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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)*
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Gull Laboratories, Inc.
(Name of Issuer)
Common Stock, $.001 par value
(Title of Class of Securities)
402901 20 1
(CUSIP Number)
Ulrich Wagner, Esq.
O'Melveny & Myers
The Citicorp Center
153 East 53rd Street, 54th Floor
New York, New York 10022-4611
(212) 326-2000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 13, 1996
(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
[ ].
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
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* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("ACT") or otherwise subject to the liabilities
of that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
Page 1 of 13 Pages
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CUSIP NO. 358031 10 2
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FRESENIUS AKTIENGESELLSCHAFT
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
GERMANY
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NUMBER OF 7 SOLE VOTING POWER
SHARES 3,610,693
BENEFICIALLY ----------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORT- -0-
ING PERSON ----------------------------------
WITH 9 SOLE DISPOSITIVE POWER
3,610,693
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,610,693
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55%
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14 TYPE OF REPORTING PERSON
CO
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2
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This Schedule 13D/A (Amendment No. 3) amends and supplements
the Statement on Schedule 13D dated May 4, 1994, as amended and supplemented by
Schedule 13D/A (Amendment No. 1) dated June 28, 1994 and by Schedule 13D/A
(Amendment No. 2) dated August 15, 1994 (as so amended, the "Statement"), filed
by Fresenius Aktiengesellschaft ("Fresenius AG"), with respect to the common
stock, $0.001 par value ("Common Stock") of Gull Laboratories, Inc. ("Gull").
Capitalized terms used herein without definition have the meanings ascribed to
them in the Statement.
Item 2. IDENTITY AND BACKGROUND.
Item 2 of the Statement is hereby amended by adding the
following:
Mr. Gerhard Krammer has resigned from the Management Board of
Fresenius AG, effective December 31, 1996. Current information with respect to
the members of the Supervisory Board and the Members of the Managing Board of
Fresenius AG is set forth in Schedule A to this Amendment No. 3.
During the past five years, none of Fresenius AG, the members
of Fresenius AG's Managing Board or, to Fresenius AG's best knowledge and
belief, the members of Fresenius AG's Supervisory Board, have been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) nor
was any of them a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation of such laws.
Item 4. PURPOSE OF TRANSACTION.
Item 4 of the Statement is hereby amended by adding the
following:
On December 13, 1996 Fresenius AG and Gull executed a Letter
of Intent (the "Letter of Intent"), setting forth their agreement in principle
for the purchase by Gull of the diagnostics business (the "Diagnostic
Business") of the Intensive Care and Diagnostics Division of Fresenius AG.
Under the Letter of Intent, the purchase price for the business will be
determined by negotiation but is to be within the range of $9,000,000 to
$11,000,000. The purchase price will be payable in Gull Common Stock, with the
number of shares to be issued to be determined as described in Item 5 below.
Consummation of the transactions contemplated by the Letter of Intent will be
subject, among other things, to (i) the execution of a mutually satisfactory
acquisition agreement ("Acquisition Agreement"), (ii) receipt of any necessary
third party consents and governmental approvals, (iii) completion of an
evaluation of the Diagnostic Business and receipt of an opinion of an
independent investment banking firm,
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engaged by Gull, to the effect that a purchase price within the foregoing range
of values is fair, from a financial point of view, to the shareholders of Gull
(other than Fresenius AG), (iv) completion of due diligence to the satisfaction
of Gull, (v) Gull Board of Directors and stockholder approval, and (vi)
Fresenius AG Management Board and Supervisory Board approval. If the fairness
opinion received by Gull indicates a fair value for the Diagnostic Business of
less than $9,000,000 or more than $11,000,000, either party may terminate the
Letter of Intent within one month of receipt of the fairness opinion.There can
be no assurance that acquisition of the Diagnostic Business by Gull will be
consummated.
Fresenius AG continues to regard its investment in Gull as an
attractive business opportunity, both for Fresenius AG and Gull, and believes
that the sale of the Diagnostic Business to Gull and the combination of the
Diagnostic Business with Gull's existing worldwide diagnostics business could
result in increased efficiencies and enhanced performance by Gull. Accordingly,
Fresenius AG believes that the acquisition would be in the best interests of
Fresenius AG, Gull and Gull's stockholders.
The Letter of Intent also provides that Fresenius AG may
provide bridge financing, in the form of short-term debt, for the operations of
the combined businesses, the terms and conditions of which would be set forth in
a separate financing agreement to be negotiated.
