sch13d.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under
the Securities Exchange Act of 1934
(Amendment
No. 3)*
E-Z-EM,
INC.
(Name
of Issuer)
Common
stock, $.01 par value per share
(Title
of Class of Securities)
269305405
(CUSIP
Number)
Linda
B. Stern
23
I.U. Willets Road
Old
Westbury, New York 11568
(516)
997-0468
Copy
to:
Robert
B. Pincus, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
One
Rodney Square, P.O. Box 636
Wilmington,
Delaware 19899-0636
(302)
651-3000
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(Name,
Address and Telephone Number of Person Authorized
to
Receive Notices and Communications)
October
30, 2007
(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 §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. □
NOTE: Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See Rule 240.13d-7 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.
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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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SCHEDULE13D
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CUSIP
No. 12008R-10-7
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1
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NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
ONLY)
Estate
of Howard S. Stern (EIN: 26-6028365)
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2
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨
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3
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SEC
USE ONLY
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4
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SOURCE
OF FUNDS
Not
Applicable
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5
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d)
OR 2(e)
¨
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6
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CITIZENSHIP
OR PLACE OF ORGANIZATION
New
York State
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY
EACH
REPORTING
PERSON
WITH
|
7
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SOLE
VOTING POWER
0
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8
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SHARED
VOTING POWER
1,350,198
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9
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SOLE
DISPOSITIVE POWER
0
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10
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SHARED
DISPOSITIVE POWER
1,350,198
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11
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,350,198
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12
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CHECK
BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
¨
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13
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.3%
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14
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TYPE
OF REPORTING PERSON
OO
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SCHEDULE13D
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CUSIP
No. 12008R-10-7
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|
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1
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NAME
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
ONLY)
Linda
B. Stern
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2
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨
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3
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SEC
USE ONLY
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4
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SOURCE
OF FUNDS
Not
Applicable
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5
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CHECK
BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
¨
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6
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CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
|
NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE
VOTING POWER
36,305
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8
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SHARED
VOTING POWER
1,850,198
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9
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SOLE
DISPOSITIVE POWER
36,305
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10
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SHARED
DISPOSITIVE POWER
1,850,198
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11
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,850,198
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12
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CHECK
BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES (See
Instructions)
¨
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13
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.2%
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14
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TYPE
OF REPORTING PERSON
IN
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This
Amendment No. 3 to Schedule 13D
("Amendment No. 3") amends the Schedule 13D (the "Initial Statement") filed
by
Linda B. Stern ("Linda Stern" or "Mrs. Stern") and the Estate of Howard S.
Stern
(the "H. Stern Estate" and, with Linda Stern, the "Reporting Persons") on
January 23, 2006, as amended by Amendment No. 1 thereto filed on May 23, 2006
("Amendment No. 1") and Amendment No. 2 thereto filed on October 3, 2007
("Amendment No. 2" and, collectively with the Initial Statement, Amendment
No. 1
and this Amendment No. 3, the "Statement") relating to the beneficial ownership
of shares of common stock, par value $0.10 per share (the "E-Z-EM Common
Stock"), of E-Z-EM, Inc., a Delaware corporation (“E-Z-EM”). Unless otherwise
indicated, all capitalized terms used herein shall have the meanings set forth
in the Statement and, unless amended hereby, all information previously filed
remains in effect.
Item
4. Purpose of Transaction
Item
4 is hereby amended and supplemented by adding the following at the end
thereof:
On
October 30, 2007, E-Z-EM, Bracco
Diagnostics, Inc. ("Bracco") and Eagle Acquisition Sub, Inc. ("Merger Sub"),
a
wholly-owned subsidiary of Bracco, entered into an Agreement and Plan of Merger
(the "Merger Agreement") pursuant to which Merger Sub will be merged with and
into E-Z-EM (the "Merger"), with E-Z-EM surviving the Merger as a direct, wholly
owned subsidiary of Bracco. At the effective time of the Merger each
issued and outstanding share of E-Z-EM Common Stock (other than shares owned
by
the Company or Bracco or as to which the holder has properly exercised its
right
to appraisal under Delaware law) will be converted into the right to receive
$21.00 in cash, without interest. The Merger is subject to the
satisfaction or, to the extent permitted by applicable law, waiver of the
conditions set forth in the Merger Agreement, including adoption of the Merger
Agreement by E-Z-EM's stockholders, certain antitrust and regulatory filings
and
approvals and the absence of certain material adverse changes in the business
of
E-Z-EM. E-Z-EM will seek stockholder approval at a special meeting of
its stockholders called for the purpose of voting on the Merger Agreement (the
"Stockholder Meeting").
