SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
ORPHAN MEDICAL, INC.
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
687303 10 7 (FOR COMMON STOCK ISSUED UPON CONVERSION)
(CUSIP Number)
MICHAEL GREENE
PARTNER
UBS CAPITAL II LLC
299 PARK AVENUE
NEW YORK, NEW YORK 10171
(212) 821-6380
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
COPIES TO:
NANCY E. FUCHS, ESQ.
KAYE SCHOLER LLP
425 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 836-8000
APRIL 18, 2005
(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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
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 (the "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).
Page 1 of 13 pages.
SCHEDULE 13D
CUSIP NO. 687303 10 7 PAGE 2 OF 13 PAGES
--------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
1
UBS Capital II LLC 13-3699851
--------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
2 (SEE INSTRUCTIONS) (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
--------------------------------------------------------------------------------
SOLE VOTING POWER
7
-0-
----------------------------------------------------------------
SHARED VOTING POWER
UBS Capital II LLC owns (i) 289,986 shares of Common
Stock, (ii) 8,706 shares of Senior Convertible Preferred
Stock (convertible into approximately 1,069,533(1) shares
NUMBER OF of Common Stock), (iii) 4,420 shares of Series B
SHARES Convertible Preferred Stock (convertible into
BENEFICIALLY approximately 680,000(2) shares of Common Stock), (iv) a
OWNED BY warrant to purchase up to 2,050 shares of non-voting
EACH 8 Series C Convertible Preferred Stock or 315,385 shares
REPORTING of Series D Non-Voting Convertible Preferred Stock
PERSON (convertible into an aggregate of 315,385 shares of
WITH Common Stock) or any combination thereof up to a maximum
aggregate purchase price of $2,050,000, (v) a warrant to
purchase up to 282,353 shares of Series D Non-Voting
Convertible Preferred Stock (convertible into 282,353
shares of Common Stock) and (vi) options to purchase
40,000 shares of Common Stock. By virtue of the Proxy
granted to Buyer pursuant to the Voting Agreement (all
as defined in Item 4 hereof), the Buyer may be deemed to
share the power to vote the foregoing securities in
accordance with the terms of the Voting Agreement.
--------------------------------------------------------------------------------
-------------
(1) Assuming conversion price of $8.14 per share, the adjusted conversion
price.
(2) Assuming conversion price of $6.50 per share, the initial conversion
price.
SCHEDULE 13D
CUSIP NO. 687303 10 7 PAGE 3 OF 13 PAGES
--------------------------------------------------------------------------------
SOLE DISPOSITIVE POWER
UBS Capital II LLC owns (i) 289,986 shares of Common
Stock, (ii) 8,706 shares of Senior Convertible Preferred
Stock (convertible into approximately 1,069,533(1) shares
of Common Stock), (iii) 4,420 shares of Series B
Convertible Preferred Stock (convertible into
approximately 680,000(2) shares of Common Stock), (iv) a
9 warrant to purchase up to 2,050 shares of non-voting
Series C Convertible Preferred Stock or 315,385 shares
of Series D Non-Voting Convertible Preferred Stock
(convertible into an aggregate of 315,385 shares of
Common Stock) or any combination thereof up to a maximum
aggregate purchase price of $2,050,000, (v) a warrant to
purchase up to 282,353 shares of Series D Non-Voting
Convertible Preferred Stock (convertible into 282,353
shares of Common Stock) and (vi) options to purchase
40,000 shares of Common Stock.
--------------------------------------------------------------------------------
SHARED DISPOSITIVE POWER
10
-0-
--------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
UBS Capital II LLC owns (i) 289,986 shares of Common
Stock, (ii) 8,706 shares of Senior Convertible Preferred
Stock (convertible into approximately 1,069,533(1) shares
of Common Stock), (iii) 4,420 shares of Series B
Convertible Preferred Stock (convertible into
approximately 680,000(2) shares of Common Stock), (iv) a
warrant to purchase up to 2,050 shares of non-voting
Series C Convertible Preferred Stock or 315,385 shares
of Series D Non-Voting Convertible Preferred Stock
(convertible into an aggregate of 315,385 shares of
Common Stock) or any combination thereof up to a maximum
aggregate purchase price of $2,050,000, (v) a warrant to
purchase up to 282,353 shares of Series D Non-Voting
Convertible Preferred Stock (convertible into 282,353
shares of Common Stock) and (vi) options to purchase
40,000 shares of Common Stock.
