Additional Proxy Soliciting Materials (definitive) (defa14a)
12 2월 2013 - 10:07PM
Edgar (US Regulatory)
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934
Filed by the
Registrant
x
Filed by
a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to § 240.14a-12
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BIOMIMETIC THERAPEUTICS, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s)
Filing Proxy Statement if other than the Registrant)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
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x
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No fee required.
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¨
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4)
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Proposed maximum aggregate value of the transaction:
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(5)
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Total fee paid:
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¨
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Fee paid previously with preliminary materials.
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¨
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify
the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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As previously disclosed, between November 20, 2012 and December 12, 2012, five
purported class action complaints were filed in Delaware and Tennessee against all or some of the following: BioMimetic Therapeutics, Inc. (BioMimetic), certain of BioMimetics current executive officers and directors, Wright
Medical Group, Inc. (Wright), Achilles Merger Sub, Inc. (Merger Sub) and Achilles Acquisition Subsidiary, LLC (Sister Subsidiary) and such complaints were subsequently consolidated in their respective courts (the
Merger Litigation). The Merger Litigation relates to the Agreement and Plan of Merger, dated as of November 19, 2012, by and among BioMimetic, Wright, Merger Sub and Sister Subsidiary.
On February 12, 2013, solely to avoid the costs, risks and uncertainties inherent in litigation, and without admitting any liability
or wrongdoing, BioMimetic and the other named defendants in the Merger Litigation executed a memorandum of understanding with the plaintiffs to settle the Merger Litigation. This memorandum of understanding provides, among other things, that the
parties will seek to enter into a stipulation of settlement which provides for the release of all asserted claims and dismissal with prejudice of the Merger Litigation. The asserted claims will not be released, and the Merger Litigation dismissed,
until such stipulation of settlement is approved by the court. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve such settlement even if the parties were to enter into
such stipulation. Additionally, as part of the memorandum of understanding, BioMimetic has agreed to make certain additional disclosures related to the proposed transactions described in the Merger Agreement, which are set forth below.
The additional disclosures in these Definitive Additional Materials on Schedule 14A (this Proxy Supplement) supplement the
disclosure contained in the definitive proxy statement of BioMimetic filed with the Securities and Exchange Commission (SEC) on January 23, 2013 and mailed to BioMimetics stockholders on or about January 23, 2013 (the
Proxy Statement), and should be read in conjunction with the disclosures contained in the Proxy Statement, which in turn should be read in its entirety. To the extent that information in this Proxy Supplement differs from or updates
information contained in the Proxy Statement, the information in this Proxy Supplement shall supersede or supplement the information in the Proxy Statement. Nothing in this Proxy Supplement, the memorandum of understanding or any stipulation of
settlement shall be deemed an admission of the legal necessity or materiality of any of the disclosures set forth herein. Capitalized terms used herein, but not otherwise defined, shall have the meanings ascribed to such terms in the Proxy
Statement.
The following disclosures supplement the existing disclosures contained under the caption Background of the
Merger beginning on page 54 of the Proxy Statement:
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On September 20, 2012, the BioMimetic Board held a telephonic meeting attended by each member of the BioMimetic Board and representatives of
Ropes & Gray and Goldman Sachs. Dr. Lynch described his most recent interactions with Wright and summarized the terms proposed by Wright. A representative from Goldman Sachs followed with a presentation of its financial analysis
of those terms. The BioMimetic Board discussed the financial analysis and determined it was satisfied with the consideration proposed by Wright and did not believe Wright would be willing to pay more. The BioMimetic Board then discussed whether
to conduct a pre-signing market check and concluded that Goldman Sachs should contact third parties on behalf of
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BioMimetic. With input from BioMimetics management and Goldman Sachs, the BioMimetic Board assessed which companies would be most likely to have an interest in acquiring BioMimetic based on
their financial capacity and strategic focus on BioMimetics business area. The BioMimetic Boards views were further informed by past discussions with various parties regarding potential business combinations, including with Wright,
as well as directors knowledge of the industry and particular companies. As a result of such past conversations, the BioMimetic Board had obtained information about whether certain parties may be interested in acquiring BioMimetic and whether
such parties may remain interested in acquiring BioMimetic before it received U.S. Food and Drug Administration (FDA) approval of Augment
®
Bone Graft. The BioMimetic Board determined to focus the pre-market check on a select group of 15 strategic counter-parties, which the BioMimetic Board believed had
sufficient financial capacity to complete an acquisition of BioMimetic, shared a strategic focus on BioMimetics business area and may be interested in acquiring BioMimetic, in order to concentrate resources on the most likely
acquirors. The BioMimetic Board, in consultation with Goldman Sachs, determined not to contact private equity firms because they were not likely to be interested in acquiring BioMimetic, in part because it was anticipated that BioMimetic would
experience operating losses through 2015, as shown in the forecasts set forth on page 69 of the Proxy Statement. After considerable discussion, it was the unanimous view of the BioMimetic Board that, while BioMimetic was not currently for sale,
management and BioMimetics advisors should simultaneously (1) engage with Wright, by providing diligence materials, conducting reverse due diligence, and discussing possible non-price terms for a potential business combination; and
(2) contact potential other counter-parties to explore their interest in a possible business combination transaction.
