Exhibit 99(D)(4)
TENDER AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of October 3, 2020, is by and among Bristol-Myers Squibb Company, a Delaware corporation (“Parent”), Gotham
Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Tassos Gianakakos (the “Stockholder”).
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of (i) the number of shares of common stock, par value $0.0001 per share (“Common Stock”), of the Company (as defined below) set forth on Schedule I (all such shares, together with any shares of Common Stock of the Company that are hereafter issued to,
or otherwise acquired or owned (including beneficial ownership) by, the Stockholder prior to the termination of this Agreement, being referred to herein as the “ Subject Shares”), (ii) the number of Company Stock Options set forth on Schedule I and (iii) the number of Company RSU Awards set forth on Schedule I;
WHEREAS, concurrently with the execution hereof, Parent, Merger Sub and MyoKardia, Inc., a Delaware corporation (the “Company”), are entering into an Agreement
and Plan of Merger, dated as of the date hereof and as it may be amended from time to time (the “Merger Agreement”), which provides, among other things, for Merger Sub to commence a cash tender offer to purchase all the outstanding shares of Common Stock of the Company (the “Offer”) and, following the completion of the Offer, the merger of Merger Sub with and into the Company (the “Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement (capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement); and
WHEREAS,
as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have required that the Stockholder, and as an inducement and in consideration therefor, the Stockholder (solely in the Stockholder’s capacity as a beneficial owner of the Subject Shares, Company Stock Options and Company RSU Awards) has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
ARTICLE I
AGREEMENT TO TENDER AND VOTE
Section 1.1 Agreement to Tender. Subject to the terms of this Agreement, the Stockholder agrees to validly and irrevocably tender or cause to be tendered in the Offer all of the Subject Shares pursuant to and in accordance
with the terms of the Offer, free and clear of all Liens (other than Liens arising hereunder or as may be applicable under the Securities Act or other applicable securities Laws). Without limiting the generality of the foregoing, as promptly as practicable after the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer, but in no event later than the Expiration Time, the Stockholder shall (a) deliver pursuant to the terms of the Offer (i) a letter of transmittal with respect to the Subject Shares complying with the terms of the Offer, (ii) a Certificate (or affidavits of loss in lieu thereof) representing the Subject Shares or an “agent’s message” (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a Book Entry
Share, and (iii) all other documents or instruments, to the extent applicable, required to be delivered by stockholders of the Company pursuant to the terms of the Offer in order to effect the valid tender of the Subject Shares or (b) instruct the Stockholder’s broker or such other Person that is the holder of record of any Subject Shares beneficially owned by the Stockholder to tender the Subject Shares pursuant to and in accordance with clause (a) of this Section 1.1 and the terms of the Offer. The Stockholder agrees that, once any of the Subject Shares are tendered, the Stockholder will not withdraw and will not cause or direct to be withdrawn any of the Subject Shares from the Offer, unless and until this
Agreement shall have been validly terminated in accordance with Section 5.2.
Section 1.2 Agreement to Vote. Subject to the terms of this Agreement, the Stockholder hereby irrevocably and unconditionally agrees that, during the time this Agreement is in effect, at any annual or special meeting of the stockholders of the Company, however called, including any adjournment or postponement thereof, and in connection with any action proposed to be taken by written consent of the stockholders of the Company, the Stockholder shall, in each case to the fullest extent that the Subject Shares are entitled to vote thereon:
(a) cause all of the Subject Shares to be counted as present thereat for purposes of determining a quorum; and (b) be present (in person or by proxy)