--------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
UBS Capital II LLC beneficially owns shares of Common
Stock and capital stock convertible into an aggregate of
13 approximately 19.4% of Common Stock of the Issuer (based
on 11,430,066 shares outstanding as of March 10, 2005
plus shares of Common Stock issuable upon the conversion
and exercise of the reported securities).
--------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
OO
--------------------------------------------------------------------------------
----------------
(1) Assuming conversion price of $8.14 per share, the adjusted conversion price.
(2) Assuming conversion price of $6.50 per share, the initial conversion price.
SCHEDULE 13D
CUSIP NO. 687303 10 7 PAGE 4 OF 13 PAGES
--------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
1 ONLY)
UBS Capital Holdings LLC 13-3952898
--------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
2 INSTRUCTIONS) (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
--------------------------------------------------------------------------------
SOLE VOTING POWER
7
-0-
----------------------------------------------------------------
SHARED VOTING POWER
NUMBER OF 8
SHARES -0-
BENEFICIALLY ----------------------------------------------------------------
OWNED BY SOLE DISPOSITIVE POWER
EACH 9
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH SHARED DISPOSITIVE POWER
10
-0-
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP NO. 687303 10 7 PAGE 5 OF 13 PAGES
--------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
UBS Capital II LLC owns (i) 289,986 shares of Common
Stock, (ii) 8,706 shares of Senior Convertible Preferred
Stock (convertible into approximately 1,069,533(1) shares
of Common Stock), (iii) 4,420 shares of Series B
Convertible Preferred Stock (convertible into
approximately 680,000(2) shares of Common Stock), (iv) a
warrant to purchase up to 2,050 shares of non-voting
11 Series C Convertible Preferred Stock or 315,385 shares
of Series D Non-Voting Convertible Preferred Stock
(convertible into an aggregate of 315,385 shares of
Common Stock) or any combination thereof up to a maximum
aggregate purchase price of $2,050,000, (v) a warrant to
purchase up to 282,353 shares of Series D Non-Voting
Convertible Preferred Stock (convertible into 282,353
shares of Common Stock) and (vi) options to purchase
40,000 shares of Common Stock. UBS Capital Holdings LLC,
by virtue of the fact that it owns 100% of UBS Capital
II LLC, beneficially owns all such shares.
--------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
UBS Capital II LLC beneficially owns shares of Common
Stock and capital stock convertible into an aggregate of
approximately 19.4% of Common Stock of the Issuer (based
13 on 11,430,066 shares outstanding as of March 10, 2004
plus shares of Common Stock issuable upon the conversion
and exercise of the reported securities). UBS Capital
Holdings LLC, by virtue of the fact that it owns 100% of
UBS Capital II LLC, beneficially owns all such shares.
--------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
OO
--------------------------------------------------------------------------------
-----------------
(1) Assuming conversion price of $8.14 per share, the adjusted conversion
price.
(2) Assuming conversion price of $6.50 per share, the initial conversion
price.
