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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13G
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
TheraTech, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
883383101
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(CUSIP Number)
*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 the
disclosures provided in a prior cover page.
The information required in 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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CUSIP NO. 883383101 SCHEDULE 13G Page 2 of 4 Pages
--------------------- ----- -----
(1) NAMES OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dinesh C. Patel
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
Not applicable (b) [ ]
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(3) SEC USE ONLY
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(4) CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
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(5) SOLE VOTING POWER
NUMBER OF 0
SHARES --------------------------------------------------------
BENEFICIALLY (6) SHARED VOTING POWER
OWNED BY 2,897,428
EACH --------------------------------------------------------
REPORTING (7) SOLE DISPOSITIVE POWER
PERSON WITH 0
--------------------------------------------------------
(8) SHARED DISPOSITIVE POWER
2,897,428
--------------------------------------------------------
(9) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,897,428
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(10) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN
SHARES* [ ]
Not applicable
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(11) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
13.3%
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(12) TYPE OF REPORTING PERSON*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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ITEM 1. ISSUER
(a) NAME OF ISSUER: TheraTech, Inc.
(b) ADDRESS OF ISSUER'S PRINCIPLE EXECUTIVE OFFICES: 417 Wakara Way
Salt Lake City, Utah 84108
ITEM 2. REPORTING PERSON INFORMATION
(a) NAME OF PERSON FILING: Dinesh C. Patel
(b) ADDRESS OF PRINCIPAL BUSINESS OFFICE:
417 Wakara Way
Salt Lake City, Utah 84108
(c) CITIZENSHIP:
United States of America
(d) TITLE OF CLASS OF SECURITIES:
Common Stock
(e) CUSIP NUMBER:
883383101
ITEM 3. IF THIS STATEMENT IS FILED PURSUANT TO RULES 13d-1(b), OR 13d-2(b),
CHECK WHETHER THE PERSON FILING IS A
Not applicable
ITEM 4. OWNERSHIP
(a) AMOUNT BENEFICIALLY OWNED:
2,897,428
(b) PERCENT OF CLASS:
13.3%
(c) NUMBER OF SHARES AS TO WHICH SUCH PERSON HAS:
(i) SOLE POWER TO VOTE OR TO DIRECT THE VOTE:
0
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(ii) SHARED POWER TO VOTE OR TO DIRECT THE VOTE:
2,897,428 (which includes presently exercisable
options to purchase 187,001 shares, 75,000 shares
owned by Kalpana Patel (spouse) and 77,000 shares
owned by the Dinesh and Kalpana Patel Foundation, of
which the Reporting Person is a director). As an
inducement to Watson Pharmaceuticals, Inc., a Nevada
corporation ("Watson"), to enter into an Agreement
and Plan of Merger dated October 23, 1998 (the
"Merger Agreement"), among Watson, Jazz Merger
Corp., a Delaware corporation and wholly-owned
subsidiary of Watson ("Watson Sub") and TheraTech,
Inc., a Delaware Corporation (the "Issuer"), whereby
Watson Sub will be merged with and into the Issuer
(the "Merger"), the Reporting Person became a party
to a certain voting agreement dated as of October
23, 1998 with Watson (the "Voting Agreement"). By
executing the Voting Agreement, the Reporting Person
has irrevocably appointed Watson (or any nominee of
Watson) as his lawful attorney and proxy. Such proxy
gives Watson the limited right to vote each of the
shares of common stock of the Issuer beneficially
owned by the Reporting Person to approve the Merger
and Merger Agreement. The Voting Agreement
terminates upon the earlier to occur of (i) such
date and time as the Merger shall become effective
in accordance with the terms and provisions of the
Merger Agreement, and (ii) the date of termination
of the Merger Agreement. The foregoing summary of
the Voting Agreement is qualified in its entirety by
reference to the copy of the form of Voting
Agreement included as Exhibit A to this Schedule 13G
and incorporated herein in its entirety by
reference.
(iii) SOLE POWER TO DISPOSE OR TO DIRECT THE DISPOSITION
OF:
0
(iv) SHARED POWER TO DISPOSE OR TO DIRECT THE DISPOSITION
OF:
2,897,428 (which includes presently exercisable
options to purchase 187,001 shares, 75,000 shares
owned by Kalpana Patel (spouse) and 77,000 shares
owned by the Dinesh and Kalpana Patel Foundation, of
which the Reporting Person is a director). The
voting agreement prohibits the reporting person from
making dispositions of shares without Watson's prior
consent.
