-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OaDveZGtpTDHsC6r1MXV3xyf8d/RJls0WUB2e+WlFUk7EefAHOYKLcUnhiMnccpl jAShEcQuFSmtULzNMfM12A== 0000891836-03-000712.txt : 20031208 0000891836-03-000712.hdr.sgml : 20031208 20031208161525 ACCESSION NUMBER: 0000891836-03-000712 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20031208 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VITAL LIVING INC CENTRAL INDEX KEY: 0001145700 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 880485596 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79189 FILM NUMBER: 031042735 BUSINESS ADDRESS: STREET 1: 5080 NORTH 40TH STREET, SUITE 105 CITY: PHOENIX STATE: AZ ZIP: 85018 BUSINESS PHONE: 602-952-9909 MAIL ADDRESS: STREET 1: 5080 NORTH 40TH STREET, SUITE 105 CITY: PHOENIX STATE: AZ ZIP: 85018 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SKYEPHARMA PLC CENTRAL INDEX KEY: 0001018117 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 105 PICADILLY CITY: LONDON W1J 7NJ STATE: X0 BUSINESS PHONE: 0114417149 MAIL ADDRESS: STREET 1: 105 PICADILLY CITY: LONDON W1J 7NJ STATE: X0 SC 13D/A 1 sc0360.txt SCHEDULE 13D AMENDMENT #2 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A UNDER THE EXCHANGE ACT OF 1934 AMENDMENT NO. 2 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-2(a) VITAL LIVING, INC. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.001 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 92846Y100 ------------------------------------------------------- (CUSIP Number) - -------------------------------------------------------------------------------- DONALD NICHOLSON KATHRYN A. CAMPBELL, ESQ. SKYEPHARMA PLC SULLIVAN & CROMWELL LLP 105 PICCADILLY 1 NEW FETTER LANE LONDON W1J 7NJ, ENGLAND LONDON EC4A 1AN, ENGLAND +44 20 7491 1777 +44 20 7959 8900 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 4, 2003 ------------------------------------------------------- (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 which 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 [ ]. 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. (continued on following pages) - -------------------------------------------------------------------------------- CUSIP NO. 92846Y100 PAGE 2 OF 5 PAGES --- ---- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS SKYEPHARMA PLC 330387911 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS WC, OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION ENGLAND AND WALES - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 NUMBER OF ----------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 36,018,973(1)(2) EACH REPORTING ----------------------------------------------------------- PERSON WITH 9 SOLE DISPOSITIVE POWER 15,204,548(2) ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,204,548(1)(2) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |X| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.95%(2)(3) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- (1) In order to facilitate the consummation of the transaction contemplated by the Agreement and Plan of Merger by and among Vital Living, Inc. (the "Issuer"), VLEN Acquisition Corp., Inc. ("VLEN") and E-Nutriceuticals, Inc. ("ENI"), dated as of August 20, 2003 - -------------------------------------------------------------------------------- CUSIP NO. 92846Y100 PAGE 3 OF 5 PAGES --- ---- - -------------------------------------------------------------------------------- (the "Merger Agreement", and the transaction contemplated thereby, the "Merger"), SkyePharma PLC ("SkyePharma") entered into a Stockholders' Agreement with the Issuer and the other parties listed therein, dated as of August 20, 2003 (the "Stockholders' Agreement"), whereby each of Bradley Edson ("Mr. Edson"), Stuart Benson ("Mr. Benson") and Donald Hannah (Mr. Hannah, and with Mr. Edson and Mr. Benson, the "Founders Group"), Fifth Avenue Capital, Inc. ("Fifth Avenue Capital") and Stephen Morris ("Mr. Morris, and with Fifth Avenue Capital, the "Morris Group"), and SkyePharma (collectively, the "Stockholders") agreed to vote its shares of common stock, par value $0.001 per share (the "Common Stock") of Vital Living, options, warrants or convertible securities to purchase Common Stock, and other voting securities (the "Shares") of the Issuer to elect the directors nominated by the other Stockholders. SkyePharma does not have the right to dispose or direct the disposition of any of the 20,814,425 shares of Common Stock or securities convertible or exercisable into Common Stock owned by the other parties to the Stockholders' Agreement. Accordingly, SkyePharma expressly disclaims beneficial ownership of all such shares. 2 SkyePharma is currently the beneficial owner of 14,204,548 shares of Common Stock and 1,000,000 shares of Series D Convertible Preferred Stock, par value $0.001 per share, of the Issuer (the "Preferred Stock"). Accordingly, SkyePharma has beneficial ownership of 15,204,548 shares of Common Stock, assuming the conversion of all shares of Preferred Stock owned or to be purchased by SkyePharma into Common Stock at the current conversion price of $1.00. 3 Based on 57,601,170 shares of Common Stock outstanding on November 10, 2003 as reported on the Form 10-QSB filed by the Issuer with the U.S. Securities and Exchange Commission (the "Commission") on November 19, 2003, and the conversion of 1,000,000 shares of Preferred Stock into 1,000,000 shares of Common Stock. ITEM 1 SECURITY AND ISSUER This Amendment No. 2 amends and supplements the Schedule 13D filed by SkyePharma with the Commission on August 29, 2003, as amended by Amendment No. 1 filed with the Commission on November 21, 2003, relating to the Common Stock of Vital Living, Inc., a Nevada corporation, including such Common Stock issuable upon conversion of Preferred Stock held by SkyePharma. The Issuer's principal executive offices are located at 5080 North 40th Street, Suite #105, Phoenix, Arizona, 85018. ITEM 4 PURPOSE OF THE TRANSACTION On December 4, 2003, SkyePharma amended the terms of the Commitment Letter (the "Commitment Letter") from