SCHEDULE 13D
CUSIP NO. 687303 10 7 PAGE 6 OF 13 PAGES
--------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
1 ONLY)
UBS AG 98-0186363
--------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
2 INSTRUCTIONS) (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
SOURCE OF FUNDS (SEE INSTRUCTIONS)
4
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Switzerland
--------------------------------------------------------------------------------
SOLE VOTING POWER
7
-0-
----------------------------------------------------------------
SHARED VOTING POWER
NUMBER OF 8
SHARES -0-
BENEFICIALLY ----------------------------------------------------------------
OWNED BY SOLE DISPOSITIVE POWER
EACH 9
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH SHARED DISPOSITIVE POWER
10
-0-
--------------------------------------------------------------------------------
SCHEDULE 13D
CUSIP NO. 687303 10 7 PAGE 7 OF 13 PAGES
--------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
UBS Capital II LLC owns (i) 289,986 shares of Common
Stock, (ii) 8,706 shares of Senior Convertible Preferred
Stock (convertible into approximately 1,069,533(1) shares
of Common Stock), (iii) 4,420 shares of Series B
Convertible Preferred Stock (convertible into
approximately 680,000(2) shares of Common Stock), (iv) a
warrant to purchase up to 2,050 shares of non-voting
11 Series C Convertible Preferred Stock or 315,385 shares
of Series D Non-Voting Convertible Preferred Stock
(convertible into an aggregate of 315,385 shares of
Common Stock) or any combination thereof up to a maximum
aggregate purchase price of $2,050,000, (v) a warrant to
purchase up to 282,353 shares of Series D Non-Voting
Convertible Preferred Stock (convertible into 282,353
shares of Common Stock) and (vi) options to purchase
40,000 shares of Common Stock. UBS AG, by virtue of the
fact that it owns 100% of UBS Capital Holdings LLC,
beneficially owns all such shares.
--------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) [ ]
--------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
UBS Capital II LLC beneficially owns shares of Common
Stock and capital stock convertible into an aggregate of
approximately 19.4% of Common Stock of the Issuer (based
on 11,430,066 shares outstanding as of March 10, 2005
plus shares of Common Stock issuable upon the conversion
and exercise of the reported securities). UBS AG
beneficially owns all such shares, by virtue of the fact
that it owns 100% of UBS Capital Holdings LLC.
--------------------------------------------------------------------------------
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
CO
--------------------------------------------------------------------------------
--------------------
(1) Assuming conversion price of $8.14 per share, the adjusted conversion
price.
(2) Assuming conversion price of $6.50 per share, the initial conversion
price.
SCHEDULE 13D
The Statement on Schedule 13D (the "Schedule 13D") initially filed
on August 3, 1998 with the Securities and Exchange Commission (the "Commission")
by UBS Capital II LLC, a Delaware limited liability company ("UBS"), UBS Capital
Holdings LLC, a Delaware limited liability company ("Holdings") and UBS AG, a
Swiss banking corporation ("UBS AG"), as amended by Amendment No. 1 to the
Schedule 13D filed on August 20, 1999 and Amendment No. 2 to the Schedule 13D
filed on March 3, 2005, which relates to the beneficial ownership of (a) shares
of Common Stock ("Common Stock") of Orphan Medical, Inc., a Minnesota
corporation (the "Company"), (b) shares of Senior Convertible Preferred Stock,
par value $.01 per share (the "Preferred Stock"), which are convertible into
shares of Common Stock, (c) shares of Series B Convertible Preferred Stock, par
value $.01 per share (the "Series B Preferred Stock"), which are convertible
into shares of Common Stock, (d) a warrant to purchase shares of non-voting
Series C Convertible Preferred Stock, par value $.01 per share (the "Series C
Preferred Stock") or shares of Series D Non-Voting Convertible Preferred Stock,
par value $.01 per share (the "Series D Preferred Stock") or any combination
thereof, which are convertible into shares of Common Stock and (e) a warrant to
purchase shares of Series D Preferred Stock, which are convertible into shares
of Common Stock, is hereby amended as follows.
ITEM 4 PURPOSE OF TRANSACTION
The following is hereby added to the end of Item 4:
The foregoing is qualified in its entirety by the following:
Orphan Medical, Inc., a Delaware corporation (the "Company"), Jazz
Pharmaceuticals, Inc., a Delaware corporation ("Buyer"), and Twist Merger Sub,
Inc., a Delaware corporation ("Sub") entered into a Merger Agreement as of April
18, 2005 (the "Merger Agreement", attached hereto as Exhibit 9 and incorporated
by reference herein), which provides for, upon the terms and subject to the
conditions set forth therein, the merger of Sub with and into the Company (as
set forth in the Merger Agreement) in exchange for a cash payment for all of the
issued and outstanding shares of capital stock of the Company (the "Merger").
