Notice of Certification of Shareholder Class Regarding Acquisition of BioForm Medical, Inc. (BFRM) by Merz GmbH & Co. KGaA Pursuant to January 15, 2010 Cash Tender Offer
Superior Court of the State of California, County of San Mateo
IF YOU OWNED SHARES OF THE COMMON STOCK OF BIOFORM MEDICAL, INC. (“BIOFORM”) AND EITHER (1) TENDERED YOUR SHARES TO MERZ GmbH & CO. KGaA (“MERZ”) PURSUANT TO THE JANUARY 15, 2010 CASH TENDER OFFER, OR (2) DID NOT TENDER BUT YOUR SHARES WERE NONETHELESS CONVERTED INTO A RIGHT TO RECEIVE THE SAME CASH TENDER OFFER PRICE OF $5.45, A CLASS ACTION LAWSUIT MAY AFFECT YOUR RIGHTS
A California Court authorized this notice. This is not a solicitation from a lawyer.1
YOUR LEGAL RIGHTS AND OPTIONS IN THIS CLASS ACTION
Do Nothing and Stay in the Class: If you do nothing you will be bound by the results in the class action, whether favorable or not.
Exclude Yourself from the Class: If you exclude yourself, then you will not participate in the benefits obtained in the class action, if any, and you will not be bound by the result, whether favorable or not. You may hire a lawyer and bring your own lawsuit.
1. Why did I get this notice?
If you owned shares of BioForm common stock that were tendered to Merz pursuant to the January 15, 2010 cash tender offer, or your shares were converted into a right to receive the same cash tender offer price of $5.45 per share following the Merz tender offer, then your rights may be affected. This notice explains that the Court has allowed, or “certified,” a class action lawsuit that may affect you. The trial of this lawsuit will decide whether the claims being made against Defendants, on your behalf, are valid. Judge Marie S. Weiner of the San Mateo County Superior Court is presiding over this class action. The lawsuit is known as McElroy, et al. v. Basta, et al., Civ. No. 491204.
2. What is this lawsuit about?
This lawsuit is about the merger of BioForm into Merz through a cash tender offer in January-February 2010 in which Merz acquired all of BioForm’s common stock at a price of $5.45 per share. The Class Representative claims, among other things, that the $5.45 price was unfairly low and that BioForm’s Board of Directors should have sought and obtained a higher price. Based upon these claims, the Class Representative seeks damages from the Defendants for the benefit of the Class.
Defendants deny that they did anything wrong. Defendants maintain, among other things, that they properly exercised their business judgment in good faith to obtain a price of $5.45 that provided a fair premium for BioForm’s shareholders. Based on their defenses, Defendants are seeking dismissal of this lawsuit and deny that the Class is entitled to any damages or other relief.
The Court has not decided whether the Class Representative or Defendants are correct. Lawyers for the Class must prove the claims against Defendants at trial.
3. Who is included in the Class?
You are a member of the Class if you are a former shareholder of BioForm who either (a) tendered your shares of BioForm common stock to Merz pursuant to the January 15, 2010 cash tender offer, or (b) did not tender your shares of BioForm common stock to Merz but your BioForm shares were nonetheless automatically converted into a right to receive the same cash tender offer price of $5.45 per share.
4. Why is this a class action?
In a class action, one or more people, called “class representatives” (in this case, Emmy McElroy), sue on behalf of people who have similar claims. All of these people are a “class” or “class members.” One court resolves the issues for all class members, except for those who exclude themselves from the class. Judge Marie S. Weiner in the San Mateo County Superior Court in California is presiding over this class action.
5. What am I giving up if I do nothing and stay in the class?
Unless you exclude yourself, you are staying in the Class, and that means that you can’t sue, continue to sue, or be part of any other lawsuit against the Defendants about the legal issues in this case. It also means that all of the Court’s orders, whether favorable or not, will apply to you and legally bind you.
EXCLUDING YOURSELF OR “OPTING OUT” OF THE CLASS ACTION
If you do not wish to be bound by any judgment, decision, or final disposition rendered in this lawsuit, whether it is favorable or not, then you must take steps to get out. This is called excluding yourself – or is sometimes referred to as “opting out” of the class action.
