OMB APPROVAL | ||
| OMB Number: |
3235-0145 | |
| Expires: |
December 31, 2005 | |
| Estimated average burden | ||
| hours per response . . . 11 | ||
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under The Securities Exchange Act of 1934
(Amendment No. 1)*
DepoMed, Inc.
(Name of Issuer)
Common Stock, no par value per share
(Title of Class of Securities)
249908 10 4
(CUSIP Number)
Linda L. Curtis, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
(213) 229-7582
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
Nov. 14, 2003
(Date of Event Which Requires Filing of Statement on Schedule 13D)
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), checking 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 (“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).
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 2 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of Above Persons (entities only):
MDS Capital Corp. |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Ontario, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
CO |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 3 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of Above Persons (entities only):
MDS Life Sciences Technology Fund II NC Limited Partnership |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
WC |
|||
| 5. | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Ontario, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5% (3) |
|||
| 14. | Type of Reporting Person (See Instructions):
PN |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 4 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of Above Persons (entities only):
MDS Life Sciences Technology Fund II Quebec Limited Partnership |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
WC |
|||
| 5. | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Quebec, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
PN |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 5 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of Above Persons (entities only):
MLII Co-Investment Fund NC Limited Partnership |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
WC |
|||
| 5. | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Ontario, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
PN |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 6 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
SC Biotechnology Development Fund LP |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
WC |
|||
| 5. | Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Cayman Islands |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
PN |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 7 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
MDS LSTF II (NCGP) Inc. |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Ontario, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
CO |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 8 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
MDS LSTF II (QGP) Inc. |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Quebec, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
CO |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 9 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
MLII (NCGP) Inc. |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Ontario, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
CO |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 10 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
SC (GP) Inc. |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Cayman Islands |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
CO |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 11 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
MDS Capital Management Corp. |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only:
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
|
¨ | ||
| 6. | Citizenship or Place of Organization:
Ontario, Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
2,991,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
2,991,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
2,991,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
CO |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 12 of 21 Pages |
| 1. | Name of Reporting Persons: I.R.S. Identification No. of above persons (entities only):
Michael Callaghan |
|||
| 2. | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ¨ (b) ¨ |
|||
| 3. | SEC Use Only
|
|||
| 4. | Source of Funds (See Instructions):
AF |
|||
| 5. | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):
|
¨
| ||
| 6. | Citizenship or Place of Organization:
Canada |
|||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. Sole Voting Power
0 8. Shared Voting Power
3,021,598(1) 9. Sole Dispositive Power
0 10. Shared Dispositive Power
3,021,598(1) | |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person:
3,021,598(1) |
|||
| 12. | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
x(2)
| ||
| 13. | Percent of Class Represented by Amount in Row (11):
8.5%(3) |
|||
| 14. | Type of Reporting Person (See Instructions):
IN |
|||
| (1) | Includes 810,186 shares of Common Stock underlying the Warrants exercisable on July 21, 2003 and 30,000 shares of Common Stock underlying the Options. |
| (2) | Excludes certain shares of Common Stock (including those subject to Warrants) beneficially owned by certain other shareholders identified in Item 6 of the Schedule 13D – Voting Commitments. |
| (3) | The percent beneficial ownership of the voting stock is based on 34,583,368 shares of Common Stock outstanding on March 5, 2004, as reported in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, together with the shares of Common Stock underlying the Purchasers’ Warrants exercisable on July 21, 2003 and the shares of Common Stock underlying the Options. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 13 of 21 Pages | ||
This Amendment No. 1 to Schedule 13D (this “Amendment No. 1”) amends and supplements the Statement on Schedule 13D filed with the Securities and Exchange Commission (the “SEC”) on May 1, 2003 (the “Schedule 13D”), which relates to the common stock, no par value per share (the “Common Stock”) of DepoMed, Inc., a California corporation (the “Issuer”). Capitalized terms used herein and not otherwise defined in this Amendment No. 1 shall have the meanings set forth in the Schedule 13D.
