SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-l(a) AND AMENDMENTS THERETO FILED PURSUANT
TO RULE 13d-2(a)
Ostex International, Inc.
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(Name of Issuer)
Common Stock, Par Value $.01 Per Share
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(Title of Class of Securities)
68859Q 10 1
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(CUSIP number)
Ron Zwanziger
Inverness Medical Innovations, Inc.
51 Sawyer Road, Suite 200
Waltham, MA 02453
(781) 647-3900
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(Name, address and telephone number of person authorized to receive notices
and communications)
September 6, 2002
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
* 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, as amended (the "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 included hereto).
(Continued on the following pages)
(Page 1 of 7 Pages)
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CUSIP NO. 68859Q 10 1 13D PAGE 2 OF 7 PAGES
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1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Inverness Medical Innovations, Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
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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
Delaware
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NUMBER OF SHARES 7. SOLE VOTING POWER
BENEFICIALLY OWNED BY EACH 6,492,981 (See Item 5)
REPORTING PERSON WITH
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8. SHARED VOTING POWER
0
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9. SOLE DISPOSITIVE POWER
2,503,661 (See Item 5)
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10. SHARED DISPOSITIVE POWER
0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,989,320 (See Item 5)
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |X|
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.7% (See Item 5)
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14. TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP NO. 68859Q 10 1 13D PAGE 3 OF 7 PAGES
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ITEM 1. SECURITY AND ISSUER.
The securities to which this statement relates are the common stock,
par value $.01 per share (the "Common Stock"), of Ostex International, Inc., a
Washington corporation (the "Company"). The principal executive offices of the
Company are located at 2203 Airport Way South, Suite 400, Seattle, Washington
98134.
ITEM 2. IDENTITY AND BACKGROUND.
(a) - (c) Inverness Medical Innovations, Inc., a Delaware corporation
("Inverness" or the "Reporting Person"), develops, manufactures and markets
consumer health care products, including self-test diagnostic products for the
women's health market and vitamins and nutritional supplements. Inverness's
principal business and office address is 51 Sawyer Road, Suite 200, Waltham,
Massachusetts 02453.
Attached hereto as EXHIBIT 99.1 is a list of the directors and
executive officers of Inverness which contains the information required to be
provided in this statement with respect to each such person.
(d) - (e) During the last five (5) years, neither Inverness nor, to
Inverness' knowledge, any of the persons listed in EXHIBIT 99.1, has been
convicted in any criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five (5) years, neither Inverness nor, to
Inverness' knowledge, any of the persons listed in EXHIBIT 99.1, was a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as result of 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 violation
with respect to such laws.
(f) Except as otherwise stated therein, each of the persons listed in
EXHIBIT 99.1 is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On September 6, 2002, Inverness, the Company and each of Thomas A.
Bologna, in his individual capacity and as trustee of the Jaclyn Marie Bologna
Trust, Thomas J. Cable, Elisabeth L. Evans, M.D., David R. Eyre, Ph.D., Uropa
Investments, Frederic J. Feldman, Ph.D., John H. Trimmer and CH Partners IV
Limited Partnership (collectively, the "Shareholders") entered into a Voting
Agreement (the "Voting Agreement") and Inverness and the Company entered into a
Stock Option Agreement (the "Option Agreement") as an inducement for Inverness
to enter into the Merger Agreement discussed in Item 4 and in consideration
thereof. Inverness has not paid additional consideration to the Shareholders or
the Company in connection with the execution and delivery of the Voting
Agreement and the Option Agreement. Also, Inverness has not
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CUSIP NO. 68859Q 10 1 13D PAGE 4 OF 7 PAGES
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specifically reserved any funds to be used to exercise the option granted under
the Option Agreement if such option becomes exercisable.
The information set forth in Item 4 of this Schedule 13D is hereby
incorporated by reference.
ITEM 4. PURPOSE OF TRANSACTIONS.
(a) - (b) On September 6, 2002, the Company and Inverness entered into
an Agreement and Plan of Merger (the "Merger Agreement"). Pursuant to the Merger
Agreement, Geras Acquisition Corp., a wholly-owned subsidiary of Inverness
("Merger Sub"), will be merged with and into the Company, with the Company being
the surviving corporation of such merger (the "Merger"). As a result of the
Merger, the Company will become a wholly-owned subsidiary of Inverness. The
aggregate number of shares of common stock, $.001 par value, of Inverness
("Inverness Common Stock") to be issued in the Merger in exchange for the
outstanding shares of Common Stock and to be reserved for the options and
warrants to be assumed by Inverness is 2.3 million shares, with each share of
Common Stock expected to convert into approximately 0.1494 shares of Inverness
Common Stock. Based on the Company's current capital structure, approximately
1.88 million shares of Inverness Common Stock are to be issued at closing and
approximately 420,000 shares are to be reserved for assumed options and
warrants. The obligations of the parties to the Merger Agreement to effect the
Merger are subject to certain conditions, including the approval of the Merger
by the Company's shareholders.