The Voting Agreement provides that approval of the Merger Agreement by (i) the
holders of a majority of the issued and outstanding shares of the Company's
Common Stock, $0.01 par value per share, voting together with the holders of the
Company's Senior Convertible Preferred Stock, $0.01 par value per share ("Senior
Preferred Stock"), voting on an as converted basis and (ii) the holders of a
majority of the issued and outstanding shares of Senior Preferred Stock, voting
as a separate class, among other things, is required in order to consummate the
transactions contemplated by the Merger Agreement. Pursuant to the Agreement,
dated as of December 7, 2001, between the Company and UBS attached hereto as
Exhibit 8 and incorporated by reference herein, UBS irrevocably waived its
rights to vote the Senior Preferred Stock as a separate class with respect to
certain matters, including a merger of the Company with or into another person.
In connection with the execution of the Merger Agreement, Buyer has required
certain stockholders of the Company, including UBS, to enter into the Voting
Agreement, dated as of April 18, 2005, among the Company, Buyer, Sub, UBS and
each stockholder of the Company
Page 8 of 13 pages
signatory thereto (the "Voting Agreement", attached hereto as Exhibit 10 and
incorporated by reference herein). The Voting Agreement is described below
(certain capitalized terms used and not otherwise defined herein have the
meanings ascribed to them in the Voting Agreement).
Agreement to Vote. From April 18, 2005 until the termination of the Voting
Agreement (the "Term"), at every time as the Company convenes a meeting of, or
otherwise seeks a vote of, the Company's stockholders for the purpose of
approving the Merger, UBS agrees to vote, or cause to be voted, to the extent
not voted by Buyer as appointed by the Proxy (defined below), all of its Subject
Shares: (a) in favor of the approval and adoption of the Merger Agreement and
the approval of the Merger and the transactions contemplated by the Merger
Agreement; (b) against approval of any proposal made in opposition to, or in
competition with, the Merger and the transactions contemplated by the Merger
Agreement; and (c) against any actions (other than those actions that relate to
the Merger and the transactions contemplated by the Merger Agreement) that are
intended to, or could be reasonably expected to, impair the ability of the
Company to consummate the Merger or otherwise impede, interfere with, delay,
postpone, discourage or adversely affect the consummation of the Merger in
accordance with the terms of the Merger Agreement. UBS further agrees not to
enter into any agreement or understanding with any person to vote or give
instructions in any manner inconsistent with or violative of the foregoing
terms.
Proxy. UBS constitutes and appoints Buyer as its proxy (its "Proxy") to vote
UBS' Subject Shares at every annual, special, adjourned or postponed meeting of
the stockholders of the Company called for purposes of considering whether to
approve the Merger Agreement or any of the other transactions or matters
contemplated by, or directly or indirectly affecting, the Merger Agreement or to
execute a written consent of stockholders in lieu of any such meeting.
Transfer of Subject Shares. Except as otherwise contemplated by the Merger
Agreement, until the termination of the Voting Agreement, UBS agrees that it
will be the beneficial owner of all of its Subject Shares and will hold such
Subject Shares free and clear of all Liens and will not, directly or indirectly,
without the prior written consent of Buyer: (a) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise in any way dispose of, or enter
into any contract, option or other agreement (oral or written) with respect to
or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or any other disposition of, any or all of such Stockholder's Subject
Shares, or any interest therein; (b) grant any proxies or powers of attorney,
deposit any of the Subject Shares into a voting trust or enter into a voting
agreement with respect to any of the Subject Shares; (c) take any action that
would reasonably be expected to have the effect of preventing or disabling such
Stockholder from performing its obligations under this Agreement or making any
representation or warranty of such contained in this Agreement untrue or
incorrect; or (d) enter into any agreement or arrangement providing for any of
the actions described in clause (a), (b) or (c) above.
Termination. The Voting Agreement terminates upon the earliest to occur of (i)
the Merger Effective Time, (ii) the valid termination of the Merger Agreement in
accordance with its terms, (iii) the execution of any amendment to the Merger
Agreement that modifies the amount, form or timing of payment of the Merger
Consideration in a manner adverse to any Stockholder without the prior written
consent of such Stockholder or (iv) the mutual agreement of the parties hereto.
