<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
SCHEDULE 14D-1
(AMENDMENT NO. 1)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
VWR SCIENTIFIC PRODUCTS CORPORATION
(Name of Subject Company)
EM SUBSIDIARY, INC.
EM LABORATORIES, INCORPORATED
MERCK KGAA, DARMSTADT, GERMANY
(Bidders)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)
918435108
(Cusip Number of Class of Securities)
STEPHEN J. KUNST
VICE PRESIDENT AND SECRETARY
EM SUBSIDIARY, INC.
C/O EM LABORATORIES, INCORPORATED.
7 SKYLINE DRIVE
HAWTHORNE, NEW YORK 10532
(914) 592-4660
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
COPY TO:
KLAUS H. JANDER, ESQ.
RICHARD T. MCDERMOTT, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
July 2, 1999
(Continued on following pages)
(Page 1 of 11 pages)
<PAGE> 2
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CUSIP No. 918435108 14D-1 Page 2
- ----------------------- ---------------------
===============================================================================
1. Name of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
EM SUBSIDIARY, INC.
===============================================================================
2. Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [X]
===============================================================================
3. SEC Use Only
===============================================================================
4. Sources of Funds
AF
===============================================================================
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(e) or 2(f)
[ ]
===============================================================================
6. Citizenship or Place of Organization
PENNSYLVANIA
===============================================================================
7. Aggregate Amount Beneficially Owned by Each Reporting Person
15,538,784
===============================================================================
8. Check if the Aggregate Amount in Row 7 Excludes Certain Shares
[ ]
===============================================================================
9. Percent of Class Represented by Amount in Row 7
49.9%
===============================================================================
10. Type of Reporting Person
CO
===============================================================================
<PAGE> 3
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CUSIP No. 918435108 14D-1 Page 3
- ----------------------- ---------------------
===============================================================================
1. Name of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
EM LABORATORIES, INCORPORATED
===============================================================================
2. Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [X]
===============================================================================
3. SEC Use Only
===============================================================================
4. Sources of Funds
AF
===============================================================================
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(e) or 2(f)
[ ]
===============================================================================
6. Citizenship or Place of Organization
NEW YORK
===============================================================================
7. Aggregate Amount Beneficially Owned by Each Reporting Person
15,538,784
===============================================================================
8. Check if the Aggregate Amount in Row 7 Excludes Certain Shares
[ ]
===============================================================================
9. Percent of Class Represented by Amount in Row 7
49.9%
===============================================================================
10. Type of Reporting Person
CO
===============================================================================
<PAGE> 4
- ----------------------- ---------------------
CUSIP No. 918435108 14D-1 Page 4
- ----------------------- ---------------------
===============================================================================
1. Name of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
MERCK KGaA, DARMSTADT, GERMANY
===============================================================================
2. Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [X]
===============================================================================
3. SEC Use Only
===============================================================================
4. Sources of Funds
WC
===============================================================================
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(e) or 2(f)
[ ]
===============================================================================
6. Citizenship or Place of Organization
GERMANY
===============================================================================
7. Aggregate Amount Beneficially Owned by Each Reporting Person
15,538,784
===============================================================================
8. Check if the Aggregate Amount in Row 7 Excludes Certain Shares
[ ]
===============================================================================
9. Percent of Class Represented by Amount in Row 7
49.9%
===============================================================================
Type of Reporting Person
CO
===============================================================================
<PAGE> 5
This Amendment No. 1 to the Rule 14d-1 Tender Offer Statement on Schedule
14D-1 (this "Amendment") is being filed by (i) Merck KGaA, Darmstadt, Germany, a
German company ("Merck KGaA"), (ii) EM Laboratories, Incorporated, a New York
corporation ("Parent") and an indirect subsidiary of Merck KGaA and (iii) EM
Subsidiary, Inc., a Pennsylvania corporation ("Purchaser") and a wholly-owned
subsidiary of Parent, pursuant to Section 14(d) of the Securities Exchange Act
of 1934, as amended, and Rule 14d-1 thereunder in connection with the tender
offer by Purchaser, Parent and Merck KGaA to purchase all outstanding shares of
common stock, par value $1.00 per share of VWR Scientific Products Corporation,
a Pennsylvania corporation (the "Company"), at $37.00 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 June 14, 1999, of
Purchaser, Parent and Merck KGaA (the "Offer to Purchase") and in the related
Letter of Transmittal (which, together with any supplements or amendments
thereto, collectively constitute the "Offer").
