Bristol-Myers Squibb (BMY) SC TO-TThird party tender offer statement

accordance with the terms of the award agreement and tender such Shares received upon the exercise in accordance with the terms of the Offer. “Turning Point Equity Plan” means each of the Turning Point Therapeutics, Inc. 2013 Equity Incentive Plan, as amended, and the Turning Point Therapeutics, Inc. 2019 Stock Option and Incentive Plan, as amended.

respect to any such offering period (and purchase period thereunder) then underway under the Turning Point ESPP to be determined by treating the last business day prior to the Merger Effective Time as the last day of such offering period and purchase period and by making such other pro rata adjustments as may be necessary to reflect the shortened offering period and purchase period but otherwise treating such shortened offering period and purchase period as a fully effective and completed offering period and purchase period for all purposes under the Turning Point ESPP. Turning Point will terminate the Turning Point ESPP in its entirety effective as of the Merger Effective Time, contingent upon the Merger Effective Date.

the amount of shares of each class of stock of the target corporation that would otherwise be required for the stockholders of the target corporation to adopt a merger agreement with the acquiring entity, and each share of each class or series of stock of the target corporation not irrevocably accepted for purchase in the offer is converted into the right to receive the same consideration as was payable in the tender offer, the target corporation can effect a merger without the vote of the stockholders of the target corporation. Therefore, the parties have agreed, and the Merger Agreement requires, that, subject to the conditions specified in the Merger Agreement, the Merger will become effective as promptly as reasonably practicable after the consummation (within the meaning of Section 251(h) of the DGCL) of the Offer, without a vote of Turning Point stockholders, in accordance with Section 251(h) of the DGCL. See “The Offer—Section 12—Purpose of the Offer; Plans for Turning Point; Stockholder Approval; Appraisal Rights.”

If we make a material change to the terms of the Offer or waive a material condition to the Offer, we will extend the Offer and disseminate additional tender offer materials, in each case, to the extent required by applicable law. The minimum period during which a tender offer must remain open following material changes in the terms of the offer, other than a change in price or a change in percentage of securities sought, depends upon the facts and circumstances, including the materiality of the changes. In a published release, the SEC has stated that in its view an offer must remain open for a minimum period of time following a material change in the terms of such offer and that the waiver of a condition such as the Minimum Condition is a material change in the terms of an offer. The release states that an offer should remain open for a minimum of five business days from the date the material change is first published, sent or given to stockholders, and that if material changes are made with respect to information that approaches the significance of price and the percentage of securities sought (including, for the avoidance of doubt, a change in price or percentage of securities sought), a minimum of ten business days generally is required to allow adequate dissemination and investor response. If, prior to the Expiration Time, Purchaser increases the consideration being paid for Shares accepted for payment pursuant to the Offer, such increased consideration will be paid to all stockholders whose Shares are purchased pursuant to the Offer, whether or not such Shares were tendered prior to the announcement of the increase in consideration.

to the Offer, see “—Section 3—Procedures for Tendering Shares.” Accordingly, payment may be made to tendering stockholders at different times if delivery of the Shares and other required documents occurs at different times.

case, be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase by the Expiration Time, or the guaranteed delivery procedure described below must be complied with.

backup withholding by completing the IRS Form W-9 included in the Letter of Transmittal or otherwise establish an exemption from backup withholding. If you are a non-U.S. person, you generally will not be subject to backup withholding if you certify your foreign status on the appropriate IRS Form W-8.

an Eligible Institution must be submitted before the release of such Shares. In addition, such notice must specify, in the case of Shares tendered by delivery of certificates, the serial numbers shown on the specific certificates evidencing the Shares to be withdrawn or, in the case of Shares tendered by book-entry transfer, the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares. Withdrawals may not be rescinded, and Shares withdrawn will thereafter be deemed not validly tendered. However, withdrawn Shares may be retendered at any time before the Expiration Time by again following any of the procedures described in “—Section 3—Procedures for Tendering Shares.”

For purposes of this discussion, a “U.S. Holder” is a beneficial owner of Shares that is for U.S. federal income tax purposes:

treaty). A Non-U.S. Holder described in the second bullet point above will be subject to tax at a rate of 30% (or a lower rate provided by an applicable income tax treaty) on any capital gain realized, which may be offset by U.S.-source capital losses recognized in the same taxable year, even though the individual is not considered a resident of the United States, provided that such Non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.

waiver of the remaining conditions contained in the Merger Agreement, we intend to consummate the Merger as promptly as reasonably practicable. We do not expect there to be a significant period of time between consummation of the Offer and consummation of the Merger.

