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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
- --------------------------------------------------------------------------------
(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 13G Page 2 of 4 Pages
================================================================================
================================================================================
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William I. Higuchi
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)___
Not applicable (b)___
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizen
================================================================================
================================================================================
NUMBER OF 5 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY ------------------------------------------
EACH 6 SHARED VOTING POWER
REPORTING
PERSON 2,313,034
WITH ------------------------------------------
7 SOLE DISPOSITIVE POWER
0
------------------------------------------
8 SHARED DISPOSITIVE POWER
2,313,034
================================================================================
================================================================================
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,313,034
- --------------------------------------------------------------------------------
10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES*
Not applicable
- --------------------------------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
10.7%
- --------------------------------------------------------------------------------
12 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTION BEFORE FILLING OUT!
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ITEM 1. ISSUER
(a) NAME OF ISSUER: TheraTech, Inc.
(b) ADDRESS OF ISSUER'S 417 Wakara Way
PRINCIPLE EXECUTIVE Salt Lake City, Utah 84108
OFFICES:
ITEM 2. REPORTING PERSON INFORMATION
(a) NAME OF PERSON FILING: William I. Higuchi
(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:
2,313,034
(b) PERCENT OF CLASS:
10.7%
(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: 2,313,034 (which
includes presently exercisable options to purchase 34,000 shares
and 4,500 shares owned by Setsuko Higuchi (spouse). 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:
2,313,034 (which includes presently exercisable options to
purchase 34,000 shares and 4,500 shares owned by Setsuko Higuchi
(spouse). 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
ITEM 6.OWNERSHIP OF MORE THAN FIVE PERCENT ON BEHALF OF ANOTHER PERSON
Not applicable
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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/ William I Higuchi
----------------------------
William I. Higuchi
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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 William I. Higuchi
(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 2,299,034
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;
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provided, however, that any Stockholder that is an individual may
transfer all or any 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.
Notwithstanding subsection (i) above, Stockholder may sell up to
65,000 shares of Company Common Stock for the limited purpose of
satisfying any cash settlement of, or the unwinding of, his
"zero-cost collar" arrangement which expires on March 9, 1999, as
identified on Stockholder's Form 4 for March, 1998, filed with the
Securities and Exchange Commission on April 10, 1998, if
Stockholder has complied with the following: (x) Stockholder has
complied with all legal obligations in order to sell such shares,
including without limitation, compliance with all applicable
securities laws and regulations, compliance with all insider
trading legislation and policies and receipt of an opinion of
counsel authorizing such sale, if necessary, and (y) Stockholder
has provided Parent with at least ten (10) days prior written
notice of his intention to sell such shares, with appropriate
documentation evidencing compliance with (x) above, such
documentation to be reasonably acceptable to Parent, and (z) such
sale does not in any way jeopardize or otherwise alter the pooling
of interest accounting treatment of the Merger, as determined in
the sole discretion of Parent.
(b) 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
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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").
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.
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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.
(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 (other than the "zero-cost collar" arrangement described
in Section 1(a) above). 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.
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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.
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:)
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(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
; 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.
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(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.
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/ William I. Higuchi
--------------------------------------
William I. Higuchi
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SCHEDULE A
STOCKHOLDER SECURITIES HELD
William I. Higuchi 2,299,034
