-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TqWbhqG+8TsQXqb7KULmc9cm3SgeyjuD0zmEjY/04Pwu3OD5l0X44ZnuXP8IETdz 1cjRJN6hWcaPvePMFIiuqQ== 0000950129-06-004541.txt : 20060428 0000950129-06-004541.hdr.sgml : 20060428 20060428143804 ACCESSION NUMBER: 0000950129-06-004541 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060428 DATE AS OF CHANGE: 20060428 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DIAGNOSTIC PRODUCTS CORP CENTRAL INDEX KEY: 0000702259 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 952802182 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-34645 FILM NUMBER: 06789156 BUSINESS ADDRESS: STREET 1: 5210 PACIFIC CONCOURSE DRIVE CITY: LOS ANGELES STATE: CA ZIP: 90045 BUSINESS PHONE: 3106458200 MAIL ADDRESS: STREET 1: 5210 PACIFIC CONCOURSE DRIVE CITY: LOS ANGELES STATE: CA ZIP: 90045 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ZIERING MARILYN CENTRAL INDEX KEY: 0001002106 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: BUSINESS PHONE: 2137760180 MAIL ADDRESS: STREET 1: 5700 W 96TH STREET STREET 2: C/O DIAGNOSTIC PRODUCTS CORP CITY: LOS ANGELES STATE: CA ZIP: 90045 SC 13D 1 v20015sc13d.txt MARILYN ZIERING FOR DIAGNOSTIC PRODUCTS CORPORATION SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. ___) DIAGNOSTIC PRODUCTS CORPORATION - ------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK - ------------------------------------------------------------------------------- (Title of Class of Securities) 252450-10-1 - ------------------------------------------------------------------------------- (CUSIP Number) HELEN W. MELMAN, ESQ. 815 MORAGA DRIVE LOS ANGELES, CALIFORNIA 90049 (310) 472-4191 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) APRIL 26, 2006 - ------------------------------------------------------------------------------- (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(e), 13d-1(f) or 13d-l(g), check the following box [ ]. 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. (Continued on following pages) 1 of 6 SCHEDULE 13D CUSIP NO. 252450-10-1 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MARILYN ZIERING 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP. (a) [ ] (b) [ ] 3. SEC USE ONLY 4. SOURCE OF FUNDS - N/A 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION -- U.S. NUMBER OF 7. SOLE VOTING POWER - 0 SHARES BENEFICIALLY 8. SHARED VOTING POWER - 4,764,994 OWNED BY EACH REPORTING 9. SOLE DISPOSITIVE POWER - 0 PERSON WITH 10. SHARED DISPOSITIVE POWER - 4,764,994 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,764,994 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 14. TYPE OF REPORTING PERSON - IN 2 of 6 ITEM 1. SECURITY AND ISSUER. This Statement on Schedule 13D is filed by Marilyn Ziering (the "Reporting Person") to report the execution of the Voting Agreement described in Item 4 with respect to shares of common stock of Diagnostic Products Corporation, a California corporation (the "Company"). The Company's principal business address is 5210 Pacific Concourse Drive, Los Angeles, California 90045. ITEM 2. IDENTITY AND BACKGROUND. (a) Marilyn Ziering (b) C/o Diagnostic Products Corporation 5210 Pacific Concourse Drive Los Angeles, California 90045 (c) Unemployed (d)(e) During the last five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or the finding of any violation with respect to such laws. (f) U.S. Citizen ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The Reporting Person previously reported her ownership of equity securities of the Company on Schedule 13G pursuant to Rule 13d-1(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). This Schedule 13D is filed to disclose the execution of the Voting Agreement described in Item 4, and does not relate to any purchases or acquisitions of the Company's securities. ITEM 4. PURPOSE OF TRANSACTION. In order to facilitate the consummation of the transactions contemplated by an Agreement and Plan of Merger between the Company, Siemens Medical Solutions USA, Inc. ("Siemens"), and Dresden Acquisition Corporation dated April 26, 2006 (the "Merger Agreement") and in consideration thereof, the Reporting Person entered into a Shareholder Agreement (Voting) with Siemens on April 26, 2006 (the "Voting Agreement"). Pursuant to the Voting Agreement, the Reporting Person granted Siemens an irrevocable proxy to vote all shares of the Company's common stock owned by her (1) in favor of the approval of the Merger Agreement and the merger between the Company and Dresden Acquisition Corporation contemplated thereby (the "Merger") and (2) against any Acquisition Proposal, other than the Merger. An "Acquisition Proposal" means any of the following (other than the Merger) or any offer or proposal for any of the following: (i) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, 3 of 6 dissolution or other similar transaction or series of related transactions involving the Company; (ii) any sale, lease, exchange, transfer or other disposition (including by way of merger, consolidation or exchange), in a single transaction or a series of related transactions, of the assets of the Company or its subsidiaries constituting twenty-five percent (25%) or more of the consolidated assets of the Company and its subsidiaries or