During the last five years, none of Purchaser or Parent or, to the best knowledge of Purchaser and Parent, any of the persons listed in Schedule I hereto, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.

On February 15, 2022, Parent was contacted by Goldman Sachs & Co LLC (“Goldman Sachs”), financial advisor to Turning Point, to discuss potential partnering opportunities, and Goldman Sachs sent Parent a non-confidential presentation and draft non-disclosure agreement following Parent’s expression of interest.

Also on May 5, 2022, representatives of Goldman Sachs called Ms. Mily to discuss the non-binding partnering proposal submitted by Parent and to confirm the timeline for when Parent could reach a definitive agreement with respect to a partnering proposal. During the call and as a follow-up to the call on April 27, representatives of Goldman Sachs and Ms. Mily also discussed Parent’s interest in a potential acquisition transaction. Goldman Sachs indicated that at this time Turning Point's focus was on a potential partnering transaction.

On May 25 and 26, 2022, the Parent Board convened with members of Parent management present to discuss the potential transaction, including, among other things, Parent’s strategic rationale for a potential transaction, results of due diligence conducted to date and valuation. Following discussion, the Parent Board authorized management to deliver a revised non-binding offer to Turning Point.

providing that Parent would not be obligated to engage in any divestures or take other remedial actions in order to obtain regulatory clearances), and the parties continued to negotiate the open terms of the merger agreement and to finalize the disclosure schedules. During these discussions, the parties discussed adding a reverse termination fee to address regulatory related matters.

otherwise be entitled to vote on the merger (other than shares held by the acquiring entity and its affiliates), the stock irrevocably accepted for purchase pursuant to such offer and received by the Depositary prior to the expiration of such offer, plus the stock otherwise owned by the acquirer equals at least the amount of shares of each class of stock of the target corporation that would otherwise be required for the stockholders of the target corporation to adopt a merger agreement with the acquiring entity, and each share of each class or series of stock of the target corporation not irrevocably accepted for purchase in the offer is converted into the right to receive the same consideration for their stock in the merger as was payable in the tender offer, the target corporation can effect a merger without the vote of the stockholders of the target corporation. Therefore, the parties have agreed, and the Merger Agreement requires, that, subject to the conditions specified in the Merger Agreement, the Merger will become effective as promptly as reasonably practicable after the consummation of the Offer, without a vote of Turning Point stockholders, in accordance with Section 251(h) of the DGCL.

Offer Statement on Schedule TO and is incorporated herein by reference. Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The summary description has been included in this Offer to Purchase to provide you with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any factual disclosures about Parent, Purchaser, Turning Point or their respective affiliates. The representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of the Merger Agreement, were made as of specific dates, were made solely for the benefit of the parties to the Merger Agreement and may not have been intended to be statements of fact, but rather, as a method of allocating risk and governing the contractual rights and relationships among the parties to the Merger Agreement. In addition, such representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and may apply standards of materiality and other qualifications and limitations in a way that is different from what may be viewed as material by Parent’s or Turning Point’s stockholders or under federal securities laws. In reviewing the representations, warranties and covenants contained in the Merger Agreement or any descriptions thereof in this summary, it is important to bear in mind that investors are not third-party beneficiaries under the Merger Agreement and that such representations, warranties, covenants or descriptions were not intended by the parties to the Merger Agreement to be characterizations of the actual state of facts or conditions of Parent, Purchaser, Turning Point or their respective affiliates. Moreover, information concerning the subject matter of the representations and warranties may have changed or may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures. For the foregoing reasons, the representations, warranties, covenants or descriptions of those provisions should not be read alone and should instead be read in conjunction with the other information contained in the reports, statements and filings that Parent, its affiliates and Turning Point publicly file.

other person), extend the Offer on one or more occasions for additional periods of up to ten business days per extension in order to permit the satisfaction of such Offer Condition(s). We are required to extend the Offer from time to time for (A) any period required by any applicable law, any interpretation or position of the SEC or its staff or NASDAQ or its staff, in each case, applicable to the Offer; and (B) periods of up to ten business days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act, the EU Merger Regulation or any other Antitrust Laws in Germany will have expired or been terminated. In addition, if any of the Offer Conditions have not been satisfied or waived as of the scheduled Expiration Time, upon Turning Point’s request, we will extend the Offer on one or more occasions, for additional periods of up to ten business days per extension to permit such Offer Conditions to be satisfied, subject to the terms and conditions of the Merger Agreement.