This Amendment No. 1 is being filed by MDS Capital Corp., a corporation incorporated under the laws of Ontario, Canada (“MDS Capital”), MDS Life Sciences Technology Fund II NC Limited Partnership, an Ontario limited partnership (“Life NC”), MDS Life Sciences Technology Fund II Quebec Limited Partnership, a Quebec limited partnership (“Life Quebec”), MLII Co-Investment Fund NC Limited Partnership, an Ontario limited partnership (“MLII NC”), SC Biotechnology Development Fund LP, a Cayman Islands limited partnership (“SC Biotech”), MDS LSTF II (NCGP) Inc., an Ontario corporation (“NCGP”), MDS LSTF II (QGP) Inc., a Quebec corporation (“QGP”), MLII (NCGP) Inc., an Ontario corporation (“MLII GP”), SC (GP) Inc., a Cayman Islands corporation (“SCGP”), MDS Capital Management Corp. (formerly MDS Health Ventures Management Inc.), an Ontario corporation (“MDS Management”) and Michael Callaghan, an individual and citizen of Canada (collectively, “Reporting Persons”) pursuant to their Joint Filing Agreement (incorporated by reference to Exhibit 3 to the Schedule 13D filed with the SEC on May 1, 2003).
| ITEM 2. | IDENTITY AND BACKGROUND |
Item 2 is hereby amended to add the following information:
Appendix A attached hereto and incorporated herein by reference sets forth, with respect to each executive officer and director of MDS Capital and each executive officer and director of NCGP, QGP, MLII GP, SCGP and MDS Management the following information: (a) name; (b) residence or business address; (c) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (d) citizenship of such person.
None of the Reporting Persons or the individuals listed in Appendix A has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years preceding the date of this Amendment No. 1.
None of the Reporting Persons or the individuals listed in Appendix A has been party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding 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 during the last five years preceding the date of this Amendment No. 1.
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 14 of 21 Pages | ||
| ITEM 3. | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION |
Item 3 is hereby amended to add the following information:
On March 5 and 8, 2004, 133,400 shares of Common Stock were sold. The following dispositions of Common Stock occurred: Life NC disposed of 59,187 shares of Common Stock; Life Quebec disposed of 20,853 shares of Common Stock; MLII NC disposed of 26,680 shares of Common Stock; and SC Biotech disposed of 26,680 shares of Common Stock. As a result of such sales, the total aggregate beneficial ownership of the Reporting Persons was reduced by 133,400 shares of Common Stock.
| ITEM 5. | INTEREST IN SECURITIES OF THE ISSUER |
Item 5 is hereby amended and restated in its entirety:
(a) and (b) As a result of certain relationships, each of the Reporting Persons may be deemed to directly and/or indirectly beneficially own up to 2,181,412 shares of Common Stock and 810,186 shares of Common Stock underlying the Warrants which became exercisable on July 21, 2003, representing in the aggregate approximately 8.5% of the outstanding shares of Common Stock, based on the number of shares of Common Stock reported to be outstanding as of March 5, 2004, in the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, as filed with the SEC on March 15, 2004, together with the shares underlying the Purchaser’s Warrants exercisable on July 21, 2003. Michael Callaghan may be deemed to directly and/or indirectly beneficially own an additional 30,000 shares of Common Stock underlying stock options granted to him as a director of the Issuer (the “Options”). Each Reporting Person disclaims beneficial ownership of any Securities beneficially owned by any other Reporting Person.
Due to their relationship with one another and the voting covenant contained in the Purchase Agreement and certain other nominee voting commitments entered into by certain other shareholders identified in Item 6 of the Schedule 13D which were entered into as a condition to closing the purchase of Securities by the Purchasers described in Item 6 of the Schedule 13D, the Reporting Persons may be deemed to constitute a “group” under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Act”), with respect to their beneficial ownership of the shares of Common Stock and Warrants. The Reporting Persons, however, expressly disclaim such status and declare that the filings of this Amendment No. 1 and the Schedule 13D are not and should not be deemed admissions that any Reporting Person, for purposes of Section 13(d) of the Act or otherwise, is the beneficial owner of the shares of Common Stock or Warrants held by any other Reporting Person.