ITEM 10 ADDITIONAL INFORMATION.
(a) Item 10(f) is hereby amended by amending and restating the first four
paragraphs under "6. Fairness of the Transaction" in the Offer to Purchase as
follows:
Merck KGaA, Parent and Purchaser understand as follows concerning
the determination by the Board of the Company of the fairness of the Offer
and the Merger. The Company's Board, by unanimous vote of the Unaffiliated
Directors acting as a quorum of the full Company Board, based upon, among
other things, the unanimous recommendation and approval of the Special
Committee, has determined that the Merger Agreement and the transactions
contemplated thereby, including each of the Offer and the Merger
(collectively, the "Transactions"), are fair to, and in the best interests
of, the Company and the shareholders of the Company not affiliated with
Merck KGaA (the "Public Shareholders"), approved the Merger Agreement, the
Offer and the Merger, and resolved to recommend that shareholders accept
the Offer and tender their Shares pursuant to the Offer and subsequently
to approve the Merger Agreement, if such approval is required by law.
In making the recommendation to the Company's Board and approving
the Merger Agreement and the Transactions, the Unaffiliated Directors
considered a number of factors, including, but not limited to, the
following:
(a) the financial and other terms and conditions of the Merger
Agreement, including the proposed structure of the Offer and the Merger
involving a cash tender offer of $37.00 per Share for all outstanding
Shares, to be followed by a merger for the same consideration;
(b) various risks and uncertainties associated with any expansion of
the Company's distribution business to meet the needs of its global
customers;
(c) the historical market prices of the Shares, including the fact
that the Offer price and the Merger price of $37.00 per Share represented
premiums of approximately 29.0%, 32.1% and 32.7% over the closing prices
per Share on the NASDAQ Stock Market June 3, 4, and 7, 1999, respectively,
the last three full trading days prior to the June 8, 1999 announcement of
the Transactions, and represented a premium of approximately 40% over the
closing price for the Shares on the NASDAQ Stock Market on the date 30
days prior to the announcement of the Transactions;
(d) according to Bloomberg LP, the $37.00 per Share to be paid to
the Public Shareholders in the Offer and the Merger exceeded the highest
price at which the Shares have closed on the NASDAQ Stock Market since the
Company became a public company in 1986;
(e) neither the Offer nor the Merger is subject to any financing
condition, and that Parent has represented that it has available to it
from or through Merck KGaA or its affiliates, sufficient funds to
consummate the Offer, the Merger and the transactions contemplated
thereby;
(f) the separate opinions, each dated June 8, 1999, to the Company's
Board and Special Committee, of BT Alex. Brown Incorporated ("BT Alex.
Brown") (now merged with Deutsche Bank Securities Inc., and known as
Deutsche Banc Alex. Brown) and Warburg Dillon Read LLC ("Warburg
<PAGE> 6
Dillon Read") to the effect that, as of the date of such opinions and
based upon and subject to certain matters stated therein, the $37.00 per
Share cash consideration to be received in the Offer and the Merger by the
holders of Shares (other than Merck KGaA and its affiliates) was fair,
from a financial point of view, to such holders. The full text of the
written opinions of BT Alex. Brown and Warburg Dillon Read dated June 8,
1999, the analyses and conclusions of which were concurred with and
adopted by the Company's Board and Special Committee and set forth the
assumptions made, matters considered and limitations on and review
undertaken, are attached as Schedule II and Schedule III, respectively, to
this Offer to Purchase and are incorporated herein by reference. The
opinions of BT Alex. Brown and Warburg Dillon Read are directed to the
Company's Board and Special Committee, address only the fairness of the
$37.00 per Share cash consideration to be received in the Offer and the
Merger by the holders of Shares (other than Merck KGaA and its affiliates)
from a financial point of view, and do not constitute a recommendation to
any shareholder as to whether or not such shareholder should tender Shares
in the Offer or as to how such shareholder should vote with respect to the
proposed Merger. Holders of Shares are urged to read such opinions
carefully in their entirety;
(g) the terms of the Merger Agreement were determined through
arm's-length bargaining between the Special Committee and its legal and
financial advisors, on one hand, and representatives of Parent, on the
other, and provide for the Offer in order to allow Public Shareholders to
receive payment for their Shares; and
(h) Parent and its affiliates informed the Special Committee that
they would not be interested in a third-party sale of the Company; the
Special Committee and its financial advisors were not authorized to, and
did not, solicit third-party indications of interest for the acquisition
of the Company (which they deemed highly unlikely to receive in light to
the aggregate ownership of the Company by Merck KGaA and its affiliates
and their affirmative disinterest in a third party sale of the Company),
nor were any offers from third parties received; although the Unaffiliated
Directors recognized that this factor did not necessarily support its
determination regarding the fairness of the Transactions, the Unaffiliated
Directors concluded that this factor was substantially outweighed by the
totality of the other factors it considered in arriving at its
determination.