Other than the shares it would receive upon consummation of
the transactions contemplated by the Letter of Intent, Fresenius AG does not
presently intend to acquire additional shares of Gull Common Stock, but reserves
the right to do so in open market transactions or in privately negotiated
transactions with Gull or stockholders of Gull. Whether Fresenius AG acquires
any such additional shares of Gull Common Stock will depend on Fresenius AG's
continuing evaluation of Gull, the market price for Gull Common Stock,
alternative investment opportunities which may be available, and all other
factors deemed relevant.
Except for the transactions described in this Item 4,
Fresenius AG does not have any present intention to effect or cause Gull to
effect any of the transactions described in paragraphs (a) through (j) of Item 4
of Schedule 13D.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 of the Statement is hereby amended by adding the
following:
Fresenius AG is presently the record and benefical owner of
3,610,693 shares of Gull Common Stock. As described in Item 4 above, the Letter
of Intent provides that the purchase price for the Diagnostic Business will be
within the range of $9,000,000 to $11,000,000. The purchase price will be
payable in shares of Gull Common Stock with a value per share equal to the
average of the closing prices of Gull Common Stock for the 90-day period
preceding execution of The Letter of Intent. The average of the closing prices
of Gull Common Stock on the American Stock Exchange during such 90-day period
was $6.2994. Accordingly, the number of shares of Gull Common Stock issuable as
the consideration for the Diagnostic
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Business will be between approximately 1,428,707 shares and approximately
1,746,198 shares.
In the absence of a definitive Acquisition Agreement,
Fresenius AG disclaims beneficial ownership of any additional shares of Gull
Common Stock that Fresenius AG might acquire upon completion of the Acquisition.
Except as previously reported, Fresenius AG has no binding rights to any
additional shares of Gull Common Stock, and has entered into no binding
agreements to acquire shares of such stock.
Except as stated in this Item 5, Fresenius AG (and to the best
of its knowledge, the members of the Supervisory Board and the Managing Board of
Fresenius AG) does not own or have any right to acquire, directly or indirectly,
any shares of Gull Common Stock and, except as herein described, none of such
persons has effected any transaction in Gull Common Stock in the last sixty
days.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
For a description of the Letter of Intent, see Item 4 above.
The description of the Letter of Intent set forth in Item 4 is qualified in its
entirety by the provisions of such Letter of Intent, a copy of which is filed as
Exhibit 1 to this Schedule 13D/A (Amendment No. 3).
Item 7. MATERIALS TO BE FILED IN EXHIBITS.
EXHIBIT EXHIBIT NO.
Letter of Intent between Fresenius AG and Gull 1
dated December 13, 1996
5
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SIGNATURE
After reasonable 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: December 23, 1996 FRESENIUS AKTIENGESELLSCHAFT
By: /s/ MATTHIAS SCHMIDT
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Name: Matthias Schmidt
Title: Member of the Managing Board
By: /s/ UDO WERLE
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Name: Udo Werle
Title: Member of the Managing Board
S-1
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SCHEDULE A
The members of Fresenius AG's Supervisory Board and Managing
Board, their present principal occupations or employment (including the name,
principal business and address of any such employer), their citizenship and
their business and/or residence addresses are set forth below. All members of
the Supervisory Board and Managing Board listed on Schedule A are German
citizens.