accounting for twenty-five percent (25%) or more of the consolidated revenues of the Company and its subsidiaries; or (iii) any tender offer, exchange offer or other offer for, or acquisition or other similar transaction or series of related transactions by any person or group (within the meaning of Regulation 13D under the Exchange Act) that, if consummated, would result in such person or group becoming the beneficial owner of twenty-five percent (25%) or more of the outstanding Company common stock. The Reporting Person also agreed, during the term of the Voting Agreement, not to sell, transfer, pledge or dispose of any of her shares except to a member of her immediate family or to a trust for the benefit of the Reporting Person or any member of her immediate family, or upon her death. The Voting Agreement will terminate upon the earliest to occur of (1) the mutual consent of the Reporting Person and Siemens, (2) the effectiveness of the Merger, (3) the termination of the Merger Agreement in accordance with its terms, or (4) an amendment of the Merger Agreement that reduces or otherwise changes the form of the consideration to which the Reporting Person would be entitled. The description of the Voting Agreement contained herein is qualified in its entirety by reference to the Voting Agreement included as Exhibit 1 to this Schedule 13D, which Voting Agreement is hereby incorporated into this Item 4 as though set forth in full herein. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) The Reporting Person beneficially owns 4,764,994 shares of the Company's common stock which represents 16.1% of the 29,571,667 shares of common stock outstanding as of March 2, 2006, as reported in the Company's Form 10-K for the year ended December 31, 2005. (b) As a result of the Voting Agreement, the Reporting Person has the shared power to vote and the shared power to dispose of the shares of the Company's common stock held by her. (c) The Reporting Person engaged in no transactions in the common stock in the past 60 days. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. See Item 4 regarding the Voting Agreement. 4 of 6 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 1. Shareholder Agreement (Voting) between Marilyn Ziering and Siemens Medical Solutions USA, Inc. dated April 26, 2006. 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. Date: April 28, 2006 /S/ Marilyn Ziering -------------------------------------- Marilyn Ziering 5 of 6 EXHIBIT INDEX 1. Shareholder Agreement (Voting) between Marilyn Ziering and Siemens Medical Solutions USA, Inc. dated April 26, 2006. 6 of 6 EX-99.1 2 v20015exv99w1.txt EXHIBIT 99.1 EXHIBIT 1 SHAREHOLDER AGREEMENT (VOTING) This SHAREHOLDER AGREEMENT (this "Agreement"), dated as of April 26, 2006, is by and between Siemens Medical Solutions USA, Inc., a Delaware corporation (the "Purchaser") and each of the shareholder(s) set forth in the signature pages hereto (each, a "Shareholder" and collectively, the "Shareholders"). W I T N E S S E T H: WHEREAS, concurrently herewith, Purchaser, Dresden Acquisition Corporation, a California corporation ("Merger Sub"), and Diagnostic Products Corporation, a California corporation (the "Company") are entering into an Agreement and Plan of Merger (as such agreement may hereafter be amended from time to time, the "Merger Agreement"); WHEREAS, each Shareholder is the beneficial owner of the number of shares of Company Common Stock set forth opposite such person's name on Schedule I (the "Shares"); WHEREAS, the Company Shareholders' Approval is required to consummate the Merger; and WHEREAS, the board of directors of the Company has, prior to the execution of this Agreement, by resolution duly adopted by unanimous vote at a meeting duly called and held and at which all directors were present, which resolution has not subsequently been rescinded or modified in any manner whatsoever, (i) determined that the Merger Agreement and the Merger are fair to and in the best interests of the shareholders of the Company, (ii) approved the Merger Agreement and the transactions contemplated thereby, including the Merger, and (iii) resolved to recommend that holders of shares of the Company Common Stock approve the Merger Agreement and the Merger. NOW, THEREFORE, in consideration of the foregoing and the mutual promises, representations, warranties, respective covenants and agreements of the parties contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I CERTAIN DEFINITIONS SECTION 1.1 DEFINED TERMS. Terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. ARTICLE II VOTING AGREEMENT SECTION 2.1 GRANT OF PROXY; AGREEMENT TO VOTE. Upon the terms and subject to the conditions hereof, each Shareholder hereby grants with respect to the Shares owned by such Shareholder, in addition to any shares of Company Common Stock acquired by Shareholder after the date hereof, an irrevocable proxy to the Purchaser (and agrees to execute such documents or certificates evidencing such proxy as the Purchaser may reasonably request) to vote, at any meeting of the Company's shareholders, or in connection with any written consent of the Company's shareholders, (i) in favor of the approval of the Merger Agreement and the Merger and (ii) against