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 15 of 21 Pages | ||
If the Reporting Persons listed below are deemed to beneficially own the Securities of the other Reporting Persons, then:
| Reporting Persons |
Number of Shares |
Number of Shares With Shared Voting and |
Aggregate Number of |
Percentage of Class | ||||||
| Common Stock |
Underlying Warrants |
|||||||||
| Life NC |
0 | 2,181,412 | 810,186 | 2,991,598 | 8.5% | |||||
| Life Quebec |
0 | 2,181,412 | 810,186 | 2,991,598 | 8.5% | |||||
| MLII NC |
0 | 2,181,412 | 810,186 | 2,991,598 | 8.5% | |||||
| SC Biotech |
0 | 2,181,412 | 810,186 | 2,991,598 | 8.5% | |||||
| Michael Callaghan |
0 | 2,181,412 | 840,186 | 3,021,598 | 8.5% | |||||
| Other Reporting Persons |
0 | 2,181,412 | 810,186 | 2,991,598 | 8.5% | |||||
| (1) | Warrants are exercisable for five years commencing July 21, 2003 (90 days after their acquisition). |
| (c) | Other than as reported in this Amendment No. 1, none of the Reporting Persons has effected any transactions involving the Common Stock, the Warrants or the Options in the 60 days prior to filing this Amendment No. 1. |
| (d) | No other persons have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Securities. |
| (e) | Not applicable. |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 16 of 21 Pages | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this Amendment No. 1 is true, complete and correct.
Dated as of April 14, 2004.
| MDS Capital Corp. | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Chief Operating Officer and Secretary | Vice-President – Legal and Secretary | ||||||
| MDS Life Sciences Technology Fund II NC Limited Partnership | ||||||||
| By: MDS LSTF II (NCGP) Inc., its General Partner | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Vice-President and Director | Secretary | ||||||
| MDS Life Sciences Technology Fund II Quebec Limited Partnership | ||||||||
| By: MDS LSTF II (QGP) Inc., its General Partner | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Vice-President | Secretary | ||||||
| MLII Co-Investment Fund NC Limited Partnership | ||||||||
| By: MLII (NCGP) Inc., its General Partner | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Vice-President and Director | Secretary | ||||||
| SC Biotechnology Development Fund LP | ||||||||
| By: SC (GP) Inc., its General Partner | ||||||||
| By: | /s/ Alan Milgate |
/s/ William Walmsley | ||||||
| Name: |
Alan Milgate | William Walmsley | ||||||
| Title: |
Directors of Cardinal Investments Limited, Director of SC (GP) Inc. | |||||||
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 17 of 21 Pages | ||
| MDS LSTF II (NCGP) Inc. | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Vice-President and Director | Secretary | ||||||
| MDS LSTF II (QGP) Inc. | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Vice-President | Secretary | ||||||
| MLII (NCGP) Inc. | ||||||||
| By: | /s/ Gregory Gubitz |
/s/ Graysanne Bedell | ||||||
| Name: |
Gregory Gubitz | Graysanne Bedell | ||||||
| Title: |
Vice-President and Director | Secretary | ||||||
| SC (GP) Inc. | ||||||||
| By: | /s/ Alan Milgate |
/s/ William Walmsley | ||||||
| Name: |
Alan Milgate | William Walmsley | ||||||
| Title: |
Directors of Cardinal Investments Limited, Director of SC (GP) Inc. | |||||||
| MDS Capital Management Corp. | ||||||||
| By: | /s/ Michael Callaghan |
/s/ Richard Lockie | ||||||
| Name: |
Michael Callaghan | Richard Lockie | ||||||
| Title: |
Vice-President | Vice-President | ||||||
| /S/ MICHAEL CALLAGHAN |
||||||||
| Michael Callaghan | ||||||||
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 18 of 21 Pages | ||
APPENDIX A
MDS Capital Corp.: Sole Shareholder of the General Partners of the Purchasers
Unless otherwise noted below, each of the listed individuals is a citizen of Canada and has as his/her business address 100 International Boulevard, Toronto, Ontario M9W 6J6. Unless otherwise noted, each of the listed persons’ position with MDS Capital is also his/her principal occupation.