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On October 19, 2012, the BioMimetic Board held a telephonic meeting attended by a quorum of the BioMimetic Board and representatives of Ropes & Gray and
Goldman Sachs. Dr. Lynch began with a summary of recent diligence activities between BioMimetic and Wright, including the regulatory diligence sessions held on October 16, 2012, with outside counsel, and summarized his negotiation with
Mr. Davis following the regulatory diligence session. The BioMimetic Board discussed Dr. Lynchs summary and authorized Dr. Lynch to proceed with the negotiations with Wright under the terms discussed by the BioMimetic Board.
Dr. Lynch also noted that the parties had exchanged drafts of the proposed merger agreement and contingent value rights agreement. He then reviewed the tentative timeline for a transaction. A representative of Goldman Sachs also updated the
BioMimetic Board on the market check activities and noted that Bidder B did not appear to be actively engaged and was unlikely to pursue the opportunity. The Goldman Sachs representative stated that representatives of Bidder B had not accessed the
electronic data room containing BioMimetics diligence materials and had not returned phone calls inquiring about Bidder Bs interest in BioMimetic.
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Also on October 26, 2012, Wright and BioMimetics management, along with Larry Papasan and Charles Federico, members of the BioMimetic
Board, and representatives of Goldman Sachs held a diligence session in Arlington, Tennessee to cover financial and tax matters related to both companies and the general business and growth prospects for Wright. Additionally, at the conclusion of
the diligence session on
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October 26, 2012, Mr. Palmisano met with Dr. Lynch and Messrs. Papasan and Federico to discuss Dr. Lynchs role after closing the potential transaction. Dr. Lynch
had recently expressed to Mr. Davis his preference not to continue with the combined company after closing, but Mr. Palmisano stated that it was important to Wright that Dr. Lynch remain an employee of the combined company during a
transition period following the closing date. During its telephonic meeting on October 19, 2012, the BioMimetic Board discussed the upcoming diligence session on October 26, 2012, between Wright and BioMimetics management. The
October 26, 2012 diligence session included the participation of Messrs. Papasan and Federico. During the October 19, 2012 telephonic meeting, however, the BioMimetic Board did not discuss whether at the October 26, 2012
diligence session Dr. Lynch and Messrs. Papasan and Federico would discuss Dr. Lynchs role at BioMimetic after closing the potential transaction with Mr. Palmisano. Such a discussion had not been anticipated to
take place at the October 26, 2012 diligence session.
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The following additional disclosures supplement the existing
disclosures contained under the caption Projected Financial Information beginning on page 67 of the Proxy Statement:
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The non-public internal financial analyses for BioMimetic prepared by its management included in the Proxy Statement assumed a 90% probability of
receiving FDA approval of Augment
®
Bone Graft and Augment
®
Injectable Bone Graft and a 60% probability of receiving FDA approval of Augment
®
Chronic Tendinopathy.
