securities)
Sandra Leung, Esq.
Executive Vice President & General Counsel
Casarine Chong, Esq.
Senior Vice President & Associate General Counsel
Bristol-Myers Squibb Company
430 East 29th Street, 14th Floor
New York, NY 10016
(212) 546-4000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Daniel E. Wolf, Esq.
Jonathan L. Davis, Esq.
Maggie D. Flores, Esq.
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
(212) 446-4800
CALCULATION OF FILING FEE
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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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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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The foregoing figures have been provided by MyoKardia, Inc. to the Offeror and Parent of Offeror and are as of October 13, 2020, the most recent practicable date.
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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: $1,426,082.52
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Filing Party: Bristol-Myers Squibb Company
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Form of Registration No.: Schedule TO
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Date Filed: October 19, 2020
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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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Check the appropriate boxes below to designate any transactions to which the statement relates:
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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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Check the following box if the filing is a final amendment reporting the results of the tender offer: ☑
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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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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2
This Amendment No. 3 to the Tender Offer Statement on Schedule TO (this “Amendment”) amends and supplements the Schedule TO filed with the Securities and Exchange Commission on October 19, 2020 (as it may be
amended and supplemented from time to time, the “Schedule TO”) and relates to the offer by Gotham Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Bristol-Myers Squibb Company, a Delaware
corporation, to purchase all outstanding shares of common stock, par value $0.0001 per share (the “Shares”) of MyoKardia, Inc., a Delaware corporation, at $225.00 per Share, net to the seller in cash, without
interest and less applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 19, 2020 (the “Offer to Purchase”), and in the related Letter of
Transmittal, copies of which are attached to the Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO and the Offer to Purchase remains unchanged and is incorporated herein by reference to the extent relevant to the matters set forth in this Amendment.
Capitalized terms used but not defined in this Amendment have the meanings given to them in the Offer to Purchase.
Items 1 through 9 and Item 11.
Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented as follows:
“The Offer expired at midnight (New York City time), one minute after 11:59 p.m. New York City time, on November 16, 2020. The Depositary for the Offer has advised that, as of the expiration of the Offer, a total of 42,180,978 Shares (excluding
Shares with respect to which Notices of Guaranteed Delivery were delivered and for which certificates were not yet delivered that have not yet been “received” as defined in Section 251(h) of the DGCL) were validly tendered and not validly withdrawn
pursuant to the Offer, representing approximately 78.9% of the Shares outstanding as of the expiration of the Offer. In addition, the Depositary has advised that Notices of Guaranteed Delivery have been delivered with respect to approximately 6,150,189
Shares that have not yet been tendered, representing approximately 11.5% of the outstanding Shares. As of the expiration of the Offer, the number of Shares validly tendered and not validly withdrawn pursuant to the Offer satisfied the Minimum
Condition. Promptly after the expiration of the Offer, Purchaser irrevocably accepted for payment, and will promptly pay for, all Shares validly tendered and not validly withdrawn pursuant to the Offer.
On November 17, 2020, Parent completed its acquisition of MyoKardia pursuant to the terms of the Merger Agreement. On such date, Purchaser merged with and into MyoKardia, without a vote of MyoKardia’s stockholders pursuant to Section 251(h) of the
DGCL, with MyoKardia surviving as a wholly owned subsidiary of Parent. Pursuant to the Merger Agreement, at the Effective Time, each Share issued and outstanding immediately prior to the Effective Time (other than (i) Shares with respect to which the
holders thereof have properly exercised and perfected demands for appraisal of such Shares in accordance with Section 262 of the DGCL, (ii) Shares that are owned by MyoKardia as treasury stock and (iii) Shares held by Parent or Purchaser) was converted
into the right to receive $225.00 per Share in cash, without interest, subject to any withholding of taxes required by applicable law (which is the same amount per Share paid in the Offer).
Following the consummation of the Merger, the Shares will be delisted and will cease to trade on the NASDAQ Global Select Market. Parent and Purchaser intend to take steps to cause the termination of the registration of the Shares under the Exchange
Act and suspend all of MyoKardia’s reporting obligations under the Exchange Act as promptly as practicable.