Inverness entered into the Voting Agreement in connection with the
Merger Agreement. Pursuant to the Voting Agreement, each of the Shareholders
agreed to vote, and has granted to Inverness an irrevocable proxy and power of
attorney to vote, his shares of Common Stock owned as of September 6, 2002 or
acquired thereafter: (i) in favor of the adoption of the Merger Agreement and
the approval of the Merger and the other transactions contemplated by the Merger
Agreement; (ii) against (x) any Acquisition Proposal and (y) any action which
could reasonably be expected to impede, interfere with, delay, postpone or
materially adversely affect consummation of the transactions contemplated by the
Merger Agreement and (iii) in favor of any other matter reasonably necessary for
consummation of the transactions contemplated by the Merger Agreement. The term
"Acquisition Proposal" is defined to include any actual or proposed (i) merger,
consolidation or similar transaction involving the Company, (ii) sale, lease or
other disposition, directly or indirectly, of 15% or more of the Company's
assets, (iii) issuance, sale or other disposition by the Company of securities
(or options to purchase, or securities convertible into, securities)
representing 15% or more of the total votes associated with the Company's
outstanding securities, (iv) tender offer or exchange offer where any person or
group obtains beneficial ownership, or the right to acquire beneficial
ownership, of 15% or more of the outstanding Common Stock, (v) recapitalization,
restructuring, liquidation or dissolution or (vi) similar transaction to those
described in (i) - (v), but the term "Acquisition Proposal" does not include the
Merger and related transactions. The Voting Agreement also provides that each
Shareholder will not take any action to directly or indirectly encumber or
dispose of, or enter into a voting agreement or arrangement or grant any proxy
or power of attorney with respect to, any of such Shareholder's shares of Common
Stock owned as of September 6, 2002 or acquired
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CUSIP NO. 68859Q 10 1 13D PAGE 5 OF 7 PAGES
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thereafter. The Voting Agreement shall terminate immediately upon the earlier
of: (i) the effective time of the Merger or (ii) the termination of the Merger
Agreement in accordance with its terms.
In connection with the execution of the Merger Agreement, Inverness and
the Company also entered into the Option Agreement. Pursuant to the Option
Agreement, the Company granted Inverness an option to purchase up to
approximately 19.9% of the outstanding shares of Common Stock (currently,
2,503,661 shares) at a price of $2.39 per share. The option will become
exercisable if the Merger Agreement is terminated in certain circumstances: (i)
in connection with the failure of the Company to obtain shareholder approval of
the Merger, if the Company or its board of directors takes or fails to take
certain actions relating to an Acquisition Proposal during the one year period
after such termination of the Merger Agreement; or (ii) in which Inverness would
be entitled to receive the termination amount of $1.8 million from the Company
under the Merger Agreement. The option will terminate upon the earliest to occur
of: (i) the effective time of the Merger; (ii) 90 days after the Company pays
the full $1.8 million termination amount under the Merger Agreement to
Inverness; (iii) 12 months after the date on which the option first becomes
exercisable; or (iv) the termination of the Merger Agreement if, upon such
termination, the option is not exercisable and cannot become exercisable.
Additionally, the aggregate total profit that Inverness may receive upon all
exercises of the option for the cash spread as described in the Option Agreement
and upon all exercises of the option and subsequent sales of the shares of
Common Stock received upon exercise of the option is limited to $1.8 million
less any termination amount paid to Inverness by the Company under the Merger
Agreement. Inverness is also prohibited from exercising the option in
circumstances where such exercise would result in Inverness exceeding this
profit limit assuming that all shares of Common Stock received upon such
exercise, and all other shares received upon prior exercises of the option that
are still held by Inverness, are sold for a price per share equal to the closing
price of the Common Stock on the immediately preceding trading day.
The purpose of the transactions contemplated by the Voting Agreement
and the Option Agreement is to consummate the transactions contemplated under
the Merger Agreement.
(c) Not applicable.
(d) Upon the consummation of the Merger, the directors of Merger Sub
immediately prior to the effective time of the Merger will be the directors of
the Company, until their respective successors are duly elected or appointed and
qualified. Upon consummation of the Merger, the officers of Merger Sub
immediately prior to the effective time of the Merger will be the initial
officers of the Company, until their respective successors are duly appointed.
(e) Other than as a result of the Merger described in Item 4(a) above,
not applicable.
(f) Not applicable.
