UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [_]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[_] Preliminary Proxy Statement
[_] Confidential, for Use of the Commission Only (as permitted
by Rule 14a-6(e)(2))
[_] Definitive Proxy Statement
[_] Definitive Additional Materials
[X] Soliciting Material Pursuant to ss.240.14a-12
Aspect Medical Systems, Inc.
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(Name of Registrant as Specified In Its Charter)
First BioMed, L.P.
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) 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) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[_] Fee paid previously with preliminary materials:
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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.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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On March 12, 2009, representatives of First BioMed, L.P. delivered a
notice (the "Notice") to Mr. J. Neal Armstrong, the Vice President, Chief
Financial Officer and Secretary of Aspect Medical Systems, Inc. (the "Company"),
in accordance with Section 1.10 and Section 1.11 of the Amended and Restated
Bylaws of the Company (the "Bylaws"). In the Notice, the Stockholder (i)
nominated Jon C. Biro, Melvin L. Keating and Vincent P. Scialli for election to
the Company's Board of Directors at the Company's 2009 annual meeting of
stockholders and stated that it intends to reaffirm those nominations at such
annual meeting and (ii) proposed that the Company's stockholders approve
resolutions (A) recommending that the Board of Directors form a special
committee of independent directors to study ways to optimize the Company's
capital structure and otherwise maximize stockholder value and (B) to amend the
Company's Bylaws to require that the annual meeting be held no later than May 21
in each year.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY OR ON BEHALF OF FIRST BIOMED, L.P. AND
CERTAIN OF ITS AFFILIATES FROM THE STOCKHOLDERS OF ASPECT MEDICAL SYSTEMS, INC.
FOR USE AT ITS ANNUAL MEETING WHEN AND IF THEY BECOME AVAILABLE BECAUSE THEY
WILL CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE
PARTICIPANTS IN ANY SUCH PROXY SOLICITATION. WHEN AND IF COMPLETED, A DEFINITIVE
PROXY STATEMENT AND A FORM OF PROXY WILL BE MADE AVAILABLE TO THE STOCKHOLDERS
OF ASPECT MEDICAL SYSTEMS, INC. FROM THE PARTICIPANTS AT NO CHARGE AND WILL ALSO
BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV. INFORMATION RELATING TO THE POTENTIAL PARTICIPANTS IN THE
POTENTIAL PROXY SOLICITATION IS CONTAINED IN ANNEX 1 ATTACHED HERETO AND IS
INCORPORATED HEREIN BY REFERENCE.
ANNEX 1
POTENTIAL PARTICIPANTS
The potential participants in the solicitation (the "Solicitation") of
proxies from the stockholders of Aspect Medical Systems, Inc. (the "Company")
may include the following: (i) First BioMed, L.P., a New York limited
partnership ("First BioMed"), (ii) First Manhattan Co., a New York limited
partnership ("FMC"), (iii) Samuel F. Colin, Neal K. Stearns and Anthony
Avicolli, each as an employee of FMC, and (iv) Jon C. Biro, Melvin L. Keating
and Vincent P. Scialli, each as a nominee for election as a director
(collectively, the "Nominees").
First BioMed is principally engaged in the business of investing in
securities. First BioMed's business address is 437 Madison Avenue, New York, New
York 10022. First BioMed is the holder of record of 1,000 shares and the
economic owner of 863,364 shares of common stock, $0.01 par value per share
("Common Stock"), of the Company. However, First BioMed does not beneficially
own any shares of Common Stock within the meaning of Section 13(d) of the
Securities Exchange Act of 1934 and the rules thereunder.