MEMBERS OF SUPERVISORY BOARD
Dr. Alfred Stiefenhofer
Chairman of Supervisory Board
Attorney, Norr, Stiefenhofer & Lutz (law firm)
Brienner Strasse 28, 80333
Munchen, Germany
Dr. Gabriele Kroner
Doctor of Medicine
Department of Cardiac, Thoracic and Vascular Surgery
University Clinic - Hamburg Eppendorf UKE
Maritinistrasse 52, 20246 Hamburg-eppendorf, Germany
Wolfgang Rietzschel
Member of Works Council
Herzbergstrasse 33, 61350 Bad Homburg v.d.H., Germany
Christel Neumann
Deputy Member of Works Council
Muhlweg 20, 97525 Schwebheim, Germany
Vera Kluge
Labor Union Representative
c/o IG Chemie-Papier-Keramik Bereich Hessen
Wilh.-Leuschner Strasse 69-77, 60329 Frankfurt/Main, Germany
Arnold Danneck
Member of Works Council
In Matzenecken 6, 66636 Tholey, Germany
Dr. Oswald Jacobi
Doctor of Medicine
Sandmuhle 75, 55262 Heidesheim, Germany
Ulrich Mattik
Labor Union Representative
In der Steinriede 4, 30161 Hannover, Germany
Friedrich Meyer
Sales Manager
Usinger Strasse 16, 61273 Wehrheim, Germany
Hans-Peter Sattele
Member of the Managing Board
of Westdeutsche Landesbank Girozentrale
Westdeutsche Landesbank Girozentrale
Herzogstrasse 15, 40217 Dusseldorf, Germany
Sch. A-1
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Dr. Manfred Schaudwet
Executive Manager of Dresdner Bank AG
Dresdner Bank AG
Jurgen-Ponto-Platz 1, 60329 Frankfurt/Main, Germany
Dr. Karl Schneider
Retired Chairman of the Executive Board
Suedzucker AG
Maximilianstrasse 10, 68045 Mannheim, Germany
MEMBERS OF THE MANAGING BOARD
Dr. Gerd Krick
Chairman of the Managing Board
Fresenius AG
Borkenberg 14, 61440 Oberursel, Germany
and
Chairman of the Managing Board
Fresenius Medical Care AG
Borkenberg 14, 61440 Oberursel, Germany
Mathias R. Klingler
Member of the Managing Board and
Head of Medical Systems Division
Fresenius AG
Borkenberg 14, 61440 Oberursel, Germany
and
Member of the Managing Board and
Chief Executive Officer
for Europe, Asia, Africa and Latin America
Fresenius Medical Care AG
Borkenberg 14, 61440 Oberursel, Germany
Dr. Matthias Schmidt
Member of the Managing Board and
Head of Pharmaceutical Division and
Critical Care and Diagnostics Division
Fresenius AG
Borkenberg 14, 61440 Oberursel, Germany
Udo Werle
Member of the Managing Board and
Head of Finance, Administration and Personnel Matters
Fresenius AG
Borkenberg 14, 61440 Oberursel, Germany
and
Member of the Managing Board and
Head of Finance, Administration and Personnel Matters
Fresenius Medical Care AG
Borkenberg 14, 61440 Oberursel, Germany
Sch. A-2
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EXHIBIT 1
Exh. 1-1
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December 12, 1996
Dr. Matthias Schmidt, Member of
the Managing Board
Fresenius AG
Verwaltung, Postfach 1809
Borkenberg 14, D-5370 Oberursel/TS.1
FEDERAL REP OF GERMANY
Dear Dr. Schmidt:
This letter sets forth the intentions of the undersigned
concerning the proposed acquisition by Gull Laboratories, Inc., or one of its
affiliated companies, ("Gull") of all of the diagnostic business of the
Intensive Care and Diagnostic Division (the "Diagnostic Business") of Fresenius
AG ("Fresenius") as reflected in its business unit (Geschaeftsbereich)
Diagnostics. Subject to the negotiation and execution of a definitive
acquisition agreement containing covenants, representations and warranties
customary for a transaction of this type, a fairness opinion from an investment
banker engaged by Gull, approval by the Fresenius Management Board (Vorstand),
the Fresenius Supervisory Board, the Gull Board of Directors and legal and
financial advisors and the shareholders of Gull, we intend to complete a
transaction based upon the following principal points:
1. Gull will acquire all of the Diagnostic Business of
Fresenius, including but not limited to current tender contracts, customer
lists, distribution agreements, formulas, inventions, product names, licenses,
permits, certain individuals in the assembled work force and the exclusive right
to sell diagnostic products currently manufactured and distributed by Fresenius.
2. The purchase price to be paid for the Diagnostic Business
shall be determined by mutual negotiations after due diligence and will range
from Nine Million U.S. Dollars ($9,000,000) to Eleven Million U.S. Dollars
($11,000,000) subject to successful completion of due diligence and obtaining a
fairness opinion within that range. The method of payment for the purchase price
is intended to be in the form of previously authorized but unissued common stock
of Gull valued at the average closing price of Gull common stock during the
ninety (90) days preceding the date of this Letter of Intent. Additionally,
Fresenius may provide bridge financing, in the form of short-term debt, to
initially finance the operations of the combined entities with terms and
conditions to be negotiated under a separate financing agreement.
This letter of intent can be immediately terminated by either
party within one month after the date a fairness opinion is
Exh.1-2
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received from an independent investment banker engaged by Gull, if
the fairness opinion indicates a fair value less than Nine Million
U.S. Dollars ($9,000,000) or more than Eleven Million U.S. Dollars
($11,000,000).
