UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 8)*
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GULL LABORATORIES, INC.
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(Name of Issuer)
COMMON STOCK, $.001 PAR VALUE
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(Title of Class of Securities)
402901 20 1
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(CUSIP Number)
Ulrich Wagner, Esq.
O'Melveny & Myers LLP
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)
September 15, 1998
(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).
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CUSIP NO. 402901 20 1
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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 4,930,693
BENEFICIALLY ----------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH REPORT- -0-
ING PERSON ----------------------------------
WITH 9 SOLE DISPOSITIVE POWER
4,930,693
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,930,693
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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)
61.5%
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14 TYPE OF REPORTING PERSON
CO
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This Schedule 13D/A (Amendment No. 8) 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, by Schedule 13D/A
(Amendment No. 2) dated August 15, 1994, by Schedule 13D/A (Amendment No. 3)
dated December 23, 1996, by Schedule 13D/A (Amendment No. 4) dated April 21,
1997, by Schedule 13D/A (Amendment No. 5) dated August 14, 1997, by Schedule
13D/A (Amendment No. 6) dated November 3, 1997, and by Schedule 13D/A (Amendment
No. 7) dated July 14, 1998 (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 4. PURPOSE OF TRANSACTION.
Item 4 of the Statement is hereby amended by adding the following:
On September 15, 1998, Fresenius AG, Gull, Meridian Diagnostics, Inc.,
an Ohio corporation ("Meridian") and Meridian Acquisition Co., a Utah
corporation and a wholly-owned subsidiary of Meridian ("Merger Sub") entered
into a Merger Agreement (the "Merger Agreement") which provides for the merger
(the "Merger") of Merger Sub with and into Gull, with Gull as the surviving
corporation. In the Merger each outstanding share of Common Stock of Gull (other
than shares with respect to which shareholders have exercised their appraisal
rights under the Utah Business Corporation Act), will cease to be outstanding
and will be converted into the right to receive $2.25 in cash (the "Merger
Consideration"), and each outstanding share of common stock of Merger Sub will
be converted into one share of Common Stock of Gull. Upon consummation of the
Merger, Gull will become a wholly-owned subsidiary of Meridian.
The Merger Agreement contains representations, warranties, covenants,
conditions and indemnities of the type customarily included in agreements for
transactions such as the Merger. In addition, in order to facilitate the Merger,
Fresenius AG has undertaken certain obligations in the Merger Agreement which
are in addition to those provisions applicable to holders of Gull Common Stock
generally. These provisions include the following: (i) Fresenius AG has
warranted to Meridian that the value of certain assets of Gull will be not less
than the minimum amounts specified for such assets in the Merger Agreement; (ii)
Fresenius AG has agreed that Gull's outstanding indebtedness to Fresenius AG at
the closing date of the Merger will be reduced by the amount of any decrease in
Gull's shareholders' equity between December 31, 1997 and the closing date of
the Merger; and (iii) Fresenius AG has agreed to indemnify Meridian against
certain expenses and losses incurred by Meridian arising out of shareholder
actions relating to the Merger, material misrepresentations in or omissions from
the representations and warranties made by Gull or Fresenius AG in
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the Merger Agreement, and certain specified contingencies disclosed by Gull to
Meridian, subject to a maximum indemnity obligation of $3,000,000, except in the
case of any knowing misrepresentations or omissions and certain contingencies.
In addition to the foregoing obligations undertaken by Fresenius AG
pursuant to the Merger Agreement, in connection with the commencement of the
negotiations that led to the execution of the Merger Agreement, Gull's board of
directors established a committee of directors unaffiliated with Fresenius AG
(the "Independent Committee") to represent the interests of the holders of Gull
Common Stock other than Fresenius AG. Fresenius AG has agreed to indemnify the
members of the Independent Committee against liabilities which they may occur by
reason of their service as members of the Independent Committee, including
liabilities arising under federal securities laws.
Consummation of the Merger is subject to certain conditions specified
in the Merger Agreement, including approval by the Supervisory Board of
Fresenius AG, expiration of the waiting period under the Hard-Scott-Rodino
Anti-Trust Improvements Act of 1976, as amended, approval of the Merger by
Gull's shareholders at a special meeting to be called for such purpose, the
absence of certain governmental actions or legal proceedings that would prohibit
or prevent consummation of the Merger or have a material adverse effect on Gull,
receipt of certain contractual consents, and delivery of certain closing
certificates and opinions by Gull and Meridian. Consummation of the Merger is
also subject to the receipt from Houlihan Valuations, Inc. ("Houlihan
Valuations") of a letter dated the closing date confirming that their opinion
dated September 15, 1998 issued in connection with the execution of the Merger
Agreement, to the effect that, subject to the assumptions, limitations and
qualifications set forth therein, the Merger is fair, from a financial point of
view, to the shareholders of Gull (other than Fresenius AG), remains in effect.
Fresenius AG has agreed in the Merger Agreement to vote its shares of Common
Stock to approve the Merger provided that (i) the opinion of Houlihan Valuations
is not withdrawn on or prior to the date of the Gull shareholders meeting and
(ii) the board of directors of Gull has recommended approval of the Merger
Agreement to Gull's shareholders and has not withdrawn such recommendation.
Assuming that Fresenius AG votes its shares of Common Stock to approve the
Merger Agreement, the Merger will be approved by the requisite vote of Gull's
shareholders.
The Merger Agreement was entered into as a result of the determination
by Fresenius AG, originally announced in October 1997, to investigate the
strategic alternatives available to Fresenius AG with reference to its interest
in Gull. The investigation was undertaken by Fresenius AG based upon a
determination by Fresenius AG to concentrate its intensive care business
activities in the field of extracorporeal blood treatment, as a result of which
Fresenius AG has determined that Gull's diagnostics business is no longer an
element of Fresenius AG's strategic business plans.
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Except for the transactions described in this Item 4, and in Item 4 of
Fresenius AG's Schedule 13D/A (Amendment No. 6) and Fresenius AG's Schedule
13D/A (Amendment No. 7), 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 beneficial owner of a total of
4,930,693 shares of Gull Common Stock. Based on 8,016,012 shares of Common Stock
outstanding on August 1, 1998 (as set forth in Gull's Form 10-Q Report for the
six months ended June 30, 1998), Fresenius AG is the beneficial owner of 61.5%
of the Gull Common Stock, as determined in accordance with Rule 13d- 3 of the
Securities and Exchange Commission. If the Merger is consummated, Fresenius AG
will cease to be the beneficial owner of any Common 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 Merger Agreement see Item 4 above. The
description of the Merger Agreement set forth in Item 4 is qualified in its
entirety by the provisions of such agreement. A copy of the Merger Agreement is
Exhibit 1 to this Schedule 13D/A (Amendment No. 8).
Item 7. MATERIALS TO BE FILED IN EXHIBITS.
EXHIBIT EXHIBIT NO.
Merger Agreement among Gull Laboratories, Inc.,
Meridian Diagnostics, Inc., Fresenius AG and
Meridian Acquisition Co., dated as of September 15, 1998 1
(Incorporated by reference to Exhibit 10.16 to
the Form 8-K of Meridian Diagnostics, Inc. filed
September 17, 1998.)
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SIGNATURES
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: September 18, 1998 FRESENIUS AKTIENGESELLSCHAFT
By: /s/ MATTHIAS SCHMIDT
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Name: Matthias Schmidt
Title: Member of the Managing
Board
By: /s/ RAINER BAULE
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Name: Rainer Baule
Title: Member of the Managing
Board
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