UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________
SCHEDULE 13D/A
(Amendment No. 1)
Under the Securities Exchange Act of 1934
DepoMed, Inc.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
249908-10-4
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(CUSIP Number)
Biovail Laboratories Incorporated
Chelston Park, Building 2
Collymore Rock
St. Michael, Barbados, West Indies
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Attention: President
Tel: (246) 437-7080
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with a copy to:
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Roger Andrus, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
(212) 701-3000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
April 21, 2003
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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 ss.ss. 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 ss. 240.13d-7 for other
parties to whom copies are to be sent.
CUSIP No. 249908-10-4
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1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF
ABOVE PERSONS (entities only)
Biovail Laboratories Incorporated
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions)
(a) [ ] (b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Barbados, West Indies
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7 SOLE VOTING POWER
Number of 6,573,110*
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Shares 8 SHARED VOTING POWER
Beneficially Owned
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by Each 9 SOLE DISPOSITIVE POWER
Reporting
Person With 6,573,110*
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10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
6,573,110*
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions)
[X]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.3%*
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14 TYPE OF REPORTING PERSON (See Instructions)
CO
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2
* Determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and based on the number of outstanding
shares of common stock, no par value ("Common Stock") of DepoMed, Inc.
("DepoMed") on March 14, 2003 (as reported in the Form 10-K of DepoMed for the
fiscal year ended December 31, 2002) and after giving effect to the issuance of
additional securities pursuant to the DepoMed, Inc. Securities Purchase
Agreement (filed as Exhibit 2 hereto). The information set forth in line items
7, 9, 11 and 13 includes 4,092,032 shares of Common Stock currently held by the
Reporting Person and shares of Common Stock issuable upon the exercise of an
option (the "Biovail Option") to acquire 821,959 shares of Common Stock and an
option (the "Purchaser's Option") to acquire Common Stock up to the amount
sufficient for the Reporting Person to have purchased or acquired pursuant to
the purchase agreement granting such option 20% of DepoMed's then issued and
outstanding Common Stock. The Biovail Option is exercisable until July 9, 2003
and the Purchaser's Option is exercisable until July 9, 2005. Additional terms
of the Biovail Option and the Purchaser's Option are described in the Schedule
13D originally filed with the Securities and Exchange Commission by the
Reporting Person with respect to the Common Stock. The information set forth in
such line items does not include shares of Common Stock issuable upon exercise
of the Warrant (defined in Item 3 herein), which becomes exercisable on July 21,
2003. If the shares currently held by the Reporting Person and the shares
issuable upon the exercise of the Biovail Option, the Purchaser's Option and the
Warrant were all included in the calculation of beneficial ownership, the
Reporting Person would have been the beneficial owner of 7,142,264 shares of
common stock, or 24.8% of the issued and outstanding shares. As described in
Item 3 herein, the Reporting Person and certain other parties have severally,
but not jointly, covenanted with DepoMed to vote all shares of voting stock of
DepoMed owned or controlled by each such party in favor of two persons to be
nominated by certain Purchasers to serve as members of the board of directors of
DepoMed, provided certain conditions are met (the "Voting Commitments"). As of
the date hereof, sufficient information is not publicly available in order to
determine the number of shares of Common Stock of DepoMed beneficially owned
collectively by the Reporting Person and all such other parties which are
subject to a Voting Commitment. As a result of the Voting Commitments, the
Reporting Person and the other parties subject to Voting Commitments may be
deemed to constitute a "group" for the purposes of Section 13(d) of the Exchange
Act. The Reporting Person expressly disclaims that it is a member of a "group"
with respect to such securities. The filing of this Amendment No. 1 to Schedule
13D shall not be construed as an admission that the Reporting Person is, for
purposes of Sections 13(d) of the Exchange Act or otherwise, the beneficial
owner of any securities of DepoMed other than the 6,573,110 shares identified
above and the Reporting Person expressly disclaims any beneficial ownership of
any securities of DepoMed other than the 6,573,110 shares identified above.