6. How do I exclude myself or get out of the class action?
To exclude yourself from the class action, you must send a letter by mail saying that you want to be excluded from this lawsuit. Be sure to include your name, address, and your signature. You must mail your exclusion request postmarked no later than July 25, 2012, to: BioForm Notice Administrator, c/o RG/2 Claims Administration LLC, P.O. Box 59479, Philadelphia, PA 19102-9479.
You can’t exclude yourself on the phone or by e-mail. If you ask to be excluded, you will not get the benefits, if any, that may be obtained in the class action, and will also not be bound by any judgment if Defendants win their case. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) the Defendants in the future about the legal issues in this case.
7. If I don’t exclude myself, can I sue the Defendants for the same thing later?
No. Unless you exclude yourself, you give up the right to sue the Defendants for the claims in this class action. If you have a pending lawsuit about the legal issues in this case, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, the exclusion deadline is July 25, 2012.
THE LAWYERS REPRESENTING YOU
8. Do I have a lawyer in this case?
The Court decided that the law firms of Bramson, Plutzik, Mahler & Birkhaeuser, LLP and Levi & KORSINSKY LLP are qualified to represent all Class members and appointed them as Co-Class Counsel. More information about Co-Class Counsel is available at http://www.bramsonplutzik.com and http://www.zlk.com.
9. Should I get my own lawyer?
If you do not wish to be represented by Co-Class Counsel, you may enter an appearance through your own lawyer that you hire. To do so, you must file an Entry of Appearance with the Clerk of the Court. You will remain a Class member with representation by your own lawyer. You will be responsible for the fees and costs of your lawyer.
10. How will the lawyers be paid?
If Co-Class Counsel get benefits for the Class, they may ask the Court for fees and expenses. You will not have to pay these fees and expenses. If the Court grants Co-Class Counsel’s request, the fees and expenses would be either deducted from any money obtained for the Class or paid separately by Defendants.
11. How and when will the Court decide who is right?
As long as the case isn’t resolved by a settlement or otherwise, Co-Class Counsel will have to prove the claims at a trial. If you want to attend, please call the Court Clerk to confirm the trial date, department and time.
12. Do I have to come to the trial?
You do not need to attend the trial. Co-Class Counsel will present the case for the Class members, and Defendants will present the defense. You are welcome to come at your own expense. If you wish to participate in the trial, you should contact Co-Class Counsel.
13. Will I get money after the trial?
If the Class Representative wins at trial and the Court holds one or more Defendants liable for damages, then you will get money after trial. If the Class Representative does not prove the claims in the case at trial, then you will not get money after trial. How much money you would get if the Class Representative wins depends on the amount of any damages awarded by the Court and how many shares of BioForm you owned that were tendered to Merz or automatically converted into the right to receive $5.45 per share. If the Class obtains monetary relief as a result of the trial or a settlement, you will be notified how to participate. We do not know when this will be.
14. Additional Information
Complete copies of the pleadings, orders and other documents filed in this litigation, to the extent not under seal, may be examined and copied at any time during regular office hours at the offices of the Civil Clerk of the Court, San Mateo Superior Court, Hall of Justice, First Floor, Room A, 400 County Center, Redwood City, California 94063. The case is entitled McElroy, et al. v. Basta, et al., Civ. No. 491204.
If you have any questions concerning anything discussed in this notice, or wish to provide us with your current name or address, please write to Co-Class Counsel at:
LEVI & KORSINSKY LLP
BRAMSON, PLUTZIK, MAHLER & Birkhaeuser, LLP
PLEASE DO NOT CALL OR WRITE TO THE COURT FOR INFORMATION OR ADVICE.
DATED: MAY 22, 2012
BY ORDER OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN MATEO
1Record Holders: If you were a record holder of BioForm common stock that was tendered in the tender offer or converted into a right to receive the same cash tender offer price by operation of Delaware’s short-form merger statute, but were not the beneficial owner of those shares, you are requested to forward this notice to the person or persons who were the beneficial owners of those shares immediately prior to their tender to Merz or conversion into cash pursuant to the tender offer. Extra copies of this notice for distribution to such beneficial holders will be provided to you for free upon request to BioForm Notice Administrator, c/o RG/2 Claims Administration LLC, P.O. Box 59479, Philadelphia, PA 19102-9479.
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