SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
SCHEDULE 13D
(RULE 13D-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. )<1>
BIOSITE DIAGNOSTICS INCORPORATED
- --------------------------------------------------------------------------------
(Name of issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
----------------------------------------------------------------------
(Title of class of securities)
09094510
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(CUSIP number)
KLAUS H. JANDER, ESQ.
ROGERS & WELLS
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8001
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(Name, address and telephone number of person
authorized to receive notices and communications)
FEBRUARY 10, 1997
----------------------------------------------------------------------
(Date of event which requires filing of this statement)
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 <square>.
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.
(Continued on following pages)
(Page 1 of 7 Pages)
__________________________
<1> 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 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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SCHEDULE 13D
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Merck KGaA
(Reporting person is a foreign corporation and does not have S.S. or I.R.S. identification number)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) <square>
(B) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(C) OR 2(E) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Federal Republic of Germany
7 SOLE VOTING POWER
1,187,667
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,187,667
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON <square>
1,187,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
APPROXIMATELY 10.5%
14 TYPE OF REPORTING PERSON*
CO
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
PAGE
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ITEM 1. SECURITY AND ISSUER
-------------------
This statement relates to the common stock, par value U.S.$0.01
(the "Common Stock") of Biosite Diagnostics Incorporated, a Delaware
corporation (the "Issuer"). The address of the principal executive offices
of the Issuer is 11030 Roselle Street, San Diego, California 92121. The
Common Stock is quoted on the Nasdaq National Market under the symbol
"BSTE."
The Issuer offered up to 2,300,000 shares of Common Stock to the
public in an initial public offering (the "IPO") commencing as soon as
practicable after the Effective Date (as defined below). Prior to the IPO
and in relation thereto, the Issuer filed Form S-1 (File No. 333-17657)
with the Securities and Exchange Commission on December 11, 1996 (the
"Registration Statement"). The effective date of the Registration
Statement was February 10, 1997 (the "Effective Date"). Prior to the IPO,
there was no public market for the Common Stock.
ITEM 2. IDENTITY AND BACKGROUND
-----------------------
The reporting person that is filing this statement is Merck KGaA,
a German corporation with general partners. E. Merck, a German
partnership, holds approximately 75% of the stock of Merck KGaA, and the
remaining stock is held by public investors. E. Merck is the person
ultimately in control of Merck KGaA. The principal business purpose of
Merck KGaA is the manufacture and/or distribution of pharmaceuticals,
chemicals and laboratory products. The principal business purpose of
E. Merck is to act as a holding company, holding approximately 75% of the
stock of Merck KGaA. The address of each of Merck KGaA and E. Merck is
Frankfurter Strasse 250, D-64293 Darmstadt, Federal Republic of Germany.
The Issuer has entered into several strategic arrangements with
major pharmaceutical and diagnostic companies, including Merck KGaA. In
June 1994, the Issuer entered into two agreements with Merck KGaA, a
collaborative development agreement and a supply and distribution
agreement, in connection with the Issuer's development of
TRIAGE<reg-trade-mark> Cardiac, a product designed for the detection of
acute myocardial infarction. (Merck KGaA has informed the Issuer, however,
that Merck KGaA is considering assigning its rights concerning the
marketing of TRIAGE<reg-trade-mark> Cardiac either to a third party or back
to the Issuer.) In addition, the Issuer uses Merck KGaA as the exclusive
distributor in certain specified countries in Europe, Latin America, the
Middle East and Africa of the Issuer's TRIAGE<reg-trade-mark> Panel for
Drugs of Abuse, a small self-contained test capable of detecting a broad
spectrum of commonly overdosed prescription and illicit drugs.
The name, business address, present principal occupation or
employment and citizenship of the executive officers and directors of
Merck KGaA and E. Merck are set forth in Exhibits A and B, respectively.
During the last five years, Merck KGaA, E. Merck and each person
listed in Exhibits A and B: (i) has not been convicted in a criminal
proceeding and (ii) has not been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of
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which it 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 violations with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
-------------------------------------------------
Immediately prior to the IPO, Merck KGaA was the beneficial
owner of 1,041,667 shares of Common Stock, representing approximately 8.8%
of the then issued and outstanding shares of Common Stock. Merck KGaA
obtained these shares of Common Stock as the result of the automatic
conversion of its Series E Preferred Stock into Common Stock in the IPO,
pursuant to the Stock Purchase Agreement, dated as of November 25, 1992,
between the Issuer and Merck KGaA. Other than the conversion of its Series
E Preferred Stock into Common Stock, Merck KGaA did not pay any other
consideration to acquire such 1,041,661 shares of Common Stock.
