- Amended Statement of Ownership: Solicitation (SC 14D9/A)
February 12 2010 - 4:22PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4)
BIOFORM MEDICAL, INC.
(Name of Subject Company)
BIOFORM MEDICAL, INC.
(Name of Person(s) Filing Statement)
Common Stock,
par value $0.01 per share
(Title of Class of Securities)
09065G 107
(CUSIP Number of Class of Securities)
Steven L. Basta
Chief Executive Officer
1875 South Grant Street, Suite 200
San Mateo, California 94402
(650) 286-4000
(Name, address and telephone number of person authorized to receive
notice and communications on behalf of the person(s) filing statement).
With a copy
to:
David J. Saul, Esq.
Ropes & Gray LLP
1900 University Avenue, 6th Floor
East Palo Alto, California 94303
(650) 617-4090
¨
|
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
|
Purpose of the Amendment
This Amendment No. 4 (
Amendment No. 4
) to Schedule 14D-9 further amends and supplements the Schedule 14D-9 filed
with the Securities and Exchange Commission (
SEC
) on January 15, 2010, and as amended by Amendment No. 1 filed with the SEC on January 20, 2010, Amendment No. 2 filed with the SEC on January 26, 2010 and
Amendment No. 3 filed with the SEC on February 2, 2010 (the
Schedule 14D-9
), by BioForm Medical, Inc., a Delaware corporation (the
Company
or
BioForm
). The Schedule 14D-9 and this
Amendment No. 4 relate to the tender offer by Vine Acquisition Corp. (
Offeror
), a Delaware corporation and an indirect wholly-owned subsidiary of Merz GmbH & Co. KGaA, a limited partnership by shares formed under the
laws of the Federal Republic of Germany (
Parent
or
Merz
), to purchase all of the issued and outstanding shares of Common Stock, par value $0.01 per share, of the Company (collectively, the
Shares
), at a purchase price of $5.45 per share, net to the seller in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated
January 15, 2010, and in the related Letter of Transmittal, copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B), to the Schedule 14D-9, respectively.
Capitalized terms used, but not otherwise defined, in this Amendment No. 4 shall have the meanings given in the Schedule 14D-9. The information in the Schedule 14D-9 is incorporated into this
Amendment No. 4 by reference to all applicable items in the Schedule 14D-9, except that such information is hereby amended and supplemented to the extent specifically provided herein.
Item 8.
|
Additional Information.
|
Item 8
(Additional Information) of the Schedule 14D-9 is hereby amended and supplemented by replacing the existing Item 8(k) in its entirety with the following:
(k) Litigation.
On January 13, 2010, a purported stockholder of the
Company filed a purported class action lawsuit in the Superior Court of the State of California, San Mateo County, captioned Hassan Hamedi v. Steven Basta, et al., Case No. CIV491204 (the
Action
), against the Company and each of
its directors. The Action purports to be brought individually and on behalf of the public stockholders of the Company. The Action alleges that the Company director defendants breached their fiduciary duties to the Companys stockholders in
connection with the Transaction, and that the Company aided and abetted such alleged breach of the Company director defendants fiduciary duties. Based on these allegations, the Action seeks, among other relief, injunctive relief preliminarily
and permanently enjoining the Transaction. The plaintiff amended the complaint on January 25, 2010 to set forth additional substantive allegations, including articulating alleged deficiencies in the Schedule 14D-9 that result in the Schedule 14D-9
being allegedly materially misleading and/or incomplete.
On February 11, 2010, the Superior Court denied an
ex parte
motion made by the plaintiff for a temporary restraining order to enjoin and/or postpone the closing of the Transaction.
A copy of the complaint and the amended complaint in the Action are filed as Exhibits (a)(5)(A) and (a)(5)(B) hereto, respectively, and are incorporated herein by reference. The foregoing summary is qualified in its entirety by reference to
Exhibits (a)(5)(A) and (a)(5)(B).
1
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete
and correct.
|
|
|
|
|
|
|
|
|
Dated: February 12, 2010
|
|
|
|
BIOFORM MEDICAL, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ S
TEVEN
L.
B
ASTA
|
|
|
|
|
|
|
|
|
Steven L. Basta
|
|
|
|
|
|
|
|
|
Chief Executive Officer
|
2
Bioform Medical (MM) (NASDAQ:BFRM)
Historical Stock Chart
From Apr 2024 to May 2024
Bioform Medical (MM) (NASDAQ:BFRM)
Historical Stock Chart
From May 2023 to May 2024