| NAME/PLACE of CITIZENSHIP |
POSITION with MDS CAPITAL |
PRINCIPAL OCCUPATION |
PRINCIPAL BUSINESS ADDRESS | |||
| Edward Rygiel |
Director/Executive Chairman | Executive Vice-President of MDS Inc. | ||||
| Michael Burns |
Director | Chairman, The Sentinel Group | 1450 Creekside Drive, Suite 100 Vancouver, B.C. V6J5B3 | |||
| Peter de Auer |
Director | President, Cluster Asset Management Inc. | 130 Bloor Street West, Suite 600 Toronto, Ontario M5S 1N5 | |||
| James Garner |
Director | Executive Vice-President & Chief Financial Officer, MDS Inc. | ||||
| Richard Johnston |
Director | Independent Consultant | 1325 Winterberry Drive Burlington, Ontario L7P 4S7 | |||
| James Osborne |
Director | President, Westgate Capital Corp. | 167 Lombard Ave., Suite 808 Winnipeg, Manitoba R3B 0V3 | |||
| Michael Muller |
Director, President/ Chief Executive Officer | |||||
| Anthony Pullen |
Director | Managing Director, Loewen, Ondaajtje, McCutcheon Limited | 55 Avenue Road, Suite 2250 Toronto, Ontario M5R 3L2 | |||
| Michael Callaghan |
Sr. Vice-President | |||||
| Darrell Elliot |
Sr. Vice-President | |||||
| Gregory Gubitz |
Chief Operating Officer | |||||
| Richard Lockie |
Sr. Vice-President | |||||
| Jean-Christophe Renondin – France |
Sr. Vice-President | 2000 Peel St., Suite 506 Montreal, Quebec H3A 2W5 | ||||
| Brian Underdown |
Sr. Vice-President | |||||
| Robert Allan |
Vice-President | |||||
| Graysanne Bedell |
Vice-President Legal & Secretary | |||||
| Denise Arsenault |
Vice-President Finance | |||||
| Gerald Brunk – United States |
Vice-President | 245 First St., Suite 1800 Cambridge, MA 02142 | ||||
| Anthony Flynn |
Vice-President, Retail Funds | |||||
| Jason Gross – United States |
Vice-President | |||||
| Vincent Lum |
Vice-President | 1095 W. Pender St. Suite 1120 Vancouver, B.C. V6E 2M6 | ||||
| Amit Monga |
Vice-President | |||||
| Benjamin Rovinski |
Vice-President | |||||
| Anthony Natale – United States |
Vice-President | 245 First St., Suite 1800 Cambridge, MA 02142 | ||||
| Nandini Tandon – India |
Vice-President | 187 Easy Street Mountain View, CA 94043 | ||||
| Hakan Telenius |
Vice-President | 1095 W. Pender St., Suite 1120 Vancouver, B.C. V6E 2M6 |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 19 of 21 Pages | ||
MDS Capital Management Corp.: Manager of Life NC
Unless otherwise noted below, each of the listed persons is a citizen of Canada and has as his/her business address 100 International Boulevard, Toronto, Ontario M9W 6J6.