A copy of the press release issued by Parent on November 17, 2020 announcing the expiration and results of the Offer and the consummation of the Merger is attached hereto as Exhibit (a)(5)(xv).”
Item 12. Exhibits.
Item 12 of the Schedule TO and the Exhibit Index is hereby amended and supplemented by adding the following Exhibit to the List of Exhibits:
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Exhibit No.
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Description
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Press Release issued by Bristol-Myers Squibb Company dated November 17, 2020.
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3
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: November 17, 2020
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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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4
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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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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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5
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Exhibit No.
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Description
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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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MyoKardia, Inc. Employee Presentation provided to employees of MyoKardia, Inc. on October 28, 2020 (incorporated by reference to Exhibit (a)(1)(J) of the MyoKardia, Inc. Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission on October 28, 2020).
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Joint Press Release of Bristol-Myers Squibb Company and MyoKardia, Inc. dated November 4, 2020.
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Press Release issued by Bristol-Myers Squibb Company dated November 17, 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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* Filed herewith.
6
Exhibit (a)(5)(xv)
Bristol Myers Squibb Completes Acquisition of MyoKardia, Strengthening Company’s Leading Cardiovascular Franchise
NEW YORK— November 17, 2020 — Bristol Myers Squibb (NYSE:BMY) announced today that it has successfully completed its acquisition of MyoKardia, Inc. in an all cash transaction for approximately $13.1 billion. With the
completion of the acquisition, MyoKardia shares have ceased trading on the NASDAQ Global Select Market and MyoKardia is now a wholly-owned subsidiary of Bristol Myers Squibb.
“We are excited to welcome MyoKardia colleagues to Bristol Myers Squibb. The MyoKardia team has revolutionized cardiovascular treatments to address significant unmet medical needs, and we look forward to helping more
patients together,” said Giovanni Caforio, M.D., Board Chair and Chief Executive Officer of Bristol Myers Squibb. “With MyoKardia, we are bolstering our leading cardiovascular franchise and adding exceptional scientific capabilities, a
potentially transformative new medicine with significant commercial potential and a promising pipeline of candidates. Cardiovascular remains an important therapeutic area for Bristol Myers Squibb with a strong legacy and a promising future.”
Through the transaction with MyoKardia, Bristol Myers Squibb gains mavacamten, a potential first-in-class cardiovascular medicine for the treatment of obstructive hypertrophic cardiomyopathy (“HCM”), a chronic heart
disease with high morbidity and patient impact. A New Drug Application (“NDA”) for mavacamten for the treatment of symptomatic obstructive HCM – based on data from the EXPLORER-HCM study – is expected to be submitted to the U.S. Food and Drug
Administration in the first quarter of 2021. Bristol Myers Squibb expects to explore the full potential of mavacamten in additional indications, including non-obstructive HCM, as well as develop MyoKardia’s promising pipeline of novel compounds,
including two clinical-stage therapeutics: danicamtiv (formerly MYK-491) and MYK-224, and two pre-clinical assets: ACT-1 and LUS-1.
Bristol Myers Squibb’s previously announced tender offer for all outstanding shares of common stock of MyoKardia for $225.00 per share expired at 12:00 a.m. New York City time, at the end of the day on November 16, 2020.
Approximately 42,180,978 shares of MyoKardia common stock were validly tendered, and not withdrawn from the tender offer, representing approximately 78.9% of MyoKardia’s outstanding shares of common stock. In accordance with the terms of the tender
offer, all shares that were validly tendered and not properly withdrawn have been accepted for payment and Bristol Myers Squibb expects to promptly pay for all such shares.
Following completion of the tender offer, Bristol Myers Squibb completed the acquisition of MyoKardia through the merger of Gotham Merger Sub Inc. with and into MyoKardia, without a vote of MyoKardia’s stockholders
pursuant to Section 251(h) of the General Corporation Law of the State of Delaware. As a result of the merger, each share of common stock of MyoKardia issued and outstanding and not tendered in the tender offer was converted into the right to receive
an amount in cash equal to $225.00, without interest and less any required withholding taxes, the same price offered in the tender offer.