The Unaffiliated Directors recognized that the Merger had not been
structured to require the approval of a majority of the Shares held by the
Public Shareholders and that following successful completion of the Offer,
Merck KGaA and its affiliates would have sufficient voting power to
approve the Merger Agreement without the affirmative vote of any other
shareholder of the Company. However, the Unaffiliated Directors, including
all of the members of the Special Committee, believed that the
Transactions were procedurally fair because, among other things:
(a) the Special Committee was appointed to represent the interests
of the Public Shareholders;
(b) by reason of the Standstill Agreement, completion of the Offer
(and thus completion of the Merger) is conditioned upon its acceptance by
the holders of a majority of the Shares not owned by Parent and its
affiliates; such condition may not be waived by Purchaser without the
consent of the Company and is designed to assure that the Public
Shareholders holding a majority of the shares owned by all Public
Shareholders have determined to accept the terms of the Offer prior to any
vote on the Merger;
(c) prior to consummation of the Offer, the Company's Board of
Directors may cause the Offer to be terminated if it receives an
unsolicited proposal to be acquired by a third-party and, in the opinion
of the Company's outside legal counsel, failure to consider such a
proposal would result in a breach of the fiduciary duties of the Company's
Board of Directors under applicable law. Under such circumstances, the
Company would be required to reimburse Parent for its reasonable
documented out-of-pocket expenses in an amount up to $8 million;
<PAGE> 7
(d) the Special Committee retained BT Alex. Brown and Warburg Dillon
Read as its independent financial advisors to assist it in evaluating and
negotiating a potential transaction with the Parent and its affiliates;
(e) the Special Committee engaged in deliberations to evaluate the
Transactions and alternatives thereto;
(f) the $37.00 per Share price and the other terms and conditions of
the Transaction resulted from active arm's-length bargaining between
representatives of the Special Committee, on the one hand, and
representatives of Parent and its affiliate, on the other; and
(g) Public Shareholders may obtain "fair value" for their Shares if
they exercise and perfect their appraisal rights under the PBCL.
The approval and recommendation of the Company's Board of Directors was
based on the totality of the information considered by it. The Company's Board
of Directors did not assign relative weights to the factors considered by it or
determine that any one factor was of primary importance.