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The following additional disclosures supplement the existing disclosures contained under the caption CVR Projections
beginning on page 69 of the Proxy Statement:
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The following is a summary of certain of the forecasts prepared by management of BioMimetic and provided to the BioMimetic Board and Goldman Sachs (
numbers in
millions
)
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Year
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2012E
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2013E
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2014E
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2015E
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2016E
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2017E
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2018E
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2019E
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2020E
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2021E
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2022E
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Taxes payable
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$
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0.0
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$
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0.0
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0.0
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$
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0.0
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$
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0.0
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$
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0.0
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$
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0.0
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$
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0.0
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$
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0.7
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$
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30.9
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$
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35.2
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Share count
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28.2
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30.7
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33.1
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33.3
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33.6
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33.8
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34.0
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34.3
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34.6
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34.8
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35.1
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The following is a summary of certain of the cash flow forecasts of BioMimetic prepared by management of BioMimetic and provided to the BioMimetic
Board and Goldman Sachs (
numbers in millions
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1
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Year
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2012E
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2013E
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2014E
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2015E
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2016E
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2017E
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2018E
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2019E
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2020E
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2021E
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2022E
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Net cash provided by operating activities
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$
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(23.4
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$
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(23.8
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)
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$
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(22.0
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)
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$
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(5.6
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)
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$
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8.3
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$
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17.5
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$
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27.0
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$
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46.3
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$
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61.8
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$
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48.6
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$
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57.1
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Purchases of property and equipment
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$
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(0.25
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)
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$
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(0.25
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)
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$
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(0.25
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)
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$
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(0.25
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)
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$
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(1.5
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)
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$
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(2.5
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)
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$
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(1.0
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)
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$
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(1.0
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)
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$
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(1.0
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)
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$
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(1.0
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)
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$
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(1.0
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)
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Capitalized patent license fees
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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)
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$
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(0.50
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Unlevered free cash flow
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$
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6.3
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$
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14.5
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$
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25.5
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$
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44.8
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$
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60.3
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$
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47.1
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$
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55.6
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1.
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Assumes (i) the FDAs approval of Augment
®
Bone Graft on March 31, 2013 with a launch date on July 31, 2013, (ii) the probability-adjusted revenue of 90% Augment
®
Bone Graft and Augment
®
Injectable Bone Graft and (iii) revenue from sports medicine products beginning 2018 (with a 60% probability of success for Tendinosis).
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BioMimetics management also provided the BioMimetic Board and Goldman Sachs with BioMimetic managements assessments as to the probability and estimated
timing of achievement of the approval milestone and the product sales milestones with respect to the CVRs, referred to as the CVR projections. The CVR projections were based on the experience and professional judgment of BioMimetics management
after considering, among other matters specific to BioMimetics business, industry performance, general business, economic, regulatory, market and financial conditions and other future events of BioMimetic.
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Important Additional Information Regarding the Transaction
In connection with the proposed transaction, BioMimetic filed the Definitive Proxy Statement and a form of proxy on Schedule 14A on January 23, 2013 and other related materials with the SEC. The
Definitive Proxy Statement and a form of proxy were first mailed to the stockholders of the Company on or about January 23, 2013. BEFORE MAKING ANY VOTING DECISION, STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT, ALL RELATED
SUPPLEMENTS AND AMENDMENTS (IF ANY AND WHEN THEY BECOME AVAILABLE) AND ALL OTHER RELATED MATERIALS CAREFULLY BECAUSE THEY CONTAIN (AND WILL CONTAIN) IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER AND RELATED MATTERS. Investors and stockholders may
obtain copies of the proxy statement and other relevant documents filed with the SEC by BioMimetic free of charge at the SECs web site at
www.sec.gov
. In addition, investors and stockholders may obtain copies of the proxy statement and
other relevant documents filed with the SEC by BioMimetic (when they are available) by going to BioMimetics Investor Relations page on its corporate website at
www.biomimetics.com
.
BioMimetic, Wright and their respective directors and executive officers and other persons
may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction. Information regarding BioMimetics executive officers and directors, and their beneficial ownership of BioMimetics common stock as of
April 12, 2012 is available in BioMimetics proxy statement for its 2012 annual meeting of stockholders, which was filed with the SEC on April 27, 2012. Information regarding Wrights executive officers and directors is available
in Wrights proxy statement for its 2012 annual meeting of stockholders and its current reports on Form 8-K, which were filed with the SEC on March 27, 2012, August 3, 2012 and November 6, 2012, respectively. Other
information regarding the interests of such potential participants in the proxy solicitation are included in the Definitive Proxy Statement and other relevant materials to be filed with the SEC when they become available.
Biomimetic Therapeutics, Inc. (MM) (NASDAQ:BMTI)
과거 데이터 주식 차트
부터 5월(5) 2024 으로 6월(6) 2024
Biomimetic Therapeutics, Inc. (MM) (NASDAQ:BMTI)
과거 데이터 주식 차트
부터 6월(6) 2023 으로 6월(6) 2024