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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 3
to
SCHEDULE 14D-1/A
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
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CN Biosciences, Inc.
(Name of Subject Company)
EM Acquisition Corp.
EM Industries, Incorporated
Merck KGaA, Darmstadt, Germany
(Bidders)
Common Stock, par value $.01 per share
(Title of Class of Securities)
125946 10 3
(CUSIP Number of Class of Securities)
Stephen J. Kunst, Esq.
Group Vice President and General Counsel
EM Industries, Incorporated
7 Skyline Drive
Hawthorne, NY 10532
Telephone: (914) 592-4660
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidders)
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Copy to:
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036
(212) 626-4400
Attention: Thomas J. Drago, Esq.
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December 9, 1998
(Date of Event Which Requires Filing Statement on Schedule 13D)
Page 1 of 4 pages
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This Amendment No. 3 (this "Amendment") amends and supplements the
combined Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") and
Statement on Schedule 13D (the "Schedule 13D"), which was originally filed with
the Securities and Exchange Commission (the "Commission") on November 25, 1998,
by Merck KGaA, Darmstadt, Germany, a corporation organized under the laws of
Germany ("Merck KGaA"), EM Industries, Incorporated, a New York corporation and
an indirect subsidiary of Merck KGaA ("Parent"), and EM Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent ("Purchaser"), as
amended and supplemented by Amendment No. 1 thereto which was filed with the
Commission on December 2, 1998 and Amendment No. 2 thereto which was filed with
the Commission on December 7, 1998, relating to Purchaser's tender offer for all
outstanding shares of Common Stock, par value $.01 per share, of CN Biosciences,
Inc., a Delaware corporation, at $25.00 per Share, net to the seller in cash
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase dated November 25, 1998, a copy of which has been filed
as Exhibit (a)(1) to the Schedule 14D-1, and in the related Letter of
Transmittal, a copy of which has been filed as Exhibit (a)(2) to the Schedule
14D-1.
All capitalized terms used in this Amendment shall have the meanings
attributed to them in the Schedule 14D-1. The item numbers and responses thereto
are in accordance with the requirements of Schedule 14D-1.
Item 9. Financial Statements of Certain Bidders.
Item 9 is hereby amended and supplemented by amending Section 8
("Certain Information Concerning Purchaser, Parent, Merck KGaA and Certain
Related Parties") of the Offer to Purchase by adding the following information
immediately after the table entitled "Merck KGaA, Darmstadt, Germany Selected
Consolidated Financial Data":
"As noted above, the Merck KGaA Selected Consolidated
Financial Data set forth above was prepared in accordance with IAS.
Merck KGaA does not, nor is it otherwise required to, audit and prepare
its financial statements in accordance with US GAAP. The Merck KGaA
Selected Consolidated Financial Data includes, among others, 152 fully
consolidated subsidiaries operating in 46 different countries and
involves the translation of approximately 42 different currencies into
DM. In addition, certain subsidiaries operating in hyper- inflationary
and other special economies utilize inflation adjusted and other
accounting methods consistent with uniform accounting standards
employed in such economies. As a result, financial statements for Merck
KGaA audited and prepared in accordance with US GAAP are neither
currently available nor, in the judgment of management of Merck KGaA,
obtainable without unreasonable cost or expense.
"The following represents, in the opinion of management of
Merck KGaA, the significant differences between US GAAP and IAS that
could affect the Selected Consolidated Financial Data of Merck KGaA set
forth above. For the reasons set forth above, it is not, in the opinion
of management of Merck KGaA, practicable to quantify the impact on such
Selected Consolidated Financial Data had the financial statements from
which such Selected Consolidated Financial Data was obtained been
audited and prepared in accordance with US GAAP.
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However, in the opinion of management of Merck KGaA, the application of
US GAAP to such financial statements would not have resulted in a
material impact on the financial condition or results of operations of
Merck KGaA as reflected in the Selected Consolidated Financial Data set
forth above for the periods indicated.
1. Dividends declared are recognized in the financial statements
at the declaration date under US GAAP while IAS recognizes
dividends proposed after the end of the accounting period but
before financial statements are issued as dividends in the
prior period.
2. US GAAP requires recognition of a deferred tax asset if it is
more likely than not that the tax benefit will be realized.
IAS permits tax asset recognition only when the benefit is
probable.
3. US GAAP addresses balance sheet and income statement
recognition of hedging activities. IAS does not have specific
requirements but allows significant discretion in accounting
for these activities.
4. US GAAP provides for purchase and pooling (uniting of
interests) methods of accounting under different circumstances
than permitted by IAS. In addition IAS has previously
permitted goodwill recognized in purchases to be "written off"
at the acquisition date while US GAAP requires amortization of
goodwill over its estimated benefit period or useful life.
5. US GAAP requires reserves to be established and used for
specific purposes and based on specific criteria. There is
more flexibility in accounting for reserves under IAS."
Item 10. Additional Items to be Furnished.
Item 10(f) is hereby amended and supplemented as follows;
(a) by revising the third sentence of the first paragraph of Section 2
("Acceptance for Payment and Payment for Shares") of the Offer to Purchase to
read in its entirety as follows:
"Any determination concerning the satisfaction of the terms
and conditions of the Offer will be within the reasonable discretion of
the Purchaser, and such determination will be final and binding on all
tendering stockholders.";
(b) by revising clause (ii) of the first paragraph of Section 14
("Certain Conditions of the Offer") of the Offer to Purchase to read in its
entirety as follows:
"(ii) if at any time after the date of the Merger Agreement and before
the Expiration Date, any of the following events shall occur and be
continuing:".
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SIGNATURES
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.
Date: December 9, 1998
EM ACQUISITION CORP.
By: /s/ Dieter Janssen
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Name: Dieter Janssen
Title: President & CEO
EM INDUSTRIES, INCORPORATED
By: /s/ Richard K. Hackett
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Name: Richard K. Hackett
Title: Vice President, Finance
MERCK KGaA, DARMSTADT, GERMANY
By: /s/ Klaus-Peter Brandis
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Name: Klaus-Peter Brandis
Title: Head of Legal Department