(b) Item 10(f) is hereby amended by amending and restating the paragraph under
"6. Fairness of the Transaction - Position of Merck KGaA, Parent and Purchaser
regarding Fairness of the Offer and Merger" in the Offer to Purchase as follows:
MerckKGaA, Parent and Purchaser believe that the consideration to be
received by the Public Shareholders, pursuant to the Offer and the Merger,
is fair to the Public Shareholders. Merck KGaA, Parent and Purchaser based
their belief on a number of factors, including, but not limited to:
(a) the fact that the Unaffiliated Directors and the Special
Committee unanimously concluded that the Offer and the Merger are fair to,
and in the best interests of, the Company and the Public Shareholders;
(b) the financial and other terms and conditions of the Merger
Agreement, including the proposed structure of the Offer and the Merger
involving a cash tender offer of $37.00 per Share for all outstanding
Shares, to be followed by a merger for the same consideration;
(c) various risks and uncertainties associated with any expansion of
the Company's distribution business to meet the needs of its global
customers;
(d) the historical market prices of the Shares, including the fact
that the Offer price and the Merger price of $37.00 per Share represented
premiums of approximately 29.0%, 32.1% and 32.7% over the closing prices
per Share on the NASDAQ Stock Market June 3, 4, and 7, 1999, respectively,
the last three full trading days prior to the June 8, 1999 announcement of
the Transactions, and represented a premium of approximately 40% over the
closing price for the Shares on the NASDAQ Stock Market on the date 30
days prior to the announcement of the Transactions;
(e) according to Bloomberg LP, the $37.00 per Share to be paid to
the Public Shareholders in the Offer and the Merger exceeded the highest
price at which the Shares have closed on the NASDAQ Stock Market since the
Company became a public company in 1986;
(f) neither the Offer nor the Merger is subject to any financing
condition, and that Parent has represented that it has available to it
from or through Merck KGaA or its affiliates, sufficient funds to
consummate the Offer, the Merger and the transactions contemplated
thereby;
(g) notwithstanding the fact that BT Alex. Brown's and Warburg
Dillon Read's opinions were provided solely for the information and
assistance of the Company's Board and Special Committee and that Merck
KGaA, Parent and Purchaser are not entitled to rely on such opinions, the
fact that the Company's Board and Special Committee received an opinion
from each of BT Alex. Brown and Warburg Dillon Read as to the fairness,
from a financial point of view, to the holders of Shares (other than Merck
KGaA and its affiliates) of the $37.00 per Share cash consideration to be
received by such holders in the Offer and the Merger. The full text of the
written opinions of BT Alex. Brown and
<PAGE> 8
Warburg Dillon Read dated June 8, 1999, which set forth the assumptions
made, matters considered, and limitations on the review undertaken, are
attached as Schedules II and III, respectively, to this Offer to Purchase,
and are incorporated herein by reference. The opinions of BT Alex. Brown
and Warburg Dillon Read are directed to the Company's Board and Special
Committee, address only the fairness of the $37.00 per Share cash
consideration to be received in the Offer and the Merger by the holders of
Shares (other than Merck KGaA and its affiliates) from a financial point
of view, and do not constitute a recommendation to any shareholder as to
whether or not such shareholder should tender Shares in the Offer or as to
how such shareholder should vote with respect to the proposed Merger.
Holders of Shares are urged to read such opinions carefully in their
entirety;
(h) the terms of the Merger Agreement were determined through
arm's-length bargaining between the Special Committee and its legal and
financial advisors, on one hand, and representatives of Parent, on the
other, and provide for the Offer in order to allow Public Shareholders to
receive payment for their Shares; and
(i) Parent and its affiliates informed the Special Committee that it
would not be interested in a third-party sale of the Company; the Special
Committee and its financial advisors were not authorized to, and did not,
solicit third-party indications of interest for the acquisition of the
Company (which they deemed highly unlikely to receive in light to the
aggregate ownership of the Company by the Parent and its affiliates and
their affirmative disinterest in a third party sale of the Company), nor
were any offers from third parties received; although the Unaffiliated
Directors recognized that this factor did not necessarily support its
determination regarding the fairness of the Offer and the Merger, the
Unaffiliated Directors concluded that this factor was substantially
outweighed by the totality of the other factors it considered in arriving
at its determination.
Merck KGaA, Parent and Purchaser have reviewed the factors
considered by the Unaffiliated Directors in support of their decision, as
described in the Schedule 14D-9 and above, and had no basis to question
their consideration of or reliance on those factors. In concluding that
the terms of the Offer and the Merger are fair to the Public Shareholders,
Merck KGaA, Parent and Purchaser viewed all of the factors listed above as
supporting such conclusion. Merck KGaA, Parent and Purchaser found it
impracticable to assign, and they did not assign, relative weights to the
individual factors considered in reaching their conclusion as to fairness,
but viewed the totality of the factors considered in reaching their
conclusion. Merck KGaA, Parent and Purchaser recognize that the Merger had
not been structured to require the approval of a majority of the Shares
held by the Public Shareholders and that following the successful
completion of the Offer, Parent and its affiliates would have sufficient
voting power to approve the Merger Agreement without the affirmative vote
of any other shareholders of the Company. Without assigning relative
weights to the factors considered by Unaffiliated Directors, including the
Special Committee, or determining that any one of such factors was of
primary importance, Merck KGaA, Parent and Purchaser believe that the
Offer and the Merger are procedurally fair for the reasons cited by the
Unaffiliated Directors, including the Special Committee, which factors
include, without limitation, that by reason of the Standstill Agreement,
completion of the Offer (and thus completion of the Merger) is conditioned
upon its acceptance by the holders of a majority of the Shares owned by
the Public Shareholders; such condition may not be waived by Purchaser
without the consent of the Company and is designed to assure that the
shareholders holding a majority of the Shares owned by all Public
Shareholders have determined to accept the terms of the Offer prior to any
vote on the Merger. See "6. Fairness of the Transaction."