Page 9 of 13 pages
Certain Events. UBS agrees that the Voting Agreement and its obligations
thereunder shall attach to its Subject Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Subject Shares
shall pass, whether by operation of law or otherwise, including, without
limitation, UBS' successors. Notwithstanding any transfer of Subject Shares, the
transferor shall remain liable for the performance of all its obligations under
the Voting Agreement.
The preceding summary of certain provisions of the Voting Agreement is not
intended to be complete and is qualified in its entirety by reference to the
full text of the Voting Agreement and the Merger Agreement, copies of which are
filed as exhibits hereto and are incorporated herein by reference.
ITEM 5 INTEREST IN SECURITIES OF THE ISSUER
Item 5 is hereby deleted in its entirety and replaced with the following:
a. UBS is the beneficial owner of 289,986 shares of Common Stock,
8,706 shares of Senior Convertible Preferred Stock and 4,420 shares of Series B
Convertible Preferred Stock which shares of Senior Convertible Preferred Stock
and Series B Convertible Preferred Stock are currently convertible into an
aggregate of 1,749,533 shares of Common Stock. In addition, UBS beneficially
owns up to 2,050 shares of non-voting Series C Convertible Preferred Stock or
315,385 shares of Series D Non-Voting Convertible Preferred Stock or any
combination thereof up to a maximum aggregate purchase price of $2,050,000 and
282,353 shares of Series D Non-Voting Convertible Preferred Stock, such shares
are issuable upon exercise of the respective warrants. Upon issuance, such
shares would currently be convertible into 315,385 shares and 282,353 shares,
respectively, of Common Stock, subject to anti-dilution adjustments. UBS also
beneficially owns 40,000 shares of Common Stock issuable pursuant to a stock
option agreement. UBS, therefore, is the beneficial owner of shares of Common
Stock and capital stock convertible into, on an aggregate basis, approximately
19.4% of the issued and outstanding shares of Common Stock of the Company (based
on 11,430,066 shares outstanding as of March 10, 2004 plus shares of Common
Stock issuable upon the conversion and exercise of the reported securities).
Pursuant to the terms of the Certificate of Incorporation of the
Company, the conversion price of the Preferred Stock had initially been equal to
the lesser of (i) 10% above the 20-day average bid price immediately prior to
July 23, 1998 and (ii) 10% above the 20-day average bid price immediately prior
to October 21, 1998, but in no event was the initial conversion price to be less
than $8.50 per share. In accordance with the initial terms of the Preferred
Stock in connection with the sale of the Series B Preferred Stock, the
conversion price on the Preferred Stock was reduced from its initial conversion
price of $8.50 per share to $8.14 per share. Pursuant to the terms of the
Certificate of Incorporation, the conversion price of the Series B Preferred
Stock is initially $6.50 per share. The Warrant has an exercise price of $1,000
for the purchase of Series C Preferred Stock and $6.50 for the purchase of
Series D Preferred Stock and the Financing Warrant has an exercise price of
$4.25 for the purchase of Series D Preferred Stock. Of the vested options,
25,000 options have an exercise price of $7.81 per share, 5,000 options have an
exercise price of $10.75 per share, 5,000 options have an exercise price of
$7.20 per share and 5,000 options have an exercise price of $9.31 per share. All
of the vested
Page 10 of 13 pages
options are exercisable at any time. Prior to exercise, neither the warrants nor
the options are accorded any voting rights.
By virtue of the fact that UBS AG owns 100% of Holdings, which owns
100% of UBS Capital II LLC, UBS AG and Holdings are each the beneficial owner of
all such stock. UBS AG and Holdings each disclaim beneficial ownership of any
equity securities of the Company.
b. By virtue of the Proxy granted to Buyer pursuant to the Voting
Agreement, all as described in Item 4 above, the Buyer may be deemed to share
the power to vote or direct the vote of the securities identified in paragraph
(a) above with UBS in accordance with the terms of the Voting Agreement, to the
extent such shares have the power to vote, under the circumstances described in
the Certificates of Designation; subject to the restrictions contained in the
Voting Agreement with respect to the transfer of the Company's securities, UBS
has the sole power to dispose or direct the disposition of all shares identified
in paragraph (a) above. The information required by Item 2 with respect to Buyer
can be found in the Schedule 13D filed by Buyer.
c. Except as described herein, the Reporting Persons have not
effected any transaction in the securities of the Company during the past 60
days.
d. Not applicable.
e. Not applicable.
ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE COMMON STOCK OF THE ISSUER
The word "herein" in the first sentence of the second paragraph of
Item 6 is hereby deleted and replaced with the words "in the Schedule 13D, as
amended".
7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 Information relating to the members of the Board of
Directors and executive officers of UBS AG (incorporated
by reference to Exhibit 1 of Amendment No. 2 to Schedule
13D of the registrant filed on March 3, 2005).
Exhibit 2 Stock Purchase Agreement, dated as of July 23, 1998,
between Orphan Medical, Inc. and UBS Capital II LLC
(incorporated by reference to Exhibit 10.48 filed with
the Form 10-Q of Orphan Medical, Inc. filed on July 31,
1998).
Exhibit 3 Stock Purchase Agreement, dated as of August 2, 1999,
between Orphan Medical, Inc. and UBS Capital II LLC
(incorporated by reference to Exhibit 2 of Amendment No.
1 to Schedule 13D of the registrant filed on August 20,
1999).
Page 11 of 13 pages
Exhibit 4 Certificate of Designation of Orphan Medical, Inc.
(incorporated by reference to Exhibit 3.11 filed with
the Form 10-Q of Orphan Medical, Inc. filed on July 30,
1998).
Exhibit 5 Certificate of Designation of Orphan Medical, Inc.
(incorporated by reference to Exhibit 7 of Amendment No.
1 to Schedule 13D of the registrant filed on August 20,
1999).
Exhibit 6 Warrant to purchase shares of Series C Convertible
Preferred Stock or Series D Non-Voting Preferred Stock
dated August 2, 1999 (incorporated by reference to
Exhibit 4 of Amendment No. 1 to Schedule 13D of the
registrant filed on August 20, 1999).
Exhibit 7 Warrant to purchase shares of Series D Non-Voting
Preferred Stock dated August 2, 1999 (incorporated by
reference to Exhibit 5 of Amendment No. 1 to Schedule
13D of the registrant filed on August 20, 1999).
Exhibit 8 Agreement, between Orphan Medical, Inc. and UBS Capital
II LLC, dated as of December 7, 2001 (incorporated by
reference to Exhibit 10.61 filed with the Form 10-K of
Orphan Medical, Inc. filed on April 1, 2002).
Exhibit 9 Merger Agreement, dated as of April 18, 2005, among
Orphan Medical, Inc., Jazz Pharmaceuticals, Inc. and
Twist Merger Sub, Inc. (incorporated by reference to
Exhibit 2.1 filed with the Current Report on Form 8-K of
Orphan Medical, Inc. filed on April 20, 2005).
Exhibit 10 Voting Agreement, dated as of April 18, 2005, among
Orphan Medical, Inc., Jazz Pharmaceuticals, Inc., Twist
Merger Sub, Inc., UBS Capital II LLC and each
stockholder of the Company signatory thereto
(incorporated by reference to Exhibit 10.1 filed with
the Current Report on Form 8-K of Orphan Medical, Inc.
filed on April 20, 2005).
Page 12 of 13 pages
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is true,
complete and correct.
Dated as of April 28, 2005
UBS CAPITAL II LLC
By: /s/ Louis R. Eber
------------------------------
Name: Louis R. Eber
Title: Managing Director
By: /s/ Sandra Ward Costin
------------------------------
Name: Sandra Ward Costin
Title: Executive Director
UBS CAPITAL HOLDINGS LLC
By: /s/ Louis R. Eber
------------------------------
Name: Louis R. Eber
Title: Managing Director
By: /s/ Sandra Ward Costin
------------------------------
Name: Sandra Ward Costin
Title: Executive Director
UBS AG
By: /s/ Per Dyrvik
------------------------------
Name: Per Dyrvik
Title: Managing Director
By: /s/ Regina Dolan
------------------------------
Name: Regina Dolan
Title: Managing Director and
Chief Financial Officer
Page 13 of 13 pages