FMC is registered as a broker-dealer under the Securities Exchange Act
of 1934 and as an investment adviser under the Investment Advisers Act of 1940,
and its principal business is investment management. The sole general partner of
FMC is First Manhattan LLC, a New York limited liability company. FMC's business
address is 437 Madison Avenue, New York, New York 10022. FMC serves as
investment adviser to First Health, L.P., First Health Limited and First Health
Associates, L.P. (collectively, the "First Health Funds"). First Health, L.P.,
First Health Limited and First Health Associates, L.P. presently hold 580,191,
355,500 and 74,700 shares, respectively, of Common Stock in their accounts. FMC
and Dr. Samuel F. Colin are the Co-Managing Members of First BioMed Management
Associates, LLC, a Delaware limited liability company ("FBMA"). FBMA is
registered as an investment adviser under the Investment Advisers Act of 1940,
and its principal business is investment management. FBMA serves as investment
adviser to First BioMed and First BioMed Portfolio, L.P. (collectively, the
"First BioMed Funds", and collectively with the First Health Funds, the "First
Manhattan Funds"). First BioMed and First BioMed Portfolio, L.P. presently hold
863,364 and 487,815 shares, respectively, of Common Stock in their accounts. By
virtue of its role as investment adviser to the First Health Funds and as a
Co-Managing Member of FBMA, FMC may be deemed to be a beneficial owner of
2,361,570 shares of Common Stock held for the accounts of the First Manhattan
Funds. The business address of each of the First Manhattan Funds is 437 Madison
Avenue, New York, New York 10022. Information concerning shares of Common Stock
purchased within the last two years for the accounts of any of the First
Manhattan Funds is contained in Annex 2 and is incorporated herein by reference.
Dr. Samuel F. Colin is a Senior Managing Director and a limited partner
of FMC, and his principal business is acting as portfolio manager for the First
Manhattan Funds. Dr. Colin's business address is 437 Madison Avenue, New York,
New York
10022. By virtue of his role as portfolio manager of the First Manhattan Funds,
Dr. Colin may be deemed to be a beneficial owner of 2,361,570 shares of the
Common Stock held for the accounts of the First Manhattan Funds. Information
concerning shares of Common Stock purchased within the last two years for the
accounts of any of the First Manhattan Funds is contained in Annex 2 and is
incorporated herein by reference.
Neal K. Stearns is a Senior Managing Director of FMC and his business
address is 437 Madison Avenue, New York, New York 10022.
Anthony Avicolli is a Managing Director of FMC and his business address
is 437 Madison Avenue, New York, New York 10022.
Jon C. Biro currently is the Executive Vice President and Chief
Financial and Accounting Officer and serves as a director of Consolidated
Graphics, Inc. (a web- and digital-based commercial printing company, the
principal business address of which is 5858 Westheimer, Suite 200, Houston, TX
77057 (NYSE: CGX)). Until 2008, Mr. Biro was the Chief Financial Officer and
served as a director of ICO, Inc. (a polymer production company, the principal
business address of which is 1811 Bering Drive, Suite 200, Houston, TX 77057
(NASDAQ: ICOC)). Mr. Biro's business address is 5858 Westheimer, Suite 200,
Houston, TX 77057.
Melvin L. Keating currently serves as a director and member of the
Audit, Compensation and Finance Committees of LCC International, Inc. (a
wireless engineering company, the principal business address of which is 7900
Westpark Drive Suite A-315, McLean, VA 22102 (OTC: LCCI)) and as a director and
member of the Operations and Audit Committees of White Electronic Designs
Corporation (an electronics and semiconductor manufacturing company, the
principal business address of which is 3601 East University Drive, Phoenix, AZ
85034 (NASDAQ: WEDC)). From October 2005 to September 2008, Mr. Keating was the
President and CEO of Alliance Semiconductor Corporation (a holding company, the
principal business address of which is 4633 Old Ironsides Dr, #240, Santa Clara,
CA 95054 (OTC: ALSC)), and from April 2004 to September 2005, Mr. Keating was
the Executive Vice President, CFO and Treasurer of Quovadx Inc. (a healthcare
software and services company now known as Healthvision, the principal business
address of which is 5030 Riverside Drive, Suite 300, Irving, TX 75039). Mr.
Keating's business address is 18 Driftwood Dr., Livingston, NJ 07039.
Vincent P. Scialli currently is a Managing Director of FMC. From May
2001 to February 2005, Mr. Scialli was employed at Lord Abbett & Co. LLC (an
investment management company, the principal business address of which is 90
Hudson Street, Jersey City, NJ 07302), at which his last role was as Vice
President and Assistant Portfolio Manager. Mr. Scialli beneficially owns 2,000
shares of the Common Stock, which were purchased by Mr. Scialli on July 24, 2008
for a consideration of $6.9455 per share. Mr. Scialli's business address is 437
Madison Avenue, New York, New York 10022.