(c) Item 10(f) is hereby amended by amending and restating the third paragraph
under "6. Fairness of the Transaction - Opinion of BT Alex. Brown Incorporated;
Other Factors" in the Offer to Purchase as follows:
The preparation of a fairness opinion is a complex analytic process
involving various determinations as to the most appropriate and relevant
methods of financial analyses and the application of those methods to the
particular circumstances and, therefore, a fairness opinion is not readily
susceptible to a summary description. BT Alex. Brown arrived at its
ultimate opinion based on the results of all of the analyses undertaken by
it and assessed as a whole. BT Alex. Brown did not draw conclusions from
or with regard to any one factor or method of analysis. Rather, BT Alex.
Brown believed that the totality of the factors considered and analyses
performed by BT Alex. Brown in
<PAGE> 9
connection with its opinion operated collectively to support its
determination as to the fairness of the per Share cash consideration to be
received in the Offer and the Merger from a financial point of view.
Accordingly, BT Alex. Brown believes that its analyses and the summary
above must be considered as a whole and that selecting portions of its
analyses and factors or focusing on information presented in tabular
format, without considering all analyses and factors or the narrative
description of the analyses, could create a misleading or incomplete view
of the process underlying BT Alex. Brown's analyses and opinion.
(d) Item 10(f) is hereby amended by amending and restating the sixth paragraph
under "6. Fairness of the Transaction - Opinion of BT Alex. Brown Incorporated;
Other Factors" in the Offer to Purchase as follows:
BT Alex. Brown is an internationally recognized investment banking
firm and, as a customary part of its investment banking business, is
engaged in the valuation and their securities in connection with mergers
and acquisitions, negotiated underwritings, private placements and
valuations for estate corporate and other purposes. The Company selected
BT Alex. Brown based on BT Alex. Brown's reputation, expertise and
familiarity with the Company. BT Alex. Brown and its affiliates have in
the past provided financial services to the Company and Merck KGaA
unrelated to the Offer and Merger, for which services BT Alex. Brown and
its affiliates have received compensation. During the past two years, BT
Alex. Brown has received aggregate compensation of approximately $451,815
for its financial services to the Company.
(e) Item 10 (f) is hereby amended by amending and restating the sixth paragraph
under "6. Fairness of the Transaction - Opinion of Warburg Dillon Read LLC" in
the Offer to Purchase as follows:
Warburg Dillon Read believes that its analyses and the summary below
must be considered as a whole and that selecting portions of its analyses
and factors or focusing on information presented in tabular format,
without considering all analyses and factors or the narrative description
of the analyses, could create a misleading or incomplete view of the
process underlying Warburg Dillon Read's analyses and opinion. None of the
analyses performed by Warburg Dillon Read was assigned a greater
significance by Warburg Dillon Read than any other. Warburg Dillon Read
arrived at its ultimate opinion based on the results of all the analyses
undertaken by it and assessed as a whole. Warburg Dillon Read did not draw
conclusions from or with regard to any one factor or method of analysis.
Rather, Warburg Dillon Read believes that the totality of the factors
considered and analyses performed by Warburg Dillon Read in connection
with its opinion operated collectively to support its determination as to
the fairness of the per Share cash consideration to be received in the
Offer and the Merger from a financial point of view.
