- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
21 8월 2010 - 5:22AM
Edgar (US Regulatory)
UNITED
STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
x
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Filed by a Party other than the
Registrant
o
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Check the appropriate box:
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o
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Preliminary Proxy Statement
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o
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Confidential, for
Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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o
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Definitive Proxy Statement
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x
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Definitive Additional Materials
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o
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Soliciting Material Pursuant to
§240.14a-12
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BioSphere
Medical, Inc.
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(Name
of Registrant as Specified In Its Charter)
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(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the
appropriate box):
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x
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No fee required.
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o
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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
transaction:
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(5)
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Total fee paid:
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o
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Fee paid previously with preliminary
materials.
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o
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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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Additional
Materials Filed Pursuant to Rule 14a-6
On August 18, 2010,
BioSphere Medical, Inc. (BioSphere or the Company) sent to holders of
Company options the following information regarding the treatment of their
options in connection with the proposed merger of BioSphere and a subsidiary of
Merit Medical Systems, Inc.
Dear
Holders of Stock Options of BioSphere Medical, Inc.:
As
you know, on May 13, 2010, we announced that BioSphere Medical, Inc.
(BioSphere) entered into an agreement and plan of merger (the Merger
Agreement) with Merit Medical Systems, Inc., a Utah corporation (Merit),
and Merit BioAcquisition Co., a Delaware corporation and wholly-owned
subsidiary of Merit (Merger Sub).
On
June 28, 2010, we sent you a notice describing the consideration to be
paid in the Merger and detailing the treatment of BioSphere stock options in
connection with the Merger. In that
notice we indicated that you would receive a subsequent notice from the Company
informing you of a time after which you will no longer be permitted to exercise
your BioSphere stock options. As further
discussed in the attached notice, which you should carefully review, the
Company is now informing you that it will not accept exercises of stock options
after
4:00 p.m. Rockland, Massachusetts time, on August 24,
2010
, unless we notify you that this deadline has been
extended. Accordingly, if you wish to
exercise your Options, you must do so before this deadline.
We
encourage you to consult with your personal tax, accounting and legal advisors
regarding the treatment of your stock options under the terms of the Merger
Agreement.
Warmest
Regards,
Martin J. Joyce
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Executive Vice President
and Chief Financial Officer
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NOTICE TO HOLDERS OF OPTIONS TO PURCHASE COMMON STOCK OF BIOSPHERE
MEDICAL, INC.
TO
THE HOLDERS OF OPTIONS TO PURCHASE SHARES OF COMMON STOCK, PAR VALUE $0.01 PER
SHARE (the
Common Stock
) OF BIOSPHERE MEDICAL, INC. (the
Company
),
GRANTED PURSUANT TO THE COMPANYS
1997 Stock Incentive Plan, as amended
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2006
Stock Incentive Plan, as amended
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AND
OPTION AGREEMENTS ISSUED PURSUANT TO SUCH PLANS (the
Options
).
As
set forth in the Notice to Holders of Options to Purchase Common Stock and/or
Shares of Restricted Stock of BioSphere Medical, Inc., which was sent to
holders of Options on June 28, 2010, the Company has entered into an
Agreement and Plan of Merger (the
Merger Agreement
), dated as of May 13,
2010, with Merit Medical Systems, Inc. (
Merit
) and Merit
BioAcquisition Co. (
Merger Sub
).
Pursuant to the terms of the Merger Agreement, and subject to the
conditions thereof, Merger Sub will merge with and into BioSphere, and
BioSphere will become a wholly-owned subsidiary of Merit (the
Merger
). If the Merger is completed, holders
of
outstanding shares of Common Stock will be entitled to receive approximately
$4.38 in cash for each share of Common Stock owned by them as of the date of
the Merger.
(1)
We
currently anticipate that the Merger will close on or about September 9,
2010.
In
accordance with the terms of the Merger Agreement, each vested and unvested
Option to purchase shares of Common Stock that is outstanding immediately prior
to the effective time of the merger (the
Effective Time
) will become
fully vested and be cancelled upon the Effective Time in exchange for a lump
sum cash payment equal to $4.38 less the exercise price per share for the
Option, multiplied by the number of shares issuable under the Option. In the event an Option has an exercise price
per share equal to or greater than $4.38, the Option will be cancelled, without
any consideration being payable in respect thereof.
NOTICE IS HEREBY GIVEN that the Company will not accept exercises of
Options after
4:00 p.m., Rockland, Massachusetts time, on August 24,
2010
, unless we notify you that this deadline has been extended. Accordingly, if you wish to exercise your
Options, you must do so before this deadline.
The
information in this Notice is qualified in its entirety by the terms of the
Merger Agreement filed by the Company with the United States Securities and
Exchange Commission (
SEC
) on May 14, 2010 as an exhibit to the
Companys Current Report on Form 8-K.