ITEM 5. OWNERSHIP OF FIVE PERCENT OR LESS OF A CLASS
Not applicable
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ITEM 6. OWNERSHIP OF MORE THAN FIVE PERCENT ON BEHALF OF ANOTHER PERSON
Not applicable
ITEM 7. IDENTIFICATION AND CLASSIFICATION OF THE SUBSIDIARY WHICH ACQUIRED THE
SECURITY BEING REPORTED ON BY THE PARENT HOLDING COMPANY
Not applicable
ITEM 8. IDENTIFICATION AND CLASSIFICATION OF MEMBERS OF THE GROUP
Not applicable
ITEM 9. NOTICE OF DISSOLUTION OF GROUP
Not applicable
ITEM 10. CERTIFICATION
Not applicable
SIGNATURE
After reasonably inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: November 9, 1998
s/Dinesh C. Patel
------------------------------
Dinesh C. Patel
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EXHIBIT A
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 23, 1998, between Watson
Pharmaceuticals, Inc., a Nevada corporation ("Parent"), and Dinesh C. Patel,
Ph.D. (the "Stockholder").
WHEREAS, Parent and Theratech, Inc., a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger, dated the
date hereof (as the same may be amended or supplemented, the "Merger Agreement")
providing for the merger of Jazz Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Subsidiary"), with the Company (the
"Merger");
WHEREAS, Stockholder is the record and beneficial owner of 2,687,926*
shares of common stock, par value $.01 per share, of the Company (the "Company
Common Stock"); such securities, as they may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with securities that may be acquired after the date hereof by
Stockholder, including Company Common Stock issuable upon the exercise of
options to purchase Company Common Stock (as the same may be adjusted as
aforesaid), being collectively referred to herein as the "Securities"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Subsidiary have requested that the Stockholder enter into
this Agreement. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, to induce Parent and Subsidiary to enter into, and in
consideration of them entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein and intending to be legally bound hereby, the parties hereby agree as
follows:
1. Covenants of the Stockholder. Stockholder agrees as follows:
(a) Stockholder shall not, except as contemplated by the terms of
this Agreement, (i) sell, transfer, pledge, assign or otherwise
dispose of, or enter into any agreement, option or other
arrangement (including any profit sharing arrangement) or
understanding with respect to the sale, transfer, pledge,
assignment or other disposition of, the Securities to any person
other than Parent or Parent's designee; (ii) enter into any
voting arrangement, whether by proxy, voting agreement, voting
trust, power-of-attorney or otherwise, with respect to the
Securities or (iii) take any other action that would in any way
restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby;
* A portion of these shares are pledged to secure borrowings by Dr. Patel. Dr.
Patel has retained voting rights on the pledged shares. In addition, Dr. Patel
holds options to purchase 175,002 shares.
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provided, however, that any Stockholder that is an individual may
transfer all or part of his or her Securities to any sibling or
any other member of his or her immediate family, any of his or
her lineal descendants or any trust for the benefit of any of
them, if the recipient of the Securities agrees in advance in
writing delivered to Parent to be bound by this Agreement.
(b) Subject to Section 9 hereof, except as specifically provided in
the Merger Agreement, until the Merger is consummated or the
Merger Agreement is terminated, the Stockholder shall not, nor
shall the Stockholder permit any investment banker, financial
adviser, attorney, accountant or other representative or agent
acting on behalf of or at the direction of the Stockholder (a
"Stockholder Representative") to, directly or indirectly (i)
solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed or reasonably
likely to facilitate, any inquiries or the making of any proposal
which constitutes, or may reasonably be expected to lead to, any
Alternative Proposal (as defined in the Merger Agreement) or (ii)
participate in any discussions or negotiations regarding any
Alternative Proposal. Without limiting the foregoing, it is
understood that any violation of the restrictions as set forth in
the preceding sentence by a Stockholder Representative shall be
deemed to be a violation of this Section 1(b) by the Stockholder.