(f) Item 10(f) is hereby amended by amending and restating the title of the
table concerning the 1999 Budget Balance Sheet of VWR Scientific Products under
"8. Certain Information Concerning the Company" in the Offer to Purchase as
follows:
VWR Scientific Products
1999 Budget Balance Sheet
(In millions)
(g) Item 10 (f) is hereby amended by amending and restating in its entirety the
last paragraph under "8. Certain Information Concerning the Company Other
Financial Information" in the Offer to Purchase as follows:
The foregoing information was prepared by the Company solely for
internal use and not for publication or with a view to complying with the
published guidelines of the Commission regarding projections or with the
guidelines established by the American Institute of Certified Public
Accountants and are included in this Offer to Purchase only because they
were furnished to Merck KGaA and Parent. The foregoing information is
"forward-looking" and inherently subject to significant uncertainties and
contingencies, many of which are beyond the control of the Company,
including industry performance, general business and economic conditions,
changing competition, adverse changes in applicable laws, regulations or
rules governing environmental, tax or accounting matters and other
matters. It is not possible to predict whether the assumptions made in
preparing the foregoing information will be accurate, and actual results
may be materially higher or lower than those described above. The Company
has advised Merck KGaA, Parent, and Purchaser that the foregoing
information was prepared based on the following assumptions: The budgeted
profit and loss data for the Company for 1999 assumes a sales growth of
11.6%, which is comprised of an 8% growth in the Company's core business,
with the remaining growth coming from a full year's effect of the
acquisitions effected by the Company during 1998 (the "1998
Acquisitions"). (See Note 2 of the Financial Statements of the Company,
annexed as Schedule V hereto, which describes the 1998 Acquisitions more
fully.) The substantial portion of the budgeted gross margin improvement
is the projected result of a full year effect of the 1998 Acquisitions in
the education market, which historically earns higher margins. In
addition, to a lesser extent, the gross margin percentage improvement is
projected from the continued focus on internal efficiency improvement in
the Company's core business. Operating expenses as a percent of sales are
projected to increase slightly over the prior year as a result of the full
year's effect of the 1998 Acquisitions.
The balance sheet assumptions are a combination of the flow through
impact of the 1999 budgeted profit and loss statement, combined with the
projected days sales outstanding and planned FIFO inventory days therein
reflected. Capital expenditures are budgeted at $16.0 Million and the
projected net change in net property during 1999 is the result of regular
depreciation charges.
The inclusion of this information should not be regarded as an
indication that Parent, Purchaser, Merck KGaA, the Company or anyone who
received this information considered it a reliable predictor or future
events, and this information should not be relied upon as such. None of
Parent, Purchaser or Merck KGaA assumes any responsibility for the
validity, reasonableness, accuracy or completeness of the projections and
the Company has made no representations to Parent, Purchaser or Merck KGaA
regarding the financial information described above. None of the Company,
Parent,
<PAGE> 10
Purchaser, Merck KGaA or any other party intends publicly to update or
otherwise publicly revise the projections even if experience or future
changes make it clear that the projections will not be realized.
(h) The first paragraph under "14. Conditions of the Offer" in the Offer to
Purchase will be amended as follows:
Purchaser will not be required to accept for payment or, subject to
any applicable rules and regulations of the Commission, including Rule
14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay
for or return tendered Shares after termination or withdrawal of the
Offer), pay for, and (subject to any such rules or regulations) may delay
the acceptance for payment of any tendered Shares and (except as provided
in the Merger Agreement) amend or terminate the Offer (whether or not any
Shares have been previously purchased or paid for pursuant to the Offer)
(A) unless on or before the Expiration Date the following conditions shall
have been satisfied: (i) there shall be validly tendered and not withdrawn
prior to the expiration of the Offer a number Shares which represents a
majority of the total number of outstanding Shares of the Company,
excluding any Shares held by Parent, Purchaser or any affiliate thereof
and (ii) any applicable waiting period under the HSR Act or any similar
applicable foreign law, including but not limited to the requirement of
the German federal antitrust supervisory authority (Bundeskartelamt),
shall have expired or been terminated prior to the expiration of the Offer
and the required approval of any governmental entity for the Merger
Agreement or the consummation of the transactions contemplated by the
Merger Agreement shall have been obtained or (B) 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:
<PAGE> 11
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: July 2, 1999
EM SUBSIDIARY, INC.
By: /s/ Dieter Janssen
------------------------------------------
Name: Dieter Janssen
Title: President
EM LABORATORIES, INCORPORATED
By: /s/ Stephen J. Kunst
------------------------------------------
Name: Stephen J. Kunst
Title: Vice-President & Secretary
MERCK KGaA, DARMSTADT, GERMANY
By: /s/ Klaus-Peter Brandis
------------------------------------------
Name: Klaus-Peter Brandis
Title: Departmental Director (Abteilungsdirektor)