any Acquisition Proposal, other than the Merger. Each Shareholder further agrees to cause all Shares owned by such Shareholder, in addition to any shares of Company Common Stock acquired by Shareholder after the date hereof, to be voted in accordance with the foregoing. This proxy is coupled with an interest and until this Agreement is terminated pursuant to Section 5.1 hereof is irrevocable. Upon the execution of this Agreement by a Shareholder, such Shareholder hereby revokes any and all other proxies (other than the proxy granted herein) given by such Shareholder with respect to the subject matter hereof. Each Shareholder acknowledges receipt and review of a copy of the Merger Agreement. Each Shareholder agrees not to enter into any agreement or commitment with any Person, the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Article II. ARTICLE III REPRESENTATIONS AND WARRANTIES SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Each Shareholder represents and warrants to the Purchaser that (i) such Shareholder is the direct or indirect beneficial owner of the Shares set forth opposite such Shareholder's name on Schedule I, (ii) this Agreement has been duly executed and delivered by such Shareholder, and (iii) this Agreement constitutes the valid and binding agreement of such Shareholder, enforceable against such Shareholder in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law), in each case now or hereafter in effect. SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser represents and warrants to Shareholders that (i) this Agreement has been duly executed and delivered by the Purchaser, and (ii) this Agreement constitutes the valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law), in each case now or hereafter in effect. ARTICLE IV COVENANTS SECTION 4.1 COVENANTS OF THE SHAREHOLDERS. Each Shareholder covenants and agrees with the Purchaser that, during the period commencing on the date hereof and ending on the date this Agreement is terminated under Section 5.1 hereof: (a) Shareholder shall not sell, transfer, pledge, or dispose of any Shares or offer to make such a sale, transfer, pledge or other disposition (collectively, "Transfer") to any Person; provided that this Section 4.1(a) shall not prohibit a Transfer of Shares by a Shareholder (i) if Shareholder is an individual, (ii) to any member of Shareholder's immediate family, or to a trust for the benefit of Shareholder or any member of Shareholder's immediate family, (iii) upon the death of Shareholder, or (iv) if Shareholder is a partnership or limited liability company, to one or more partners or members of Shareholder or to an affiliated corporation under common control with Shareholder; provided that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Purchaser, to be bound by the terms of this Agreement. (b) Shareholder waives, and agrees not to exercise or assert, any applicable appraisal rights under Chapter 13 of the California General Corporation Law in connection with the Merger. (c) Shareholder shall execute and deliver such other documents and instruments and take such further actions as are necessary in order to ensure that the Purchaser receives the benefit of this Agreement. ARTICLE V TERMINATION SECTION 5.1 TERMINATION. This Agreement shall terminate and be of no further force or effect upon the earliest to occur of (i) the mutual written consent of the Purchaser and the Shareholder, (ii) the Effective Time, (iii) the termination of the Merger Agreement in accordance with its terms, or (iv) an amendment to the Merger Agreement that reduces or otherwise changes the form of the Merger Consideration to which the Shareholders would have been entitled. SECTION 5.2 EFFECT OF TERMINATION. In the event of any termination of this Agreement, this Agreement (other than Article VI) shall become void and of no effect with no liability on the part of any party hereto; provided that no such termination shall relieve any party hereto from liability for any willful breach of this Agreement prior to termination thereof. ARTICLE VI GENERAL SECTION 6.1 NOTICES. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given to a party if delivered in person or sent by overnight delivery (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice) on the date of delivery, or if by facsimile, upon confirmation of receipt: If to the Purchaser: Siemens Medical Solutions USA, Inc. 51 Valley Stream Parkway Malvern, Pennsylvania 19355 Facsimile No: (610) 448-1710 Attention: Secretary with a copy to: Siemens Corporation 153 East 53rd Street, 56th Floor New York, New York 10022 Facsimile No: (212) 258-4490 Attention: General Counsel With a copy Clifford Chance US LLP (which shall not 31 West 52nd Street constitute notice) to: New York, New York 10019 Attention: John A. Healy Karl A. Roessner Telephone: 212-878-8000 Telecopier: 212-878-8375 If to the Diagnostics Products Corporation Shareholders: 5210 Pacific Concourse Drive Los Angeles, California 90045 Attention: Marilyn Ziering Telecopier: (310) 645-9999 With a copy O'Melveny & Myers LLP (which shall not 400 South Hope Street constitute notice) to: Los Angeles, California 90071 Attention: C. James Levin Telephone: 213-430-6000 Telecopier: 213-430-6407 SECTION 6.2 