transaction, as well as the terms of the proposed form of merger agreement and the engagement letter with Goldman Sachs. Following such discussion, the Board agreed that Turning Point should seek an additional price increase and request a best and final price; concurred that Dr. Countouriotis should indicate that they were seeking an offer price of $79.00 per share; determined that entering into exclusivity with Bristol-Myers Squibb would be premature; and authorized sharing the form of merger agreement with Ms. Mily and providing Bristol-Myers Squibb with access to diligence materials necessary for Bristol-Myers Squibb to complete its corporate due diligence. In addition, the Board approved the formal engagement of Goldman Sachs, and directed Turning Point senior management to enter into the engagement letter with Goldman Sachs.
After the meeting with the Board, later that day, Dr. Countouriotis spoke again with Ms. Mily and conveyed the Board’s desire for a $79.00 per share offer price and requested that Bristol-Myers Squibb come back with a best and final offer. Ms. Mily requested that Dr. Countouriotis provide a draft of the proposed merger agreement for consideration in connection with an updated offer.
On May 27, 2022, representatives of Goldman Sachs contacted Dyal to discuss process and next steps.
Also on May 27, 2022, Ms. Mily contacted Dr. Countouriotis to indicate that Bristol-Myers Squibb would not be in a position to deliver a revised acquisition proposal without a draft merger agreement and the ability to conduct final due diligence. The draft proposed merger agreement was sent by representatives of Cooley to representatives of Kirkland & Ellis (“Kirkland”), outside counsel for Bristol-Myers Squibb, later that day (which proposed a two-step tender offer), and an updated capitalization table for Turning Point was made available to Bristol-Myers Squibb.
Also on May 27, 2022, Turning Point entered into an engagement letter, as approved by the Board, with Goldman Sachs, as described in the section below titled “—Opinion of Goldman Sachs & Co. LLC.”
Later on May 27, 2022, the Board held a meeting with members of Turning Point senior management, representatives of Goldman Sachs and representatives of Cooley. Members of Turning Point senior management provided an update on the status of diligence discussions with Bristol-Myers Squibb.
On May 28, 2022, Kirkland and Arnold & Porter, outside regulatory counsel for Bristol-Myers Squibb, had a call with Cooley to discuss the proposed structure of the transaction and regulatory matters.
On May 29, 2022, Ms. Mily contacted Dr. Countouriotis to reiterate the need for Bristol-Myers Squibb to complete its corporate due diligence in order to meet the planned timeline of announcing a definitive acquisition agreement on June 3, 2022. Ms. Mily also indicated that Bristol-Myers Squibb’s markup of the draft merger agreement would be provided by the end of day on May 30, 2022. Subsequently, access to corporate due diligence was granted to Bristol-Myers Squibb and various diligence calls were scheduled.
Also on May 29, 2022, the Board held a meeting with members of Turning Point senior management, representatives of Goldman Sachs and representatives of Cooley. Members of Turning Point senior management provided an update on the status of discussions with Bristol-Myers Squibb, including the status of Bristol-Myers Squibb’s corporate due diligence review, as well as the discussions with respect to regulatory matters and transaction structure.
Between May 29 and May 31, 2022, Bristol-Myers Squibb and its legal and financial advisors conducted multiple diligence meetings by video call with members of Turning Point senior management and its legal, financial and tax advisors.
On May 30, 2022, representatives of Kirkland delivered a revised draft of the merger agreement to representatives of Cooley that, among other things, proposed a termination fee of 3.75% of the equity value and proposed that Bristol-Myers Squibb would not be obligated to engage in any divestures or take other remedial actions in order to obtain regulatory clearances.
On June 1, 2022, representatives of Cooley delivered a revised draft of the merger agreement to representatives of Kirkland. The revised draft merger agreement proposed a termination fee of 3.00% of equity value and proposed that Bristol-Myers Squibb be obligated to undertake certain remedial actions to obtain regulatory clearance. Later on the same day, representatives of Kirkland had a conference call with representatives of Cooley to discuss the revised draft of the merger agreement.
Also on June 1, 2022, Ms. Mily contacted Dr. Countouriotis to update her on the status of Bristol-Myers Squibb’s progress on finalizing its due diligence and to highlight open areas requiring further due diligence