| NAME |
POSITION with MDS Management |
PRINCIPAL OCCUPATION | ||
| Michael Mueller |
Director, President & Chief Executive Officer | President & Chief Executive Officer of MDS Capital | ||
| Denise Arsenault |
Vice-President, Finance | Vice-President – Finance of MDS Capital | ||
| Graysanne Bedell |
Vice-President, Legal, & Secretary | Vice-President, Legal, & Secretary of MDS Capital | ||
| Gregory Gubitz |
Director & Chief Operating Officer | Chief Operating Officer of MDS Capital | ||
| Michael Callaghan |
Sr. Vice President/ Authorized Trading Officer | Sr. Vice-President of MDS Capital | ||
| Darrell Elliott |
Sr. Vice-President | Sr. Vice-President of MDS Capital | ||
| Jean-Christophe Renondin |
Sr. Vice-President | Sr. Vice-President of MDS Capital | ||
| Richard Lockie |
Sr. Vice President/Authorized Trading Officer | Sr. Vice-President of MDS Capital |
MDS LSTF II (NCGP) Inc.: General Partner of Life NC
Unless otherwise noted below, each of the listed persons is a citizen of Canada and has as his/her business address 100 International Boulevard, Toronto, Ontario M9W 6J6.
| NAME/ PLACE of CITIZENSHIP |
POSITION with MDS LSTF II (NCGP) |
PRINCIPAL OCCUPATION |
PRINCIPAL BUSINESS ADDRESS | |||
| Michael Mueller |
Director/President | President & Chief Executive Officer of MDS Capital | ||||
| Gregory Gubitz |
Director/Vice-President | Sr. Vice-President of MDS Capital | ||||
| Graysanne Bedell |
Secretary | Vice-President – Legal of MDS Capital | ||||
| Michael Callaghan |
Vice-President | Sr. Vice-President of MDS Capital | ||||
| Darrell Elliot |
Vice-President | Sr. Vice-President of MDS Capital | ||||
| Richard Lockie |
Vice-President | Sr. Vice-President of MDS Capital | ||||
| Jean-Christophe Renondin – France |
Vice-President | Sr. Vice-President of MDS Capital | 2000 Peel St., Suite 560 Montreal, Quebec H3A 2W5 |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 20 of 21 Pages | ||
MDS LSTF II (QGP) Inc.: General Partner of Life Quebec
Unless otherwise noted below, each of the listed persons is a citizen of Canada and has as his/her business address 2000 Peel St., Suite 560, Montreal, Quebec H3A 2W5.
| NAME/ PLACE of CITIZENSHIP |
POSITION with MDS LSTF II (NCGP) |
PRINCIPAL OCCUPATION |
PRINCIPAL BUSINESS ADDRESS | |||
| Michael Mueller |
Director/President & Chief Executive Officer | President & Chief Executive Officer of MDS Capital | 100 International Boulevard Toronto, Ontario M9W 6J6 | |||
| Bernard Coupal |
Director | President, Societe en Commandite T2C2/BIO | 1550 Metcalf St., Suite 502 Montreal, Quebec H3A 1X6 | |||
| Maurice Forget |
Director | Partner, Fasken Martineau DuMoulin LLP | 800 Place Victoria, Montreal, Quebec H3B 4S9 | |||
| Murray Ducharme |
Director | Vice-President, Pharmacokinetis & Pharmacodynamics, MDS Pharma Services Division, MDS (Canada) Inc. | 2350 Cohen St-Laurent, Quebec H4R 2T6 | |||
| Jean Page |
Director | Managing Director, National Bank Financial Inc. | 1155 Metcalfe St. 5th Floor Montreal, Quebec H3B 4S9 | |||
| Graysanne Bedell |
Secretary | Vice-President – Legal and Secretary of MDS Capital | 100 International Boulevard Toronto, Ontario M9W 6J6 | |||
| Gregory Gubitz |
Vice-President | Chief Operating Officer of MDS Capital | 100 International Boulevard Toronto, Ontario M9W 6J6 | |||
| Jean-Christophe Renondin – France |
Vice-President | Sr. Vice-President of MDS Capital |
MLII (NCGP) Inc: General Partner of MLII NC
Unless otherwise noted below, each of the listed persons is a citizen of Canada and has as his/her business address 100 International Boulevard, Toronto, Ontario M9W 6J6.