(c) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other
approval (including by written consent) with respect to the
Merger and the Merger Agreement is sought from the stockholders
of the Company, the Stockholder shall vote (or cause to be voted)
Stockholder's Securities in favor of approving the Merger, the
adoption of the Merger Agreement and the approval of the other
transactions contemplated by the Merger Agreement and the calling
of a special meeting of the stockholders of the Company to
consider any of the foregoing. At any meeting of stockholders of
the Company or at any adjournment thereof or in any other
circumstances upon which the Stockholder's vote, consent or other
approval is sought, Stockholder shall vote (or cause to be voted)
Stockholder's Securities against (i) any Alternative proposal, or
(ii) any amendment of the Company's Certificate of Incorporation
or by-laws or other proposal or transaction involving the Company
or any of its subsidiaries or any motion at a meeting of
stockholders of the Company, which amendment or other proposal or
transaction or motion would in any manner impede, frustrate,
prevent or nullify, the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement
(collectively "Frustrating Transactions").
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2. Grant of Irrevocable Proxy Coupled with an Interest: Appointment of
Proxy
(a) Stockholder hereby irrevocably grants to, and appoints, any
individual who shall be designated by Parent, and each of them,
Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
Stockholder, to vote Stockholder's Securities, or grant a consent
or approval in respect of such Securities, at any meeting of
stockholders of the Company or at any adjournment thereof or in
any other circumstances upon which their vote, consent or other
approval is sought, (i) in favor of the Merger, the adoption by
the Company of the Merger Agreement and the approval of the other
transactions contemplated by the Merger Agreement and the calling
of a special meeting of the stockholders of the Company to
consider any of the foregoing, and (ii) against any Alternative
Proposal or Frustrating Transaction.
(b) Stockholder represents that any proxies heretofore given in
respect of Stockholder's Securities are not irrevocable, and that
any such proxies are hereby revoked.
(c) STOCKHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS
SECTION 2 IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL
THE TIME SET FORTH IN THE LAST SENTENCE OF THIS SECTION.
Stockholder hereby further affirms that such irrevocable proxy is
given in connection with the execution of the Merger Agreement,
and that such irrevocable proxy is given to secure the
performance of the duties of Stockholder under this Agreement.
Stockholder hereby ratifies and confirms all that the individual
voting such irrevocable proxy may lawfully do or cause to be done
by virtue hereof. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with the provisions of Section
212 of the Delaware General Corporate Law ("DGCL"). Such
irrevocable proxy shall be valid until the earlier to occur of
(i) one year from the date hereof or (ii) the termination of this
Agreement in accordance with its terms.
3. Representations and Warranties of the Stockholder. Stockholder hereby
represents and warrants to Parent as follows:
(a) Authorization. The Stockholder has the legal capacity to execute,
deliver and perform this Agreement. This Agreement constitutes a
valid and binding obligation of the Stockholder enforceable
against the Stockholder in accordance with its terms. If the
Stockholder is married and the Securities constitute community
property under applicable law, this Agreement has been duly
authorized, executed and delivered by, and constitutes the valid
and binding agreement of, the Stockholder's spouse enforceable
against such spouse in accordance with its terms.
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(b) No Conflict. The execution, delivery and performance by the
Stockholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) result
in any breach or violation of or be in conflict with or
constitute a default under any law or agreement or arrangement to
which the Stockholder is a party or by which the Stockholder is
bound, (ii) require any filing by the Stockholder with or
authorization by any governmental entity (other than 13D/G
amendments) or (iii) require any consent or other action by any
person under, constitute a default under, or give rise to any
right of termination, cancellation or acceleration of a loss of
any benefit to which the Stockholder is entitled under any
provision of any agreement or other instrument binding on the
Stockholder.
(c) Ownership of Securities. Stockholder's Securities and the
certificates representing such Securities are now held by
Stockholder, or by a nominee or custodian for the benefit of
Stockholder, and the Stockholder has good and marketable title to
such Securities, free and clear of any (i) liens, proxies, voting
trusts or agreements, understandings or arrangements and (ii)
pledges, restrictions, charges or other adverse claims of any
kind or nature. Stockholder owns of record or beneficially no
securities of the Company, or any options, warrants or rights
exercisable for securities of the Company, other than the
Securities set forth opposite the Stockholder's name on Schedule
A hereto.*
(d) Merger Agreement. Stockholder understands and acknowledges that
parent and Subsidiary are entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this
Agreement.