As
a condition and inducement to
Bracco's entering into the Merger Agreement, the Reporting Persons and certain
other stockholders of E-Z-EM entered into a Voting Agreement, dated as of
October 30, 2007 (the "Voting Agreement"), with E-Z-EM and Bracco pursuant
to
which the Reporting Persons have agreed to vote all of the shares of E-Z-EM
Common Stock beneficially owned by them as of the date hereof or acquired by
them after the date hereof:
·
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in
favor of the adoption of the Merger Agreement and the approval of
the
Merger, and any other actions required to complete the
Merger;
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·
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in
favor of any other matter reasonably necessary to the consummation
of the
transactions contemplated by the Merger Agreement and considered
and voted
upon by the stockholders of E-Z-EM;
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·
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against
any action, agreement or transaction (other than the Merger Agreement
or
the transactions contemplated thereby) or proposal (including any
competing proposal to acquire E-Z-EM) that the Reporting Persons
would
reasonably expect to result in a breach in any material respect of
any
covenant, representation or warranty or any other obligation of E-Z-EM
under the Merger Agreement; and
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·
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against
any competing proposal to acquire E-Z-EM or any action that is intended,
or that would reasonably be expected, to prevent or materially delay
or
interfere with the Merger and the other transactions contemplated
by the
Merger Agreement.
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Each
of the Reporting Persons has
granted Bracco an irrevocable proxy to vote such Reporting Person's shares
as
provided above during the term of the Voting Agreement. Each of the
Reporting Persons also has agreed not to sell or otherwise transfer any of
the
shares of E-Z-EM Common Stock beneficially owned by such Reporting Person while
the Voting Agreement remains in effect.
The
Voting Agreement terminates upon
the earliest to occur of:
·
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the
approval of the Merger Agreement by E-Z-EM's stockholders at the
Stockholder Meeting,
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·
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the
effectiveness of any amendment to the Merger Agreement that reduces
the
Merger consideration or changes the form of the consideration (unless
the
cash consideration provided for remains the same and the amendment
only
provides for additional consideration of a different
form),
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·
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the
effective time of the Merger,
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·
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the
termination of the Merger Agreement in accordance with its terms,
including under circumstances where E-Z-EM has terminated the Merger
Agreement to accept a superior proposal to acquire the
Company,
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·
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the
written agreement of the parties to terminate the Voting Agreement,
and
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·
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April
30, 2008, unless the termination date of the Merger Agreement is
extended
to July 31, 2008, in which case, July 31,
2008.
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Pursuant
to the Voting Agreement,
E-Z-EM has agreed to indemnify the Reporting Persons and the other stockholders
who are parties to the Voting Agreement against losses, claims and liabilities
incurred by them that arise out of their execution, delivery or performance
of
the Voting Agreement. E-Z-EM has also agreed to reimburse the
expenses of the Reporting Person and the other stockholders who are parties
to
the Voting Agreement incurred in connection with the Voting
Agreement.
Except
as set forth in this Item 4,
the Reporting Persons have no plans or proposals that relate to or would result
in any of the matters set forth in clauses (a) through (j) of Item 4 of Schedule
13D.
The
preceding summary of certain
provisions of the Merger Agreement and the Voting Agreement, copies of which
are
filed as exhibits hereto and incorporated herein by reference, is not intended
to be complete and is qualified in its entirety by reference to the full text
of
such agreements.
Item
6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
Item
6 is hereby amended and supplemented by inserting the following at the end
thereof:
As
described in Item 4, pursuant to the Voting Agreement, the Reporting Persons
have agreed to cause all of the shares of E-Z-EM Common Stock beneficially
owned
by them to be voted at the Stockholder Meeting in favor of the adoption of
the
Merger Agreement and against certain competing transactions. The
information set forth in Item 4 of this Schedule 13D is hereby incorporated
by
reference herein.
Item
7. Material to Be Filed as Exhibits
Exhibit
Number
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Description
of Exhibit
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1
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Agreement
and Plan of Merger, dated as of October 30, 2007, by and among E-Z-EM,
Inc., Bracco Diagnostics, Inc. and Eagle Acquisition Sub, Inc. (Filed
as
Exhibit 2.1 to E-Z-EM's Current Report on Form 8-K, filed on October
30,
2007 and incorporated herein by reference).
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2
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Voting
Agreement, dated as of October 30, 2007, by and among E-Z-EM, Inc.,
Bracco
Diagnostics, Inc., the Reporting Persons and the other stockholders
of
E-Z-EM, Inc. named therein (Filed as Exhibit 99.2 to E-Z-EM's Current
Report on Form 8-K, filed on October 30, 2007 and incorporated herein
by
reference).
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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:
October 31, 2007
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THE
ESTATE OF HOWARD S. STERN
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/s/ Linda
B. Stern
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Linda
B. Stern
Executor
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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:
October 31, 2007
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/s/ Linda
B. Stern
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Linda
B. Stern
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