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CUSIP No. 249908-10-4
This Amendment No. 1 ("Amendment No. 1") amends the Schedule 13D (the "Schedule
13D") previously filed with the Securities and Exchange Commission by Biovail
Laboratories Incorporated ("Biovail Laboratories" or the "Reporting Person")
with respect to common stock, no par value, of DepoMed, Inc., a California
corporation ("DepoMed" or the "Company"). Unless otherwise indicated herein, all
items in the Schedule 13D not amended hereby remain in full force and effect.
Capitalized terms used but not otherwise defined herein shall have the meanings
heretofore ascribed to such terms in the Schedule 13D.
Item 1. Security of the Issuer.
No change.
Item 2. Identity and Background.
With respect to the transactions described in this Amendment No. 1, the
following hereby amends and restates the fourth and fifth paragraphs (including
Appendix A therein referenced) of Item 2:
Appendix A attached hereto and incorporated herein by reference sets forth, with
respect to each executive officer and director of Biovail Laboratories and each
executive officer and director of Biovail Corporation, 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.
Biovail Laboratories has not and, to the best of Biovail Laboratories'
knowledge, neither Biovail Corporation nor any of the persons listed on Appendix
A hereto has, during the five years preceding the date of the transactions
described in this Amendment No. 1 (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) been a party to a
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.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended by the addition of the following:
On April 21, 2003, Biovail Laboratories acquired 1,626,154 shares of Common
Stock pursuant to a Stock Purchase Agreement, dated April 21, 2003, by and among
DepoMed, Biovail Laboratories and the purchasers identified on Appendix B
attached hereto and incorporated herein by reference (the "Additional
Purchasers," and together with Biovail Laboratories, the "Purchasers"). The per
share purchase price was US$2.16, for an aggregate purchase price paid by
Biovail Laboratories of US$3,512,492.64. The funds necessary to purchase the
Common Stock were obtained from working capital of Biovail Laboratories.
In connection therewith, Biovail Laboratories was also granted a warrant (the
"Warrant") to purchase up to 569,154 shares of Common Stock at an exercise price
of US$2.16 per share, subject to customary anti-dilution provisions. This
warrant may be exercised between July 21, 2003 and April 21, 2008.
4
CUSIP No. 249908-10-4
In connection therewith, each of the Purchasers and each of the other parties
identified on Appendix C attached hereto and incorporated herein by reference
(the "Committed Voters") has severally, but not jointly, covenanted with the
Company to vote all shares voting stock of DepoMed owned or controlled by such
Purchaser or Committed Voter in favor of two persons to be nominated by certain
Purchasers to serve as members of the board of directors of DepoMed, provided
certain conditions are met (the "Voting Commitments"). As of the date hereof,
sufficient information is not publicly available in order to determine the
number of shares of Common Stock of DepoMed beneficially owned collectively by
Biovail Laboratories, the Additional Purchasers and the Committed Voters. As a
result of the Voting Commitments, Biovail Laboratories, the Additional
Purchasers and the Committed Voters may be deemed to constitute a "group" for
the purposes of Section 13(d) of the Exchange Act. Biovail Laboratories
expressly disclaims that it is a member of a "group" with respect to such
securities. The filing of this Amendment No. 1 to Schedule 13D shall not be
construed as an admission that Biovail Laboratories is, for purposes of Sections
13(d) of the Exchange Act or otherwise, the beneficial owner of any securities
of DepoMed other than the 6,573,110 shares identified in Item 5 below and
Biovail Laboratories expressly disclaims any beneficial ownership of any
securities of DepoMed other than the 6,573,110 shares identified in Item 5
below.
Item 4. Purpose of Transaction.
No change.
Item 5. Interest in Securities of Issuer.