In the course of the IPO, Merck KGaA acquired an additional
146,000 shares of Common Stock at a price of $12.00 per share directly
from the Issuer in order to maintain an approximate 10.5% ownership
position in the Issuer. The source of funds for this purpose was
internal working capital.
As of the closing of the IPO and as of the date hereof, Merck
KGaA was the beneficial owner of 1,187,667 shares of Common Stock,
representing approximately 10.5% of the issued and outstanding shares of
Common Stock.
ITEM 4. PURPOSE OF TRANSACTION
----------------------
Immediately prior to the IPO, Merck KGaA held 1,041,667 shares
of Common Stock, and in the course of the IPO, Merck KGaA acquired
an additional 146,000 shares of Common Stock, representing an aggregate of
approximately 10.5% ownership of the Common Stock. It is the present
intention of Merck KGaA to acquire additional shares of Common Stock, if
necessary, perhaps on the open market, in order to maintain an ownership
position of approximately 10.5%. There can be no assurances, however,
that Merck KGaA will acquire such additional shares of Common Stock.
Merck KGaA intends to hold such shares of Common Stock for investment and
has no plans or proposals relating to the acquisition of additional
securities of the Issuer or with respect to material changes in the
Issuer's business or corporate structure, including those matters
enumerated in paragraphs (a) through (j) of Item 4 to Schedule 13D.
ITEM 5 INTEREST IN SECURITIES OF THE ISSUER
------------------------------------
As of the date of this filing, Merck KGaA owns 1,187,667 shares
of Common Stock, representing approximately 10.5% of the total issued and
outstanding shares of Common Stock.
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Merck KGaA has the sole power to vote or direct the vote and
disposition of such Common Stock.
Other than the purchases described in Item 4 above, no
transactions in the Common Stock have been effected by Merck KGaA directly
or indirectly during the past 60 days.
No other person has the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of, the Common
Stock.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIP WITH RESPECT TO SECURITIES OF THE ISSUER
-----------------------------------------------------
After the IPO, the holders of 6,870,513 shares of Common Stock
issued upon the conversion of certain series of the Issuer's Preferred
Stock (the "Registrable Shares") or their permitted transferees are
entitled to certain rights with respect to the registration of such shares
under the Securities Act of 1933, as amended (the "Securities Act"). If
the Issuer proposes to register any of its securities under the Securities
Act, either for its own account or for the account of other security
holders, holders of such Registrable Securities are entitled to notice of
such registration and are entitled to include their Registrable Shares
therein, provided, among other conditions, that the underwriters of any
such offering have the right to limit the number of shares included in such
registration. Additionally, holders of the 1,458,334 shares of Common
Stock issued upon conversion of the Issuer's Series E Preferred Stock are
entitled to similar "piggy back" rights, on no more than two occasions,
commencing two years after the Effective Date of the Registration
Statement. In addition, commencing 180 days after the Effective Date,
holders of at least 30% of the Registrable Shares may require the Issuer to
prepare and file a registration statement under the Securities Act, at the
Issuer's expense, covering at least 30% of the shares entitled to
registration rights and with an offering price (net of underwriting
discounts and commissions) of more than $7,500,000, and the Issuer is
required to use its best efforts to effect such registration, subject to
certain conditions and limitations. The Issuer is not obligated to effect
more than two of these stockholder-initiated registrations. Further,
holders of Registrable Shares may require the Company to file additional
registration statements with the Securities and Exchange Commission on
Form S-3, subject to certain conditions and limitations.
Merck KGaA is the beneficial owner of certain such Registrable
Securities, including 1,041,667 shares of Common Stock acquired by Merck
KGaA as the result of the automatic conversion of its Series E Preferred
Stock into Common Stock in the IPO, pursuant to the Stock Purchase
Agreement, dated as of November 25, 1992, between the Issuer and Merck KGaA
concerning Series E Preferred Stock.
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ITEM 7 MATERIALS TO BE FILED AS EXHIBITS
---------------------------------
Exhibit A: Executive Officers and Directors of Merck KGaA.
Exhibit B: Executive Officers and Directors of E. Merck.
Exhibit C: Stock Purchase Agreement, dated November 25, 1992, between the
Issuer and Merck KGaA (incorporated by reference to Exhibit
10.18 to the Issuer's Registration Statement on Form S-1
(File No. 333-1757)).
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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.