fully vested Turning Point Option immediately prior to the Merger Effective Time, multiplied by (ii) the excess of (x) the Offer Price over (y) the exercise price payable per Share under such Turning Point Option. No holder of a Turning Point Option that has an exercise price per Share that is equal to or greater than the Offer Price will be entitled to any payment with respect to such Turning Point Option before or after the Merger Effective Time, and such Turning Point Option will be canceled and retired and will cease to exist as of the Merger Effective Time, and no consideration will be delivered in exchange therefor.

If at any time on or after the date of the Merger Agreement and prior to the Offer Acceptance Time, Turning Point or any of its representatives receives an unsolicited written Acquisition Proposal from any person or group of persons, which Acquisition Proposal was made or renewed on or after the date of the Merger Agreement and did not, directly or indirectly, result from any breach of the restrictions described above, then:

requiring, or reasonably expected to cause, Turning Point to abandon, terminate, materially delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions.

The parties to the Merger Agreement have agreed that:

(v) effectuate any other change or restructuring of Turning Point, the Surviving Corporation, Parent or any of its subsidiaries, (vi) undertake or enter into agreements with any Governmental Body or agree to the entry of an order by any Governmental Body, and (vii) otherwise take or commit to take any actions with respect to the businesses, product lines or assets Turning Point, Parent, the Surviving Corporation or any of its subsidiaries. However, Turning Point, the Surviving Corporation, Parent or any of its subsidiaries will not be required to take or commit to take any such action, or agree to any such condition or restriction, unless such action, commitment, agreement, condition or restriction is binding on Turning Point, the Surviving Corporation, Parent or any of its subsidiaries only in the event the Merger closing occurs;

expiration or termination of any applicable waiting period pursuant to the HSR Act or other Antitrust Laws, (ii) reasonably be expected to materially increase the risk of not obtaining any approvals and expiration of waiting periods pursuant to the HSR Act or other Antitrust Laws, or (iii) materially impede the consummation of the Offer, the Merger or other transactions contemplated by the Merger Agreement.

severance plans and arrangements) in which the Continuing Employee may participate following the Merger closing (the “Parent Plans”) with respect to his or her length of service with Turning Point (and its predecessors) prior to the Merger closing to the same extent such Continuing Employee was entitled to such service credit under the corresponding Employee Plan in which such Continuing Employee participated immediately prior to the Merger closing, provided that the foregoing shall not result in the duplication of benefits or to benefit accrual under any pension plan.

The obligations of each party to consummate the Merger are subject to the satisfaction of the following conditions:

as a condition to the effectiveness of such termination; (ii) in the case of a termination pursuant to a Change in Recommendation Termination, within two business days after such termination; or (iii) in the case of a termination pursuant to an End Date Termination, immediately prior to the consummation of the Acquisition Proposal referred to in the End Date Termination above.

Pursuant to the Merger Agreement, if Turning Point or Parent, as applicable, fails to timely pay any Termination Fee or Reverse Termination Fee due pursuant to the terms of the Merger Agreement, and in order to obtain the payment, Parent or Turning Point, as applicable, commences a legal proceeding which results in a judgment against Turning Point or Parent, as applicable, Turning Point will pay Parent, or Parent will pay to Turning Point, as applicable, its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on such amount.