FMC has agreed to indemnify the Nominees for certain losses, if any,
arising from their participation in the solicitation of proxies from the
stockholders of the Company in connection with the election of directors at the
Company's annual meeting of stockholders to be held in 2009 and to reimburse
them for their reasonable out-of-pocket expenses in connection therewith.
ANNEX 2
INFORMATION CONCERNING SHARES OF COMMON STOCK OF THE
COMPANY PURCHASED WITHIN THE LAST TWO YEARS FOR THE
ACCOUNTS OF ANY OF THE FIRST MANHATTAN FUNDS
FIRST HEALTH ASSOCIATES, L.P.
Date Shares Cost/Unit Total Cost
- ---- ------ --------- ----------
6/20/07 8,100 15.48 125,423.64
6/21/07 8,100 15.25 123,545.25
6/25/07 1,000 14.96 14,955.25
6/26/07 1,700 14.95 25,421.29
6/27/07 1,600 14.88 23,804.16
6/29/07 2,400 15.04 36,091.20
7/02/07 1,000 15.16 15,164.30
7/05/07 1,300 15.17 19,725.16
7/06/07 100 15.36 1,536.20
7/10/07 2,000 15.27 30,540.60
7/11/07 2,100 15.19 31,893.75
7/17/07 1,300 15.18 19,738.29
7/18/07 400 15.05 6,019.16
4/11/08 2,600 5.67 14,747.46
4/14/08 5,800 5.64 32,712.58
4/15/08 2,100 5.54 11,624.13
4/16/08 2,500 5.54 13,858.75
4/17/08 9,200 6.39 58,804.56
4/30/08 1,000 6.62 6,624.70
5/01/08 500 6.63 3,315.30
5/02/08 1,200 6.63 7,598.40
5/05/08 900 6.36 5,723.10
5/06/08 600 6.48 3,885.54
5/07/08 800 6.37 5,099.68
5/08/08 500 6.17 3,083.30
5/09/08 800 6.00 4,796.16
5/12/08 1,600 5.72 9,147.84
5/13/08 1,200 5.87 7,046.88
5/14/08 800 5.70 4,558.16
5/15/08 700 5.56 3,891.93
5/16/08 1,300 5.27 6,855.03
5/19/08 2,900 5.28 15,303.01
5/20/08 2,900 5.23 15,177.73
5/21/08 1,700 5.16 8,769.62
1/27/09 1,900 3.66 6,957.99
1/29/09 100 3.69 369.00
Total 74,700 724,169.45
FIRST BIOMED, L.P.
Date Shares Cost/Unit Total Cost
- ---- ------ --------- ----------
6/15/07 103,200 15.56 1,606,111.92
6/18/07 107,900 15.46 1,667,954.80
6/19/07 52,600 15.48 814,437.36
4/11/08 12,100 5.67 68,632.41
4/14/08 27,100 5.64 152,846.71
4/15/08 9,700 5.54 53,692.41
4/16/08 11,800 5.54 65,413.30
4/17/08 43,400 6.39 277,404.12
4/30/08 4,700 6.62 31,136.09
5/01/08 5,200 6.63 34,479.12
5/02/08 11,700 6.63 77,594.40
5/05/08 8,300 6.36 52,779.70
5/06/08 5,700 6.48 36,912.63
5/07/08 7,300 6.37 46,534.58
5/08/08 5,200 6.17 32,066.32
5/09/08 7,800 6.00 46,762.56
5/12/08 15,600 5.72 89,191.44
5/13/08 12,000 5.87 70,468.80
5/14/08 7,800 5.70 44,442.06
5/15/08 7,300 5.56 40,587.27
5/16/08 13,000 5.27 68,550.30
5/19/08 28,600 5.28 150,919.34
5/20/08 28,600 5.23 149,683.82
5/21/08 16,200 5.16 83,569.32
5/30/08 30,800 5.34 164,481.24
6/02/08 19,600 5.34 104,603.24
6/03/08 41,900 5.46 228,949.98
6/04/08 36,000 5.70 205,160.40
9/08/08 182,264 4.81 876,689.84
Total 863,364 7,342,055.48
FIRST BIOMED PORTFOLIO, L.P.