3. Promptly following acceptance of this letter, Gull shall
commence its due diligence and Fresenius will commence drafting a definitive
purchase agreement for submission to Gull's counsel for review. The parties will
use their best efforts to execute the definitive purchase agreement prior to
January 31, 1997 and to close the contemplated transaction by April 15, 1997.
4. It is intended that the definitive purchase agreement will
address issues pertinent to current Fresenius employees in Germany such as:
A. maintaining a compassion and benefit package
comparable to that offered by Fresenius
immediately prior to the date of closing;
B. transferring the terms of current employment
agreements (Betriebsvereinbarung) of
affected employees to the acquiring entity
at closing;
C. using the current Fresenius representative
to the workers council to represent
employees affected by the acquisition until
their terms expire in 1998;
D. maintaining participation in the "outline
collective agreement" (Manteltarifvertrag)
of the chemical industry.
5. Fresenius will maintain operating authority and
responsibility for the Diagnostic Business until closing. From January 1, 1997
until the transaction is closed, Fresenius shall continue to conduct the
operations of the Diagnostic Business in the ordinary course and in the manner
in which it has heretofore been conducted and will use its best efforts to
preserve intact the present business organization of the Diagnostic Business, to
keep available the services of its significant key employees, to preserve its
present relationships with persons having significant business relations with
it, to maintain all of its business and properties consistent with current
practice. Matters relating to employment issues, capital asset acquisitions and
operating strategies will be decided by a steering committee consisting of Dr.
Silke Humberg from Fresenius and John Turner from Gull.
6. Fresenius will permit Gull and its representatives and
advisors to have access to the books, records and other information of the
Diagnostic Business necessary to complete the evaluation of the Diagnostic
Business in connection with the proposed transactions. All information which
Gull obtains in the course of the performance of its due diligence inspection
that is not otherwise public information shall be treated as confidential.
Exh. 1-3
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7. Pending execution of a definitive purchase agreement and in
any event until January 31, 1997, neither Fresenius nor any of its directors,
officers, employees, representatives or agents will, directly or indirectly,
solicit or initiate any discussions or negotiations with, participate in any
discussions or negotiations with, provide any information to or otherwise
cooperate in any way with, or facilitate or encourage any effort or attempt by
any person or entity (other than Gull and its representatives and agents)
concerning any sale of any substantial portion of the Diagnostic Business assets
or any similar transaction.
This letter shall, when signed by Fresenius, constitute an
agreement in principle. The other terms and conditions of this agreement in
principle are as follows:
A. The consummation of the proposed transaction shall be
subject to the negotiation, execution and delivery of a definitive purchase
agreement acceptable to both parties.
B. Each party will bear its own expenses in connection with
the implementation of this agreement in principle regardless of whether or not
the parties enter into a definitive purchase agreement.
C. Subject to applicable securities law disclosure
obligations, neither of us will disclose the terms of this Letter of Intent in
principle or the definitive purchase agreement without the prior written consent
of the other, which consent will not be unreasonably withheld. However, both
Gull and Fresenius may inform their employees regarding the existence of this
Letter of Intent. Prior to release, the timing and content of press releases
required by applicable securities laws will be coordinated by both parties.
D. Each party will pay its own brokerage, finder's or similar
fees or expenses in connection with the proposed transaction.
E. This agreement in principle constitutes only a statement of
our mutual intentions with respect to the proposed transaction, does not contain
all matters upon which agreement must be reached in order for the proposed
transaction to be consummated and, therefore, except for the provisions of
paragraphs 6 and 7 above, which shall be binding in any event, does not
constitute a binding commitment with respect to the proposed transaction itself,
which will result only from the execution of a definitive purchase agreement.
This letter of intent shall terminate if we have not entered into a definitive
purchase agreement on or before April 30, 1997 or if this Agreement is earlier
terminated as outlined in paragraph 2.
Exh. 1-4
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If the foregoing accurately summarizes your understanding,
please evidence your approval by signing below, and return a copy of this letter
to me.
GULL LABORATORIES, INC.
/s/ George R. Evanega
---------------------------------
By Dr. George R. Evanega
Chief Executive Officer/President
Approved this 13th day of December, 1996:
FRESENIUS AG
/s/ Matthias Schmidt
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By Dr. Matthias Schmidt
Member of Managing Board
Exh. 1-5