Item 5(a) is hereby amended and restated by the following:
Based on public filings of DepoMed, Biovail Laboratories believes that it is the
beneficial owner of 6,573,110 shares of Common Stock or 23.3% of the issued and
outstanding shares of Common Stock (determined in accordance with Rule 13d-3
under the Exchange Act and based on the number of outstanding shares of Common
Stock of DepoMed on March 14, 2003, as reported in the Form 10-K of DepoMed for
the fiscal year ended December 31, 2002 and after giving effect to the issuance
of additional securities pursuant to the DepoMed, Inc. Securities Purchase
Agreement (filed as Exhibit 2 hereto)). This number of shares and percentage of
shares outstanding includes 4,092,032 shares of Common Stock currently held by
Biovail Laboratories and shares of Common Stock issuable upon the exercise of an
option granted to Biovail Laboratories (the "Biovail Option") to acquire 821,959
shares of Common Stock and an option granted to Biovail Laboratories (the
"Purchaser's Option") to acquire Common Stock up to the amount sufficient for
Biovail Laboratories to have purchased or acquired pursuant to the purchase
agreement granting such option 20% of DepoMed's then issued and outstanding
Common Stock. The Biovail Option is exercisable until July 9, 2003 and the
Purchaser's Option is exercisable until July 9, 2005. Additional terms of the
Biovail Option and the Purchaser's Option are described in the Schedule 13D
originally filed with the Securities and Exchange Commission by Biovail
Laboratories with respect to the Common Stock. This number of shares and
percentage of shares outstanding does not include shares of Common Stock
issuable upon exercise of the Warrant, which becomes exercisable on July 21,
2003. If the shares currently held by Biovail Laboratories and the shares
issuable upon the exercise of the Biovail Option, the Purchaser's Option and the
Warrant were all included in the calculation of beneficial ownership, Biovail
Laboratories would have been the beneficial owner of 7,142,264 shares of Common
Stock, or 24.8% of the issued and outstanding shares.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
No change.
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CUSIP No. 249908-10-4
Item 7. Material to Be Filed as Exhibits.
Item 7 is hereby amended by the addition of the following:
Exhibit 2 DepoMed, Inc. Securities Purchase Agreement, dated as of
April 21, 2003. Incorporated herein by reference to Exhibit
10.1 of the Current Report on Form 8-K, as filed with the SEC
on April 25, 2003.
Exhibit 3 Form of Warrant (Exhibit B to the DepoMed, Inc. Securities
Purchaser Agreement, dated as of April 21, 2003). Incorporated
herein by reference to Exhibit 10.2 of the Current Report on
Form 8-K, as filed with the SEC on April 25, 2003.
Exhibit 5 Form of Nominee Voting Commitment (Exhibit G to the DepoMed,
Inc. Securities Purchaser Agreement, dated as of April 21,
2003). Incorporated herein by reference to Exhibit 10.4 of the
Current Report on Form 8-K, as filed with the SEC on April 25,
2003.
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CUSIP No. 249908-10-4
Signature
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: May 1, 2003.
By: /s/ John A.R. McCleery
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Name: John A.R. McCleery
Title: Vice President and General Manager, Biovail
Laboratories Incorporated
CUSIP No. 249908-10-4
APPENDIX A
The tables below set forth with respect to each executive officer and director
of Biovail Laboratories and each executive officer and director of Biovail
Corporation, 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.