SkyePharma to the Issuer, dated as of August 20, 2003, executed pursuant to Section 5 of the Merger Agreement, as amended on November 19, 2003. The amendment of December 4th extended the time period during which SkyePharma had committed to invest 1,000,000 U.S. dollars in the event that the Issuer raised an additional 3,000,000 U.S. dollars in an offering of securities through December 15, 2003. This obligation, if consummated, would be expected to result in an additional holding of 1,000,000 convertible securities (the "Additional Securities") convertible into approximately 1,000,000 shares of Common Stock or more, depending on the price of such issuance and the conversion price and other terms of the Additional Securities and any accompanying warrants. SkyePharma is continuously evaluating the business and business prospects of the Issuer, and its present and future interests in, and intentions with respect to the Issuer and at - -------------------------------------------------------------------------------- CUSIP NO. 92846Y100 PAGE 4 OF 5 PAGES --- ---- - -------------------------------------------------------------------------------- any time may decide to acquire additional shares or dispose of any or all of the shares of Common Stock or Preferred Stock owned by it. SkyePharma currently intends to exercise its rights as shareholder in the Issuer, and in connection therewith, may, from time to time, (i) have discussion with management and/or other shareholders of the Issuer concerning various operational and financial aspects of the Issuer's business, (ii) make one or more proposals to the Issuer or other shareholders of the Issuer relating to joint ventures, mergers, business combinations or extraordinary transactions, and (iii) solicit proxies. ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER On December 4, 2003, SkyePharma amended the terms of the Commitment Letter from SkyePharma to the Issuer, dated as of August 20, 2003, executed pursuant to Section 5 of the Merger Agreement, as amended on November 19, 2003. The amendment of December 4th extended the time period during which SkyePharma had committed to invest 1,000,000 U.S. dollars in the event that the Issuer raised an additional 3,000,000 U.S. dollars in an offering of securities through December 15, 2003. This obligation, if consummated, would be expected to result in an additional holding of 1,000,000 Additional Securities convertible into approximately 1,000,000 shares of Common Stock or more, depending on the price of such issuance and the conversion price and other terms of the Additional Securities and any accompanying warrants. ITEM 7 MATERIALS TO BE FILED AS EXHIBITS Exhibit 1. Registration Rights Agreement between Vital Living, Inc. and SkyePharma PLC, dated as of August 20, 2003 (incorporated by reference to Exhibit 1 to the Schedule 13D filed by SkyePharma PLC with the Commission on August 29, 2003). Exhibit 2. Subscription Agreement between Vital Living, Inc. and SkyePharma PLC, dated as of August 20, 2003 (incorporated by reference to Exhibit 2 to the Schedule 13D filed by SkyePharma PLC with the Commission on August 29, 2003). Exhibit 3. Commitment Letter of SkyePharma PLC, dated as of August 20, 2003 as amended November 19, 2003 and December 4, 2003. Exhibit 4. Stockholders' Agreement, between SkyePharma PLC, Vital Living Inc., Bradley Edson, Stuart Benson, Donald Hannah, Stephen Morris and Fifth Avenue Capital Inc., dated as of August 20, 2003 (incorporated by reference to Exhibit 4 to the Schedule 13D filed by SkyePharma PLC with the Commission on August 29, 2003). - -------------------------------------------------------------------------------- CUSIP NO. 92846Y100 PAGE 5 OF 5 PAGES --- ---- - -------------------------------------------------------------------------------- SIGNATURE After reasonable 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. December 8, 2003 SkyePharma PLC By: /s/ Donald Nicholson -------------------------------------- Name: Donald Nicholson Title: Finance Director EX-99.3 3 sc0360b.txt EX. 3: COMMITMENT LETTER [SKYEPHARMA LETTERHEAD] Vital Living, Inc. 5080 North 40th Street, Suite 105 Phoenix, Arizona 85018-2158 United States 4 December 2003 We refer to the letter, dated as of 20 August 2003, as amended on 19 November 2003 (the "Commitment Letter"), from SkyePharma PLC to you ("Vital Living"), executed in connection with the Agreement and Plan of Merger (the "Merger Agreement"), by and among Vital Living, VLEN Acquisition Corp., Inc. and e-nutriceuticals, Inc., dated as of 20 August 2003. For good and valuable consideration we hereby agree to extend our obligations under the Commitment Letter as follows. Subject to the receipt of final and satisfactory documentation, acceptable to us in our reasonable discretion, establishing the consummation of a financing raising at least $3,000,000 of gross proceeds in a private offering of equity or notes convertible into equity (having terms substantially the same as the term sheet attached as Annex A hereto) of Vital Living on or before 15 December 2003 ("Private Offering"), we agree to invest $1,000,000 on the same terms as the investors in such financing, provided that if such private investors are offered differing terms, the investment will be made on terms no less favorable than the most favorable terms provided to such investors. Such investment and terms shall be subject to SkyePharma's satisfaction in our sole discretion with the structuring of the investment to avoid potential Section 16 liability. The undersigned acknowledges and agrees that included in the $3,000,000 of gross proceeds raised is the approximately $1,500,000 of "Bridge Notes" referred to in Annex A which will convert into the Private Offering, provided that such Bridge Notes are established to SkyePharma's satisfaction to have been entered into in connection with a bridge financing which occurred after 15 October 2003. SKYEPHARMA PLC By: /s/ Donald Nicholson ----------------------------- Donald Nicholson Finance Director -----END PRIVACY-ENHANCED MESSAGE-----