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| BMTI > SEC Filings for BMTI > Form 8-K on 12-Feb-2013 | All Recent SEC Filings |
12-Feb-2013
Other Events
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 BioMimetic's 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 this Current Report on Form 8-K ("Form 8-K") 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 BioMimetic's 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 Form 8-K differs from or updates information contained in the Proxy Statement, the information in this Form 8-K shall supersede or supplement the information in the Proxy Statement. Nothing in this Form 8-K, 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:
• 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
• 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. Lynch's 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 BioMimetic's diligence materials and had not returned phone calls inquiring about Bidder B's interest in BioMimetic.
• Also on October 26, 2012, Wright and BioMimetic's 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
The following additional disclosures supplement the existing disclosures contained under the caption "Projected Financial Information" beginning on page 67 of the Proxy Statement:
• 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.
The following additional disclosures supplement the existing disclosures contained under the caption "CVR Projections" beginning on page 69 of the Proxy Statement:
• 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)
Year 2012E 2013E 2014E 2015E 2016E 2017E 2018E 2019E 2020E 2021E 2022E Taxes payable $ 0.0 $ 0.0 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.7 $ 30.9 $ 35.2 Share count 28.2 30.7 33.1 33.3 33.6 33.8 34.0 34.3 34.6 34.8 35.1 |
Year 2012E 2013E 2014E 2015E 2016E 2017E 2018E 2019E 2020E 2021E 2022E Net cash provided by operating activities $ (23.4 ) $ (23.8 ) $ (22.0 ) $ (5.6 ) $ 8.3 $ 17.5 $ 27.0 $ 46.3 $ 61.8 $ 48.6 $ 57.1 Purchases of property and equipment $ (0.25 ) $ (0.25 ) $ (0.25 ) $ (0.25 ) $ (1.5 ) $ (2.5 ) $ (1.0 ) $ (1.0 ) $ (1.0 ) $ (1.0 ) $ (1.0 ) Capitalized patent license fees $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) $ (0.50 ) Unlevered free cash flow - - - - $ 6.3 $ 14.5 $ 25.5 $ 44.8 $ 60.3 $ 47.1 $ 55.6 |
1. Assumes (i) the FDA's 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).
• BioMimetic's management also provided the BioMimetic Board and Goldman Sachs with BioMimetic management's 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 BioMimetic's management after considering, among other matters specific to BioMimetic's business, industry performance, general business, economic, regulatory, market and financial conditions and other future events of BioMimetic.
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 SEC's 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 BioMimetic's Investor Relations page on its corporate website at www.biomimetics.com.
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