Date Shares Cost/Unit Total Cost
- ---- ------ --------- ----------
6/15/07 136,800 15.56 2,129,032.08
6/18/07 56,100 15.46 867,161.70
6/19/07 27,400 15.48 424,250.64
10/30/07 2,100 13.76 28,896.21
2/07/08 8,600 12.26 105,453.20
5/30/08 16,200 5.34 86,512.86
6/02/08 10,400 5.34 55,503.76
6/03/08 22,100 5.46 120,758.82
6/04/08 19,000 5.70 108,279.10
6/10/08 13,400 5.75 77,088.86
6/11/08 2,800 5.81 16,280.04
6/13/08 11,000 5.85 64,322.50
7/10/08 51,900 5.27 273,544.52
7/11/08 20,000 5.30 105,912.00
7/14/08 6,800 5.42 36,868.92
7/15/08 22,000 5.19 114,208.60
7/16/08 600 5.34 3,205.02
7/22/08 100 5.72 572.00
9/08/08 32,915 4.81 158,321.15
9/08/08 27,600 4.81 132,756.00
Total 487,815 4,908,937.98
FIRST HEALTH, L.P.
Date Shares Cost/Unit Total Cost
- ---- ------ --------- ----------
6/20/07 64,300 15.48 995,646.92
6/21/07 64,300 15.25 980,735.75
6/25/07 8,000 14.96 119,644.80
6/26/07 12,800 14.95 191,407.36
6/27/07 12,900 14.88 191,921.04
6/29/07 19,300 15.04 290,233.40
7/02/07 7,241 15.16 109,804.70
7/05/07 10,600 15.17 160,835.92
7/06/07 800 15.36 12,289.60
7/10/07 16,000 15.27 244,324.80
7/11/07 16,100 15.19 244,518.75
7/17/07 10,300 15.18 156,387.99
7/18/07 3,500 15.05 52,667.65
4/11/08 20,300 5.67 115,143.63
4/14/08 45,450 5.64 256,342.55
4/15/08 16,200 5.54 89,671.86
4/16/08 19,700 5.54 109,206.95
4/17/08 72,400 6.39 462,766.32
4/30/08 7,800 6.62 51,672.66
5/01/08 4,300 6.63 28,511.58
5/02/08 9,600 6.63 63,667.20
5/05/08 6,800 6.36 43,241.20
5/06/08 4,700 6.48 30,436.73
5/07/08 5,900 6.37 37,610.14
5/08/08 4,300 6.17 26,516.38
5/09/08 6,400 6.00 38,369.28
5/12/08 12,800 5.72 73,182.72
5/13/08 9,800 5.87 57,549.52
5/14/08 6,400 5.70 36,465.28
5/15/08 6,000 5.56 33,359.40
5/16/08 10,700 5.27 56,422.17
5/19/08 23,500 5.28 124,007.15
5/20/08 23,500 5.23 122,991.95
5/21/08 13,300 5.16 68,609.38
1/27/09 2,800 3.66 10,253.88
1/29/09 1,400 3.69 5,166.00
Total 580,191 5,691,582.61
FIRST HEALTH LIMITED
Date Shares Cost/Unit Total Cost
- ---- ------ --------- ----------
6/20/07 27,600 15.48 427,369.44
6/21/07 27,600 15.25 420,969.00
6/25/07 3,500 14.96 52,344.60
6/26/07 5,500 14.95 82,245.35
6/27/07 5,500 14.88 81,826.80
6/29/07 8,300 15.04 124,815.40
7/02/07 3,100 15.16 47,009.33
7/05/07 4,500 15.17 68,279.40
7/06/07 300 15.36 4,608.60
7/10/07 7,000 15.27 106,892.10
7/11/07 6,800 15.19 103,275.00
7/17/07 4,400 15.18 66,806.52
7/18/07 1,500 15.05 22,571.85
1/23/08 6,900 12.43 85,779.42
1/24/08 8,300 12.69 105,332.81
1/25/08 6,900 12.36 85,258.47
1/28/08 14,900 12.25 182,569.70
1/29/08 9,700 12.48 121,052.12
1/30/08 3,400 12.61 42,872.30
2/01/08 2,700 12.65 34,141.50
2/04/08 300 12.66 3,798.00
2/05/08 6,900 12.42 85,698.69
8/07/08 189,900 5.44 1,033,056.00
Total 355,500 3,388,572.40