MyoKardia shareholders can direct questions regarding the tender offer to MacKenzie Partners, Inc., the information agent for the tender offer, toll free, at 1-800-322-2885.
About Hypertrophic Cardiomyopathy
Hypertrophic cardiomyopathy, or HCM, is a chronic, progressive disease in which excessive contraction of the heart muscle and reduced ability of the left ventricle to fill can lead to the development of debilitating symptoms and cardiac
dysfunction. HCM is estimated to affect one in every 500 people.
The most frequent cause of HCM is mutations in the heart muscle proteins of the sarcomere. In approximately two-thirds of HCM patients, the path followed by blood exiting the heart, known as the left ventricular outflow tract (LVOT), becomes
obstructed by the enlarged and diseased muscle, restricting the flow of blood from the heart to the rest of the body (obstructive HCM). In other patients, the thickened heart muscle does not block the LVOT, and their disease is driven by diastolic
impairment due to the enlarged and stiffened heart muscle (non-obstructive HCM). In either obstructive or non-obstructive HCM patients, exertion can result in fatigue or shortness of breath, interfering with a patient’s ability to participate in
activities of daily living. HCM has also been associated with increased risks of atrial fibrillation, stroke, heart failure and sudden cardiac death.
There are currently approximately 160,000 to 200,000 people diagnosed with symptomatic obstructive HCM across the U.S. and EU, with no existing effective treatment options beyond limited symptomatic relief. Patients
are typically diagnosed in their 40s or 50s and the treatment is expected to be chronic. It is estimated that only approximately 25 percent of individuals with obstructive HCM and only approximately 10 percent of individuals with non-obstructive HCM
have received a diagnosis.
Advisors
Gordon Dyal & Co., LLC is serving as exclusive financial advisor to Bristol Myers Squibb, and Kirkland & Ellis LLP is serving as legal counsel. Centerview Partners LLC and Guggenheim Securities are acting as joint financial advisors to
MyoKardia and Goodwin Procter LLP is serving as legal counsel.
About Bristol Myers Squibb
Bristol Myers Squibb is a global biopharmaceutical company whose mission is to discover, develop and deliver innovative medicines that help patients prevail over serious diseases. For more information about Bristol Myers Squibb, visit us at
BMS.com or follow us on LinkedIn, Twitter, YouTube, Facebook, and Instagram.
Cautionary Statement Regarding Forward Looking Statements
This press release contains “forward-looking statements” relating to the acquisition of MyoKardia by Bristol Myers Squibb and the development and commercialization of certain biological compounds. Such forward-looking statements are generally
identified by terminology such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or
other similar words. These statements are only predictions, and such forward-looking statements are based on current expectations and involve inherent risks and uncertainties, including factors that could delay, divert or change any of them, and
could cause actual outcomes and results to differ materially from current expectations. No forward-looking statement can be guaranteed. Among other risks are (i) that there can be no guarantee that the expected benefits of the acquisition will be
realized, (ii) the outcome of any legal proceedings that may be instituted against the parties and others related to the merger agreement and (iii) unanticipated difficulties or expenditures relating to the transaction, the response of business
partners and competitors to the transaction and/or potential difficulties in employee retention as a result of the transaction. The actual financial impact of this transaction may differ from the expected financial impact described in this press
release. In addition, the compounds described in this press release are subject to all the risks inherent in the drug development process, and there can be no assurance that the development of these compounds will be commercially successful.
Forward-looking statements in this press release should be evaluated together with the many uncertainties that affect Bristol Myers Squibb’s business, particularly those identified in the cautionary factors discussion in Bristol Myers Squibb’s Annual
Report on Form 10-K for the year ended December 31, 2019, and its subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as other documents that may be filed by Bristol Myers Squibb from time to time with the SEC. Bristol
Myers Squibb does not undertake any obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise. The forward-looking statements made in this communication relate only to events as of
the date on which the statements are made.
Contacts
Media:
media@bms.com
Investors:
Tim Power, 609-252-7509, timothy.power@bms.com
Nina Goworek, 908-673-9711, nina.goworek@bms.com