You may obtain a copy of the Merger Agreement through the SECs website,
at http://www.sec.gov or through the Companys website at
http://www.biospheremed.com. Each holder
should carefully read the Merger Agreement for additional information and
details about the Merger and the treatment of Options.
As
a reminder, U.S. securities laws prohibit you from trading in Company
securities
while you possess material, nonpublic information about the Company, and all
trading in Company securities is subject to the Companys Insider Trading
Policy.
(1) The calculation of the per share amount that the holders
of outstanding shares of Common Stock will receive in the Merger $4.38
assumes the conversion of all outstanding shares of BioSpheres series A
preferred stock into Common Stock prior to the effective time of the Merger,
which the Company currently anticipates.
If all of the outstanding shares of BioSpheres series A preferred stock
are not converted into Common Stock prior to the effective time of the Merger,
the amounts that the holders of shares of Common Stock will be entitled to
receive, and in turn the amounts that the holders of Options will be entitled
to receive, in connection with the Merger will differ from the amounts set
forth in this Notice.
* * *
FORWARD-LOOKING STATEMENTS
Any statements in this
filing about future expectations, plans and prospects for BioSphere, including
statements with respect to the consummation and timing of the merger,
constitute forward-looking statements within the meaning of The Private
Securities Litigation Reform Act of 1995. These statements contain the words believes,
anticipates, plans, expects, will and similar expressions. Actual
results may differ materially from those currently anticipated due to a number
of risks and uncertainties that are subject to change based on factors that
are, in many instances, beyond BioSpheres control. Risks and uncertainties
that could cause results to differ from expectations include: uncertainties
relating to the timing of the merger; uncertainties as to how BioSphere
stockholders will vote their shares with respect to the merger; the risk that
competing offers will be made; the possibility that various closing conditions
for the transaction may not be satisfied or waived, including that a
governmental entity may prohibit, delay or refuse to grant approval for the
consummation of the transaction; the effects of disruption from the transaction
making it more difficult to maintain relationships with employees, customers,
suppliers, other business partners or governmental entities; other business
effects, including the effects of industry, economic or political conditions
outside of BioSpheres control; transaction costs; actual or contingent
liabilities; or other risks and uncertainties discussed in documents filed with
the SEC by BioSphere, including factors discussed in the Risk Factors section
of BioSpheres most recent Quarterly Report on Form 10-Q filed with the
SEC on August 13, 2010, and other documents BioSphere periodically files
with the SEC. In addition, the forward-looking statements included in this
filing represent BioSpheres views as of the date of this filing. BioSphere
anticipates that subsequent
events and developments will
cause its views to change. However, while BioSphere may elect to update these
forward-looking statements at some point in the future, it specifically
disclaims any obligation to do so. These forward-looking statements should not
be relied upon as representing BioSpheres views as of any date subsequent to
the date of this filing.
ADDITIONAL INFORMATION ABOUT THE
MERGER AND WHERE TO FIND IT
In connection with the
proposed merger, BioSphere has filed a definitive proxy statement with the
Securities and Exchange Commission. INVESTORS AND SECURITY HOLDERS ARE ADVISED
TO READ THE DEFINITIVE PROXY STATEMENT BECAUSE IT CONTAINS IMPORTANT INFORMATION
ABOUT THE MERGER AND THE PARTIES THERETO. Investors and security holders are
able to obtain free copies of the Proxy Statement and other documents filed
with the SEC by BioSphere and Merit through the website maintained by the SEC
at http://www.sec.gov. In addition, investors and security holders are able to
obtain free copies of the Proxy Statement from BioSphere by calling BioSphere
Investor Relations at 781-681-7900, by requesting them in writing from Investor
Relations at BioSphere Medical, Inc., 1050 Hingham Street, Rockland, MA
02370, or by visiting the Investor Relations page of BioSpheres website
at http://www.biospheremed.com.
BioSphere and Merit, and
their respective directors and executive officers, may be deemed to be
participants in the solicitation of proxies from BioSpheres stockholders in
connection with the proposed merger. Information concerning the interests of
BioSpheres participants, which may be different from those of BioSpheres
stockholders generally, in the solicitation is set forth in BioSpheres Annual
Report on Form 10-K for the year ended December 31, 2009, its annual
meeting proxy statement dated April 16, 2010 and the definitive proxy
statement relating to the merger dated August 2, 2010, which are filed
with the SEC. As of June 1, 2010, BioSpheres directors and executive
officers beneficially owned approximately 2,442,005 shares, or 11.92 percent,
of BioSpheres common stock. A more complete description of the interests of
the officers and directors is available in the definitive proxy statement
relating to the merger.
Biosphere Medical (MM) (NASDAQ:BSMD)
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