Executive Officers and Directors of Biovail Laboratories Incorporated:
(a) Eugene N. Melnyk
(b) Chelston Park, Building 2, Ground Floor, Collymore Rock, St. Michael,
Barbados, West Indies (c) Director and President, Biovail Laboratories
Incorporated; Chairman of the Board, Chief Executive Officer and Director,
Biovail Corporation (d) Canada
(a) Larry Davis
(b) St. James House, Second Street, Holetown, St. James, Barbados, West Indies
(c) Director, Biovail Laboratories Incorporated; President, Mark Anthony
International SRL (d) Canada
(a) Arlene Fong
(b) Chelston Park, Building 2, Ground Floor, Collymore Rock, St. Michael,
Barbados, West Indies (c) Director and Controller, Biovail Laboratories
Incorporated (d) Canada
(a) John A. R. McCleery
(b) Chelston Park, Building 2, Ground Floor, Collymore Rock, St. Michael,
Barbados, West Indies (c) Vice President and General Manager, Biovail
Laboratories Incorporated (d) United States of America and Canada
Executive Officers and Directors of Biovail Corporation:
(a) Eugene N. Melnyk
(b) Chelston Park, Building 2, Ground Floor, Collymore Rock, St. Michael,
Barbados, West Indies (c) Director and President, Biovail Laboratories
Incorporated; Chairman of the Board, Chief Executive Officer and Director,
Biovail Corporation (d) Canada
(a) Wilfred Bristow
(b) Main Level, 35 Crawford Cres., Unit 9, Campbellville, Ontario L0P 1B0 Canada
CUSIP No. 249908-10-4
(c) Director, Biovail Corporation; Senior Vice President, Bank of Montreal
Nesbitt Burns Inc. (d) Canada
(a) Kenneth C. Cancellara
(b) 7150 Mississauga Road, Mississauga, Ontario L5N 8M5 Canada
(c) Senior Vice President, Chief Legal Officer, Corporate Secretary and ex
officio Board Member, Biovail Corporation (d) Canada
(a) Paul W. Haddy
(b) Life of Barbados Building, Wildey, St. Michael, Barbados, West Indies
(c) Director, Biovail Corporation; Chairman and Chief Executive Officer, London
Life Bank & Trust Corporation (d) Canada
(a) Laurence E. Paul
(b) 1620 26th Street, Santa Monica, California 90404 USA (c) Director, Biovail
Corporation; Managing Director, Laurel Crown Ventures (d) United States of
America
(a) Sheldon Plener
(b) Suite 2100, Scotia Plaza, 40 King Street West, Toronto, Ontario M5H 3C2
Canada (c) Director, Biovail Corporation; Senior Partner, Cassels Brock &
Blackwell LLP (d) Canada
(a) Rolf K. Reininghaus
(b) 7150 Mississauga Road, Mississauga, Ontario L5N 8M5 Canada
(c) Senior Vice President of Corporate & Strategic Development and Director,
Biovail Corporation (d) Canada
(a) Roger Rowan
(b) 55 University Avenue, Suite 610, P.O. Box 47, Toronto, Ontario M5J 2H7
Canada (c) Director, Biovail Corporation; President and Chief Operating Officer,
Watt Carmichael Inc. (d) Canada
(a) William S. Poole
(b) 7150 Mississauga Road, Mississauga, Ontario L5N 8M5 Canada (c) President,
North American Pharmaceuticals (d) United States of America
CUSIP No. 249908-10-4
(a) Brian Crombie
(b) 7150 Mississauga Road, Mississauga, Ontario L5N 8M5 Canada (c) Senior Vice
President and Chief Financial Officer, Biovail Corporation (d) Canada
(a) Gregory J. Szpunar, Ph.D.
(b) Senior Vice President, Research and Development and Chief Scientific
Officer, Biovail Corporation (c) 3701 Concorde Parkway, Suite 800, Chantilly,
Virginia 20151 (d) United States of America
CUSIP No. 249908-10-4
APPENDIX B
ADDITIONAL PURCHASERS
Each Additional Purchaser is identified below. Biovail Laboratories expressly
disclaims beneficial ownership of all securities held by any Additional
Purchaser.
Donald G. Drapkin
Easton Hunt Capital Partners, L.P.
H&Q Healthcare Investors
H&Q Life Sciences Investors
HBM BioVentures (Cayman) Ltd.
MDS Life Sciences Technology Fund II NC Limited Partnership
MDS Life Sciences Technology Fund II Quebec Limited Partnership
MLII Co-Investment Fund NC Limited Partnership
Quogue Capital, LLC
SC Biotechnology Development Fund LP
Special Situations Cayman Fund, L.P.
Special Situations Fund III, L.P.
Special Situations Private Equity Fund, L.P.
CUSIP No. 249908-10-4
APPENDIX C
COMMITTED VOTERS
Each Committed Voter is identified below. Biovail Laboratories expressly
disclaims beneficial ownership of all securities held by any Committed Voter.
John N. Shell
John W. Shell
Orbimed Capital Advisors LLC