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, whether express or implied, is intended to or shall confer any rights, benefits or remedies under or by reason of this Agreement on any persons other than the parties and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third person to any party, nor shall any provisions give any third person any right or subrogation over or action against any party. SECTION 6.3 GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without giving effect to the conflicts of law provisions thereof. Each party waives any right to a trial by jury in any action to enforce or defend any right under this Agreement or any amendment, instrument, document or agreement delivered, or which in the future may be delivered, in connection with this Agreement and agrees that any action shall be tried before a court and not before a jury. SECTION 6.4 ASSIGNMENT; SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. No party to this Agreement may assign its rights or delegate its obligations under this Agreement, whether by operation of law or otherwise, to any other person without the express prior written consent of the other party hereto. Any such assignment or transfer made without the prior written consent of the other party hereto shall be null and void. SECTION 6.5 AMENDMENTS; WAIVERS. Subject to applicable law, this Agreement may only be amended pursuant to a written agreement executed by all the parties, and no waiver of compliance with any provision or condition of this Agreement and no consent provided for in this Agreement shall be effective unless evidenced by a written instrument executed by the party against whom such waiver or consent is to be effective. No waiver of any term or provision of this Agreement shall be construed as a further or continuing waiver of such term or provision or any other term or provision. SECTION 6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of all the parties and supersedes any and all prior and contemporaneous agreements, memoranda, arrangements and understandings, both written and oral, between the parties, or either of them, with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made by any party which is not contained in this Agreement and no party shall be bound by, or be liable for, any alleged representation, promise, inducement or statement of intention not contained herein or therein. SECTION 6.7 COUNTERPARTS. To facilitate execution, this Agreement may be executed in any number of counterparts (including by facsimile transmission), each of which shall be deemed to be an original, but all of which together shall constitute one binding agreement on the parties, notwithstanding that not all parties are signatories to the same counterpart. SECTION 6.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would occur in the event any of the provisions of this Agreement were not performed in accordance with the terms hereof and that the parties are entitled to specific performance of the terms hereof in addition to any other remedies at law or in equity. SECTION 6.9 SHAREHOLDER CAPACITY. By executing and delivering this Agreement, the Shareholder makes no agreement or understanding herein in his or her capacity or actions as a director, officer or employee of the Company. The Shareholder is signing and entering into this Agreement solely in his, her or its capacity as the beneficial owner of the Shares, and nothing herein shall limit or affect in any way any actions that may be hereafter taken by him or her in his or her capacity as an employee, officer or director of the Company or in any other capacity. SECTION 6.10 HEADINGS; CONSTRUCTION. The Article, Section and paragraph headings contained in this Agreement are for reference purposes only and do not form a part of this Agreement and do not in any way modify, interpret or construe the intentions of the parties. As used in this Agreement, unless otherwise provided to the contrary, (a) all references to days or months shall be deemed references to calendar days or months and (b) any reference to a "Section" or "Article" shall be deemed to refer to a section or article of this Agreement. The words "hereof," "herein" and "hereunder" and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." Unless otherwise specifically provided for herein, the term "or" shall not be deemed to be exclusive. [Remainder of page left intentionally blank] IN WITNESS WHEREOF, the parties have duly executed this Shareholder Agreement as of the date first above written. SIEMENS MEDICAL SOLUTIONS USA, INC. By: /s/ ERICH R. REINHARDT ---------------------------------- Name: Prof. Dr. Erich R. Reinhardt Title: Chairman By: /s/ GEORG OBERMEYER ---------------------------------- Name: Georg Obermeyer Title: Chief Financial Officer S-1 SHAREHOLDER: /s/ MARILYN ZIERING -------------------------------------- Marilyn Ziering, individually and as trustee SCHEDULE I
Name and Address of Shareholder Shares - ------------------------------- ------ Marilyn Ziering c/o 4,756,152 (By Trust) Diagnostics Products Corporation 3,956 (By 401k) 5210 Pacific Concourse Drive 4,886 (By 401k of Los Angeles, California 90045 Deceased Husband)
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