Date: February 14, 1997
MERCK KGaA
By: \s\ Klaus-Peter Brandis
---------------------------
Name: Klaus-Peter Brandis
Title: Director
By: \s\ Wilfried Neumann
---------------------------
Name: Wilfried Neumann
Title: Senior Manager
PAGE
<PAGE>
EXHIBIT A
EXECUTIVE OFFICERS AND DIRECTORS OF MERCK KGAA
EXECUTIVE BOARD (GESCHAFTSLEITUNG)
- -------------------------------------
Name: Klaus Gruber
Address: Rosengartenstrasse 26
64665 Alsbach-Hahnlein
Federal Republic of Germany
Occupation: Merchant
Citizenship: Germany
Name: Wolfgang Honn
Address: Am Dahrsberg 9
64342 Seeheim-Jugenheim
Federal Republic of Germany
Occupation: Merchant
Citizenship: Germany
Name: Prof. Dr. Hans-Joachim Langmann
Address: Merckstrasse 40
64342 Seeheim-Jugenheim
Federal Republic of Germany
Occupation: Physicist
Citizenship: Germany
Name: Edward H. Roberts
Address: Margeritenstrasse 11
63322 Rodermark
Federal Republic of Germany
Occupation: Pharmacist
Citizenship: United Kingdom
Name: Dr. Michael Romer
Address: Niederwiesenring 129a
63110 Rodgau
Federal Republic of Germany
Occupation: Chemist
Citizenship: Germany
<PAGE>
Name: Dr. Thomas Schreckenbach
Address: Prinzenbergweg 1
63467 Muhltal
Federal Republic of Germany
Occupation: Chemist
Citizenship: Germany
Name: Dr. Harald J. Schroder
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Merchant
Citizenship: Germany
SUPERVISORY BOARD (AUFSICHTSRAT)
- --------------------------------
Name: Jon Baumhauer
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Psychologist
Citizenship: Germany
Name: Prof. Dr. Christoph Clemm
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Medical specialist
Citizenship: Germany
Name: Dr. Heinrich Hornef
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Retired
Citizenship: Germany
<PAGE>
Name: Dr. Arend Oetker
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Managing partner, Dr. Arend Oetker Holding GmbH & Co., Cologne
Citizenship: Germany
Name: Dr. Gerhard Ziener
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Chairman, Supervisory Board of Rohm Chemische Werke, Darmstadt
Citizenship: Germany
Name: Peter Zuhlsdorff
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Businessman, Darmstadt
Citizenship: Germany
Name: Flavio Battisti
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Chairman, works counsel of Merck KGaA
Citizenship: Germany
Name: Manfred Bendel
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Chairman, central works counsel of Merck KGaA
Citizenship: Germany
<PAGE>
Name: Klaus Brauer
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Head of education department, IG Chemie Papier Keramik
Citizenship: Germany
Name: Brigitte Niems
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Vice chairman, works counsel of Merck KGaA
Citizenship: Germany
Name: Dr. Michael Kasper
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Chairman, senior management counsel of Merck KGaA
Citizenship: Germany
Name: Hans Schonhals
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Businessman, Darmstadt
Citizenship: Germany
PAGE
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EXHIBIT B
EXECUTIVE OFFICERS AND DIRECTORS OF E. MERCK
Name: Prof. Dr. Hans-Joachim Langmann
Address: Merckstrasse 40
64342 Seeheim-Jugenheim
Federal Republic of Germany
Occupation: Physicist
Citizenship: Germany
Name: Klaus Gruber
Address: Rosengartenstrasse 26
64665 Alsbach-Hahnlein
Federal Republic of Germany
Occupation: Merchant
Citizenship: Germany
Name: Wolfgang Honn
Address: Am Dahrsberg 9
64342 Seeheim-Jugenheim
Federal Republic of Germany
Occupation: Merchant
Citizenship: Germany
Name: Edward H. Roberts
Address: Margeritenstrasse 11
63322 Rodermark
Federal Republic of Germany
Occupation: Pharmacist
Citizenship: United Kingdom
Name: Dr. Michael Romer
Address: Niederwiesenring 129a
63110 Rodgau
Federal Republic of Germany
Occupation: Chemist
Citizenship: Germany
Name: Dr. Thomas Schreckenbach
Address: Prinzenbergweg 1
63467 Muhltal
Federal Republic of Germany
Occupation: Chemist
Citizenship: Germany
PAGE
<PAGE>
Name: Dr. Harald J. Schroder
Address: E. Merck
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation Merchant
Citizenship: Germany
<PAGE>