| NAME/PLACE of CITIZENSHIP |
POSITION with MLII (NCGP) |
PRINCIPAL OCCUPATION |
PRINCIPAL BUSINESS ADDRESS | |||
| Michael Mueller |
Director/President | President & Chief Executive Officer of MDS Capital | ||||
| Gregory Gubitz |
Director/Vice-President | Chief Operating Officer of MDS Capital | ||||
| Graysanne Bedell |
Secretary | Vice-President – Legal and Secretary of MDS Capital | ||||
| Michael Callaghan |
Vice-President | Sr. Vice-President of MDS Capital | ||||
| Darrell Elliott |
Vice-President | Sr. Vice-President of MDS Capital | 1095 W. Pender St., Suite 1120 Vancouver, B.C. V6E 2M6 | |||
| Richard Lockie |
Vice-President | Sr. Vice-President of MDS Capital | ||||
| Jean-Christophe Renondin – France |
Vice-President | Sr. Vice-President of MDS Capital | 2000 Peel St., Suite 560 Montreal, Quebec H3A 2W6 |
| CUSIP No. 249908 10 4 | Amendment No. 1 to Schedule 13D | Page 21 of 21 Pages | ||
SC (GP) Inc.: General Partner of SC Biotech
Unless otherwise noted below, each of the listed persons is a citizen of Canada and has as his/her business address One Capital Place, P.O. Box 897, GT Grand Cayman, Cayman Islands.
| NAME |
POSITION with SC (GP) |
PRINCIPAL OCCUPATION | ||
| Cardinal Investments Limited |
Director | N/A | ||
| Woodbourne Associates (Cayman) Limited |
Secretary | N/A |
Cardinal Investments Limited: Sole Director of SC (GP) Inc.
Unless otherwise noted below, each of the listed persons’ principal occupation is a Chartered Accountant and has as his/her business address P.O. Box 1787 GT, Grand Cayman, Cayman Islands, except Woodburne Associates which has as a principal business address P.O. Box 897, GT Grand Cayman, Cayman Islands.
| NAME |
PLACE of CITIZENSHIP |
POSITION with Cardinal Investments |
PRINCIPAL OCCUPATION | |||
| Alan Milgate |
Canada | Director | ||||
| Alison Hill |
Britain | Director | Chartered Secretary | |||
| Charlette Clarke |
Cayman Islands | Director | ||||
| Patricia Trotter |
Cayman Islands | Director | ||||
| Glen Wigney |
Canada | Director | ||||
| Ian Wight |
Britain/Cayman Islands | Director | ||||
| Michael Pilling |
Britain | Director | ||||
| Peter Anderson |
Britain | Director | ||||
| Richard Douglas |
Britain/Cayman Islands | Director | ||||
| Tamara Corbin |
Cayman Islands | Director | ||||
| William Walmsley |
Britain/Cayman Islands | Director | ||||
| Woodbourne Associates (Cayman) Limited |
Cayman Company | Secretary | Nominee Company |
Woodbourne Associates (Cayman) Limited: Sole Officer of SC (GP), Inc.
Unless otherwise noted below, each of the listed persons’ principal occupation is a chartered accountant and has as his/her business address P.O. Box 1787 GT, Grand Cayman, Cayman Islands.
| NAME |
PLACE of CITIZENSHIP |
POSITION with Cardinal Investments |
PRINCIPAL OCCUPATION | |||
| Alan Milgate |
Canada | Director | ||||
| Alison Hill |
Britain | Director | Chartered Secretary | |||
| Charlette Clarke |
Cayman Islands | Director | ||||
| Patricia Trotter |
Cayman Islands | Director | ||||
| Glen Wigney |
Canada | Director | ||||
| Ian Wight |
Britain/Cayman Islands | Director/Secretary | ||||
| Michael Pilling |
Britain | Director | ||||
| Peter Anderson |
Britain | Director | ||||
| Richard Douglas |
Britain/Cayman Islands | Director | ||||
| Tamara Corbin |
Cayman Islands | Director | ||||
| William Walmsley |
Britain | Director | ||||
| Anne Mervyn |
Canada | Director/Assistant Secretary | Executive Secretary |