4. Further Assurances. Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other
instruments as Parent may reasonably request for the purpose of
effectively carrying out the transactions contemplated by this Agreement
and to vest the power to vote Stockholder's Securities as contemplated
by Section 2.
5. Assignment; Binding Effect. Except as set forth herein, neither this
Agreement nor any of the rights, interests, or obligations hereunder
shall be assigned by any of the parties hereto (whether by operation of
law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer
on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
* See page 1
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* See page 1.
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6. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest to occur of the
Effective Time or the termination of the Merger Agreement in accordance
with its terms. Nothing in this Section 6 shall relieve any party from
liability for willful breach of this Agreement.
7. Stop Transfer. The Company agrees with, and covenants to, Parent that
the Company shall not register the transfer of any certificate
representing Stockholder's Securities unless such transfer is made in
accordance with the terms of this Agreement.
8. General provisions.
(a) Expenses. All costs and expenses incurred by Parent in connection
with this Agreement and the transactions contemplated hereby
shall be paid by Parent. All costs and expenses incurred by the
Stockholder in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Company;
provided, however, that Parent shall reimburse Stockholder, or
pay for directly if practicable, any expenses incurred in
connection with action requested by Parent.
(b) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(c) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given upon receipt to the parties
at the following addresses (or at such other address for a party
as shall be specified by like notice:)
(i) if to a Parent, to:
Watson Pharmaceuticals, Inc.
311 Bonnie Circle
Corona, California 91720
Fax: (909) 270-1429
Attn: Chairman & CEO
with a copy to:
Watson Pharmaceuticals, Inc.
311 Bonnie Circle
Corona, California 91720
Fax: (909) 270-1429
Attn: Legal Department
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; and
(ii) if to Stockholder, to the address set forth under the name
of Stockholder on Schedule A attached hereto:
with a copy to:
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022
Fax: (212) 446-4900
Attn: Stephen P. H. Johnson
(d) Interpretation. When a reference is made to this Agreement to a
Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Wherever
the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation."
(e) Counterparts. This Agreement may be executed in two or more
counterparts, all for which shall be considered one and the same
agreement and shall become effective when two or more
counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(f) Entire Agreement; No Third-party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and (ii) is not
intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard
to any applicable conflicts of law.
9. Stockholder Capacity. Stockholder signs solely in his capacity as the
record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, Stockholder's Securities and
nothing herein shall limit or affect any actions taken by Stockholder in
his capacity as an officer or director, if applicable, of the Company to
the extent specifically permitted by the Merger Agreement.
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10. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this Agreement in a
court of the United States. This being in addition to any other remedy
to which they are entitled at law or in equity. In addition, each of the
partys hereto waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any
of the transactions contemplated hereby.
STOCKHOLDER AGREES THAT, IN CONNECTION WITH ANY LEGAL SUIT OR PROCEEDING
ARISING WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
DELAWARE AND AGREES TO VENUE IN SUCH COURTS. STOCKHOLDER HEREBY APPOINTS
THE SECRETARY OF THE COMPANY AS HIS AGENT FOR SERVICE OF PROCESS FOR
PURPOSES OF THE FOREGOING SENTENCE ONLY. EACH PARTY HERETO WAIVES ANY
RIGHT TO JURY TRIAL IN CONNECTION WITH ANY SUCH SUIT OR PROCEEDING.
********
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WATSON PHARMACEUTICALS, INC.
By: /s/ Robert P. Funsten
--------------------------------
Name: Robert P. Funsten
------------------------------
Title: V.P., Legal Affairs
-----------------------------
STOCKHOLDER
/s/ Dinesh C. Patel
-----------------------------------
Dinesh C. Patel, Ph.D.
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SCHEDULE A
STOCKHOLDER SECURITIES HELD
Dinesh C. Patel, Ph.D. 2,687,926*
* A portion of these shares are pledged to secure borrowings by Dr. Patel. Dr.
Patel has retained voting rights on the pledged shares. In addition, Dr. Patel
holds options to purchase 175,002 shares.