(g) At the effective time of the Merger, the articles of incorporation
of the Company shall be amended in their entirety to read as the articles of
incorporation of Merger Sub (except that the name of the Company will remain
Ostex International, Inc.), and such articles of
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CUSIP NO. 68859Q 10 1 13D PAGE 6 OF 7 PAGES
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incorporation will be the articles of incorporation of the Company until
thereafter changed or amended in accordance with applicable law. At the
Effective Time of the Merger, the bylaws of Merger Sub, as in effect immediately
prior to the Effective Time of the Merger, shall be the bylaws of the Company,
until thereafter changed or amended as provided therein or by applicable law.
(h) - (i) If the Merger is consummated as planned, the Common Stock
will be deregistered under the Securities Act of 1933, as amended, and delisted
from the Nasdaq National Market.
(j) Other than described above, Inverness currently has no plans or
proposals which relate to or would result in any of the matters listed in Items
4(a)-(j) of Schedule 13D.
References to, and descriptions of, the Merger, the Merger Agreement,
the Voting Agreement and Option Agreement as set forth herein are qualified in
their entirety by reference to the copies of the Merger Agreement, the Voting
Agreement and the Option Agreement respectively, included as EXHIBITS 99.2,
99.3, and 99.4, respectively, to this Statement, and such agreements are
incorporated herein in their entirety where such references and descriptions
appear.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) Prior to September 6, 2002, Inverness was not the
beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act)
of any shares of Common Stock. Upon execution of the Voting Agreement, Inverness
may be deemed to have acquired sole voting power (for the purposes described in
the Voting Agreement) with respect to, and beneficial ownership of, the shares
of Common Stock beneficially owned by each of the Shareholders. Based on
representations made by the Shareholders in the Voting Agreement, the
Shareholders subject to the Voting Agreement beneficially own 3,989,320 shares
of Common Stock, including 1,516,167 shares of Common Stock subject to options
exercisable within 60 days of September 6, 2002. Additionally, Inverness may be
deemed to beneficially own, and have sole voting and dispositve power of, the
2,503,661 shares of Common Stock subject to the Option Agreement; however,
Inverness is not entitled to any rights as a shareholder of the Company with
respect to the shares of Common Stock subject to the Option Agreement prior to
its exercise of the option granted thereunder. As Inverness' ability to acquire
Common Stock pursuant to the Option Agreement is subject to certain material
contingencies, Inverness expressly disclaims beneficial ownership of the shares
of Common Stock subject to the Option Agreement. The total number of shares of
Common Stock that Inverness may be deemed to beneficially own is 6,492,981
shares constituting approximately 51.6% of the total issued and outstanding
shares of Common Stock (based on 12,581,216 shares, the number of shares
outstanding as of September 6, 2002 as represented by the Company in the Merger
Agreement). The total number of shares of Common Stock that Inverness may be
deemed to beneficially own, excluding those shares as to which Inverness
disclaims beneficial ownership, is 3,989,320 shares constituting approximately
31.7% of the total issued and outstanding Common Stock (based on 12,581,216
shares as noted above).
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CUSIP NO. 68859Q 10 1 13D PAGE 7 OF 7 PAGES
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(c) The information set forth in Item 4 above is incorporated herein by
reference.
(d) To Inverness' knowledge, each Shareholder has the right to receive
or the power to direct the receipt of dividends from, or proceeds from the sale
of, the shares of Common Stock owned by such Shareholder and reported by this
statement.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The information set forth under Items 4 and 5 above and the Exhibits
attached hereto is incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following documents are filed as Exhibits to this statement.
EXHIBIT NO. DESCRIPTION
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*99.1 Directors and Executive Officers of Inverness Medical Innovations, Inc.
99.2 Agreement and Plan of Merger, dated as of September 6, 2002, by and among Inverness
Medical Innovations, Inc., Geras Acquisition Corp. and Ostex International, Inc.
(incorporated by reference to Exhibit 99.2 of Inverness Medical Innovation's Current
Report on Form 8-K filed September 9, 2002).
99.3 Voting Agreement, dated as of September 6, 2002, by and between Inverness Medical
Innovations, Inc. and certain shareholders of Ostex International, Inc. named therein
(incorporated by referenced to Exhibit 99.3 of Inverness Medical Innovations, Inc.'s
Current Report on Form 8-K filed September 9, 2002).
99.4 Stock Option Agreement, dated as of September 6, 2002, by and between Inverness
Medical Innovations, Inc. and Ostex International, Inc. (incorporated by reference to
Exhibit 99.4 of Inverness Medical Innovations Inc.'s Current Report on Form 8-K filed
September 9, 2002).
* Filed herewith
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned hereby certifies that the information set forth in this statement is
true, complete and correct.
Inverness Medical Innovations, Inc.
Date: September 16, 2002 By: /s/ Paul T. Hempel
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Name: Paul T. Hempel
Title: General Counsel and Secretary