war, national or international calamity or any other similar event, except to the extent that such event, circumstance, change or effect disproportionately affects Turning Point relative to other participants in the industries in which Turning Point operates or the economy generally, as applicable; (vi) any epidemic, pandemic (including COVID-19), disease outbreak or other public health-related event, hurricane, tornado, flood, earthquake, tsunamis, tornadoes, mudslides, fires or other natural disaster or other force majeure event, or the escalation or worsening thereof; (vii) the failure of Turning Point to meet internal or analysts’ expectations or projections or the results of operations of Turning Point; (viii) any adverse effect arising directly from or otherwise directly relating to any action taken by Turning Point at the written direction of Parent or any action specifically required to be taken by Turning Point, or the failure of Turning Point to take any action that Turning Point is specifically prohibited by the terms of the Merger Agreement from taking to the extent Parent unreasonably fails to give its consent thereto after a written request therefor pursuant to the Merger Agreement; (ix) any event, occurrence, circumstance, change or effect resulting or arising from Parent’s or Purchaser’s breach of the Merger Agreement; (x) any event, occurrence, circumstance, change or effect arising directly or indirectly from or otherwise relating to any change in, or any compliance with or action taken for the purpose of complying with, any applicable law or the United States generally accepted accounting principles (“GAAP”) (or interpretations of any applicable law or GAAP), except to the extent that Turning Point is adversely affected disproportionately relative to the other participants in such industries or the economy generally, as applicable; or (xi) to the extent not involving any wrongdoing by Turning Point or any of its affiliates or representatives acting on behalf of Turning Point and other than for purposes of any representation or warranty contained in Sections 3.13 of the Merger Agreement (Regulatory Matters) or 3.15 of the Merger Agreement (Governmental Authorizations), (1) regulatory, manufacturing or clinical changes, events or developments or other actions resulting from any nonclinical or clinical studies sponsored by Turning Point or any competitor of Turning Point, results of meetings with the FDA or other governmental body (including any communications from any governmental body in connection with such meetings), or any increased incidence or severity of any previously identified side effects, adverse effects, adverse events or safety observations or reports of new side effects, adverse events or safety observations with respect to Turning Point’s or any competitor’s product candidates, (2) the determination by, or the delay of a determination by, the FDA or any other governmental body, or any panel or advisory body empowered or appointed thereby, with respect to the clinical hold, acceptance, filing, designation, approval, clearance, non-acceptance, hold, refusal to file, refusal to designate, non-approval, disapproval or non-clearance of any of Turning Point’s or any competitor’s product candidates, (3) FDA approval (or other clinical or regulatory developments), market entry or threatened market entry of any product competitive with or related to any of Turning Point’s products or product candidates, or any guidance, announcement or publication by the FDA or other governmental body relating to any product candidates of Turning Point or any competitor, or (4) any manufacturing or supply chain disruptions or delays in manufacturing validation affecting products or product candidates of Turning Point or developments relating to reimbursement, coverage or payor rules with respect to any product or product candidates of Turning Point or the pricing of products. However, the exceptions in clauses “(i)” and “(vii)” above will not prevent or otherwise affect a determination that the underlying cause of any such decline or failure referred to therein (if not otherwise expressly excluded under any of the other exceptions provided) is or would be reasonably likely to be a Material Adverse Effect.

purchase of Shares thereunder. Our obligation under the Offer to accept for payment and pay for Shares is subject to the conditions set forth in “—Section 15—Conditions to the Offer.”

the purchase of Shares pursuant to the Offer will expire 15 days following the filing of the Premerger Notification and Report Form, but this period may change if Parent voluntarily withdraws and refiles its Premerger Notification and Report Form in order to restart the 15-day waiting period, or if the reviewing agency issues a formal request for additional information and documentary material. If such a request is made, the waiting period will be extended until 11:59 p.m., Eastern Time, ten days after substantial compliance with such request. Thereafter, Parent and Turning Point will be free to complete the Offer and the Merger unless otherwise agreed with the reviewing agency or doing so would prohibited by court order. See “—Section 15—Conditions to the Offer” for certain conditions to the Offer, including conditions with respect to certain governmental actions and “—Section 13—The Transaction Documents—The Merger Agreement—Termination” for certain termination rights pursuant to the Merger Agreement with respect to certain governmental actions.

See “—Section 13— The Transaction Documents—Regulatory Undertakings.”

of such jurisdiction. In those jurisdictions where the applicable laws require that the Offer be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser. We are not aware of any jurisdiction where the making of the Offer is prohibited by any administrative or judicial action pursuant to any valid state statute. If we become aware of any valid state statute prohibiting the making of the Offer or the acceptance of the Shares, we will make a good faith effort to comply with that state statute. If, after a good faith effort, we cannot comply with the state statute, we will not make the Offer to, nor will we accept tenders from or on behalf of, the holders of Shares in that state.

Manually signed facsimile copies of the Letter of Transmittal will be accepted. The Letter of Transmittal and certificates for Shares and any other required documents should be sent to the Depositary at one of the addresses set forth below: