UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
ANTARES PHARMA, INC.
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
036642106
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(CUSIP Number)
Mitchell D. Kaye, Manager with a copy to:
Xmark Asset Management, LLC Steven E. Siesser, Esq.
152 West 57th Street Lowenstein Sandler PC
21st Floor 65 Livingston Avenue
New York, New York 10019 Roseland, New Jersey 07068
(212) 247-8200 (973) 597-2506
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 31, 2003
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
* 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
disclosures provided in a prior cover page.
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 ("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).
Cusip No. 036642106
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Asset Management, LLC
13-3954392
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2. Check the Appropriate Box if a Member of a Group (See Instructions):
(a) Not
(b) Applicable
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3. SEC Use Only
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4. Source of Funds (See Instructions): WC
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e): Not Applicable
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6. Citizenship or Place of Organization: New York, United States
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Number of 7. Sole Voting Power: *
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Shares Beneficially 8. Shared Voting Power: *
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Owned by
Each Reporting 9. Sole Dispositive Power: *
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Person With 10. Shared Dispositive Power: *
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 6,394,774*
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions): Not Applicable
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13. Percent of Class Represented by Amount in Row (11): 25.7%*
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14. Type of Reporting Person (See Instructions): IA
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* Xmark Fund, L.P., a Delaware limited partnership ("Xmark LP"), is the holder
of: (i) 392,183 shares (the "Xmark LP Shares") of Common Stock, par value $0.01
per share (the "Common Stock"), of Antares Pharma, Inc., a Minnesota corporation
(the "Company"); (ii) warrants (the "Initial Xmark LP Warrants") which, subject
to certain exercise restrictions contained therein, entitle Xmark LP to purchase
up to an aggregate of 569,325 shares of Common Stock at an exercise price of
$0.28 per share (the "Initial Xmark LP Warrant Shares"), which exercise price is
subject to adjustment as set forth in the Initial Xmark LP Warrants; (iii)
warrants (the "2003 Xmark LP Warrants") which, subject to certain exercise
restrictions contained therein, entitle Xmark LP to purchase an aggregate of up
to 238,125 shares of Common Stock at an exercise price of $1.25 per share (the
"2003 Xmark LP Warrant Shares"), which exercise price is subject to adjustment
as set forth in the 2003 Xmark LP Warrants; and (iv) 44,927 shares (the "Xmark
LP Series D Preferred Shares") of the Company's Series D Convertible Preferred
Stock, par value $0.01 per share (the "Series D Preferred Stock"). Subject to
certain restrictions contained in the Company's Certificate of Designations of
Series D Preferred Stock (the "Certificate of Designations"), each Xmark LP
Series D Preferred Share is convertible into ten shares of Common Stock, for an
aggregate of 449,270 shares of Common Stock (the "Xmark LP Conversion Shares").
Xmark Fund, Ltd., a Cayman Islands exempted company ("Xmark Ltd"), is the holder
of: (i) 904,315 shares of Common Stock (the "Xmark Ltd Shares," and together
with the Xmark LP Shares, the "Shares"); (ii) warrants (the "Initial Xmark Ltd
Warrants," and together with the Initial Xmark LP Warrants, the "Initial
Warrants") which, subject to certain exercise restrictions contained therein,
entitle Xmark Ltd to purchase an aggregate of up to 1,680,675 shares of Common
Stock at an exercise price of $0.28 per share (the "Initial Xmark Ltd Warrant
Shares," and, together with the Initial Xmark LP Warrant Shares, the "Initial
Warrant Shares"), which exercise price is subject to adjustment as set forth in
the Initial Xmark Ltd Warrants; (iii) warrants (the "2003 Xmark Ltd Warrant,"
and together with the 2003 Xmark LP Warrant and the Initial Warrants, the
"Warrants") which, subject to certain exercise restrictions contained therein,
entitle Xmark Ltd to purchase an aggregate of up to 511,875 shares of Common
Stock at an exercise price of $1.25 per share (the "2003 Xmark Ltd Warrant
Shares," and together the 2003 Xmark LP Warrant Shares and the Initial Warrant
Shares, the "Warrant Shares"), which exercise price is subject to adjustment as
set forth in the 2003 Xmark Ltd Warrant; and (iv) 135,234 shares of Series D
Preferred Stock (the "Xmark Ltd Series D Preferred Shares", and, together with
the Xmark LP Series D Preferred Shares, the "Preferred Shares"). Subject to
certain restrictions contained in the Certificate of Designations, each Xmark
Ltd Series D Preferred Share is convertible into ten shares of Common Stock, for
an aggregate of 1,352,340 shares of Common Stock (the "Xmark Ltd Conversion
Shares," and, together with the Xmark LP Conversion Shares, the "Conversion
Shares").
Each of the Warrants, and the Certificate of Designations, provides that in no
event shall such Warrant, or such Preferred Shares, be exercisable for, or
convertible into, shares of Common Stock to the extent that the issuance of
Warrant Shares and/or Conversion Shares thereunder, taking into account the
Shares, would result in the "beneficial ownership" (as defined in Section 13(d)
of the Securities Exchange Act of 1934, as amended, and Regulations 13D-G
thereunder) by Xmark LP, Xmark Ltd, or their affiliates, of more than 9.99% of
the Common Stock (the "Issuance Limitation"). Such Issuance Limitation may be
waived by Xmark LP and/or Xmark Ltd upon 61 days written notice to the Company.
The Issuance Limitation with respect to the Initial Warrants was waived on
December 30, 2003. As a result of that waiver, the Issuance Limitation with
respect to the 2003 Warrants and the Conversion shares is currently ineffective.
Xmark Asset Management, LLC, ("XAM"), a New York limited liability company
formerly known as Brown Simpson Asset Management, LLC, serves as investment
manager for each of Xmark LP and Xmark Ltd. In such capacity, XAM possesses the
power to vote and direct the disposition of all securities held by Xmark LP and
Xmark Ltd. Thus, as of December 31, 2003, for the purposes of Reg. Section
240.13d-3, XAM may be deemed to beneficially own 6,394,774 shares of Common
Stock, or 25.7% of the Common Stock deemed issued and outstanding as of that
date.
The total number of shares of Common Stock beneficially owned by XAM, including
Warrant Shares and Conversion Shares is 6,394,774, or 25.7% of the outstanding
shares of Common Stock as of November 10, 2003 (based on the information
provided in the Company's Form 10-Q for the quarterly period ended September 30,
2003). This does not include 20,000 shares of Common Stock and Warrants to
acquire 533,334 shares of Common Stock owned by certain employees of XAM, which
were distributed by XAM to these employees in December, 2003 pursuant to a
letter agreement. XAM disclaims beneficial ownership of the securities held by
these employees. These total share numbers do include 30,000 shares of Common
Stock and Warrants to acquire 266,666 shares of Common Stock (of which 166,666
were subject to an Issuance Limitation which became ineffective upon the
December 30, 2003 waiver of the Issuance Limitation described above) owned by
Sabbatical Ventures, LLC, a Delaware limited liability company controlled by
Mitchell D. Kaye. Mr. Kaye is Manager of XAM. XAM acquired these shares of
Common Stock and the Warrants to acquire these shares of Common Stock that were
distributed to its employees pursuant to an Advisory Agreement, dated as of
January 15, 2003.
Item 1. Security and Issuer.
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This statement relates to the common stock, par value $0.01 per share
("Common Stock"), of Antares Pharma, Inc., a Minnesota corporation (the
"Company"). The Company has principal executive offices located at 707 Eagleview
Boulevard, Suite 414, Exton, Pennsylvania 19314.
Item 2. Identity and Background.
-----------------------
The person filing this statement is Xmark Asset Management, LLC, a New
York limited liability company, formerly known as Brown Simpson Asset
Management, LLC ("XAM"). The business address of XAM is 152 West 57th Street,
21st Floor, New York, New York 10019.
XAM serves as the investment manager for Xmark Fund, L.P., a Delaware
limited partnership ("Xmark LP"), Xmark Fund, Ltd., a Cayman Islands exempt
company ("Xmark Ltd") as well as various other private investment funds (the
"Funds"). Xmark LP, Xmark Ltd and the Funds are engaged in the investment in
personal property of all kinds, including but not limited to capital stock,
depository receipts, investment companies, mutual funds, subscriptions,
warrants, bonds, notes, debentures, options and other securities of whatever
kind and nature.
Mitchell D. Kaye, whose business address is c/o Xmark Asset
Management, LLC, 152 West 57th Street, 21st Floor, New York, New York 10019, is
the Chief Investment Officer of Xmark LP and Xmark Ltd and the Manager of XAM.
XAM has never been convicted in any criminal proceeding (excluding
traffic violations or similar misdemeanors), nor has he been a party to any
civil proceeding commenced before a judicial or administrative body of competent
jurisdiction as a result of which he was or is now subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws. XAM is a New York limited liability company.
Mr. Kaye has never been convicted in any criminal proceeding
(excluding traffic violations or similar misdemeanors), nor has he been a party
to any civil proceeding commenced before a judicial or administrative body of
competent jurisdiction as a result of which he was or is now subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws. Mr. Kaye is a citizen of the United
States.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Pursuant to a Securities Purchase Agreement, dated as of July 12,
2002, by and among the Company, Xmark LP, Xmark Ltd and certain other parties
thereto (the "2002 Purchase Agreement"): (i) on July 12, 2002, Xmark LP and
Xmark Ltd purchased $40,827.50 and $134,172.50, respectively, in principal
amount of the Company's 10% Secured Convertible Debentures, due July 3, 2003
(the "Initial 2002 Debentures"); (ii) on July 26, 2002, Xmark LP and Xmark Ltd
purchased an additional $40,827.50 and $134,172.50, respectively, in principal
amount of the Company's 10% Secured Convertible Debentures, due July 26, 2003
(the "Additional 2002 Debentures"); and (iii) on October 15, 2002, Xmark LP and
Xmark Ltd purchased $34,995 and $115,005, respectively, in principal amount of
the Company's 10% Secured Convertible Debentures, due October 15, 2003 (the
"October 2002 Debentures," and together with the Initial 2002 Debentures, and
the Additional 2002 Debentures, the "2002 Debentures"). Subject to certain
restrictions contained in the 2002 Debentures, the holders of the 2002
Debentures had the right, at any time, to convert principal and accrued interest
on the 2002 Debentures into Common Stock. The 2002 Debentures were convertible
into shares of Common Stock at a conversion price per share equal to the lower
of $2.50 or 75% of the average of the three lowest intraday prices of the Common
Stock, as reported on the Nasdaq SmallCap Market. All funds used by Xmark LP and
Xmark Ltd to purchase or acquire the 2002 Debentures came directly from the
assets of Xmark LP and Xmark Ltd, respectively. As described below in this Item
3, the 2002 Debentures are no longer outstanding.
On January 24, 2003 and January 31, 2003, Xmark LP and Xmark Ltd
loaned the Company an aggregate of approximately $163,267, and $457,757,
respectively. In exchange for such loans, the Company issued Xmark LP and Xmark
Ltd 30-day 8% promissory notes in the aggregate principal amount of $163,267,
and $457,757, respectively (the "Promissory Notes"). All funds used by Xmark LP
and Xmark Ltd to purchase or acquire the Promissory Notes came directly from the
assets of Xmark LP and Xmark Ltd, respectively. As described below in this Item
3, the Promissory Notes are no longer outstanding.
Pursuant to an Advisory Agreement, dated as of January 15, 2003, by
and between XAM and the Company (the "Advisory Agreement"), XAM was issued an
aggregate of: (i) 50,000 shares of restricted Common Stock; and (ii) warrants
(the "Advisory Warrants") to purchase, at any time after the issuance thereof,
up to 800,000 shares of Common Stock. The Advisory Warrants have the following
exercise prices: (i) 300,000 of such Advisory Warrants have an exercise price of
$0.55 per share (which exercise price is subject to adjustment as set forth in
the Advisory Warrants); (ii) 250,000 of such Advisory Warrants have an exercise
price of $1.60 per share (which exercise price is subject to adjustment as set
forth in the Advisory Warrants); (iii) 250,000 of such Advisory Warrant have an
exercise price of $1.82 per share (which exercise price is subject to adjustment
as set forth in the Advisory Warrants). These 50,000 shares of Common Stock and
Advisory Warrants were issued pursuant to the terms of the Advisory Agreement
and not for additional cash consideration. As described below in Item 6, in
December, 2003 XAM distributed these shares and the Advisory Warrants to certain
employees of XAM.
Pursuant to a Debenture and Warrant Agreement, dated as of January 31,
2003, by and among the Company, Xmark LP, and Xmark Ltd (the "Debenture Purchase
Agreement"), in consideration for the surrender of the Promissory Notes: (i)
Xmark LP was issued (A) an 8% Senior Secured Convertible Debenture, due March
31, 2004, in principal amount of $163,267.45 (the "Xmark LP Debenture") and (B)
a warrant (the "Initial Xmark LP Warrant") to purchase, at any time after the
issuance thereof, subject to certain restrictions contained therein, up to
394,350 shares of Common Stock, at an initial exercise price of $0.55 per share
(which exercise price is subject to adjustment as set forth in the Initial Xmark
LP Warrant, and was subsequently adjusted to $0.28 per share); and (ii) Xmark
Ltd was issued (A) an 8% Senior Secured Convertible Debenture, due March 31,
2004, in principal amount of $457,757.47 (the "Xmark Ltd Debenture," and
together with the Xmark LP Debenture, the "Debentures") and (B) a warrant (the
"Initial Xmark Ltd Warrant," and together with the Initial Xmark LP Warrant, the
"Initial Warrants") to purchase, at any time after the issuance thereof, subject
to certain restrictions contained therein, up to 1,105,650 shares of Common
Stock, at an initial exercise price of $0.55 per share (which exercise price is
subject to adjustment as set forth in the Initial Xmark Ltd Warrant, and was
subsequently adjusted to $0.28 per share). Subject to certain restrictions
contained in the Debentures, principal and accrued interest on the Debentures
could be converted, at any time after the issuance thereof, into Common Stock at
a conversion price of $0.50 per share (which conversion price was subject to
adjustment as set forth in the Debentures). Xmark LP and Xmark Ltd acquired the
Debentures and the Initial Warrants in consideration for surrender of the
Promissory Notes.
Pursuant to a separate Debenture and Warrant Agreement, also dated as
of January 31, 2003, by and among the Company, Xmark LP, Xmark Ltd and the other
parties named therein (the "Restated Debenture Purchase Agreement"), in
consideration for the surrender of the 2002 Debentures (including all accrued
interest thereon): (i) Xmark LP was issued (A) an 8% Senior Secured Convertible
Debenture, due March 31, 2004, in principal amount of $121,949.81 (the "Restated
Xmark LP Debenture") and (B) a warrant (the "Additional Xmark LP Warrant") to
purchase, at any time after the issuance thereof, subject to certain
restrictions contained therein, up to 174,975 shares of Common Stock, at an
initial exercise price of $0.55 per share (which exercise price is subject to
adjustment as set forth in the Additional Xmark LP Warrant, and was subsequently
adjusted to $0.28 per share); and (ii) Xmark Ltd was issued (A) an 8% Senior
Secured Convertible Debenture, due March 31, 2004, in principal amount of
$400,766.92 (the "Restated Xmark Ltd Debenture," and together with the Restated
Xmark LP Debenture, the "Restated Debentures") and (B) a warrant (the
"Additional Xmark Ltd Warrant," and, together with the Additional Xmark LP
Warrant, the "Additional Warrants") to purchase, at any time after the issuance
thereof, subject to certain restrictions contained therein, up to 575,025 shares
of Common Stock, at an initial exercise price of $0.55 per share (which exercise
price is subject to adjustment as set forth in the Additional Xmark Ltd Warrant,
and was subsequently adjusted to $0.28 per share). Subject to certain
restrictions contained in the Restated Debentures, principal and accrued
interest on the Restated Debentures could be converted, at any time after the
issuance thereof, into Common Stock at a conversion price of $0.50 per share
(which conversion price is subject to adjustment as set forth in the Restated
Debentures). Xmark LP and Xmark Ltd acquired the Restated Debentures and the
Additional Warrants in consideration for surrender of the 2002 Debentures.
Pursuant to a Purchase Agreement, dated as of July 7, 2003, by and
among the Company, Xmark LP, Xmark Ltd and certain other parties thereto (the
"Purchase Agreement"), on July 8, 2003: (i) Xmark LP purchased (A) 317,500
shares of Common Stock at a price of $1.00 per share, and (B) warrants (the
"2003 Xmark LP Warrants") to purchase up to 238,125 shares of Common Stock; and
(ii) Xmark Ltd purchased (A) 682,500 shares of Common Stock at a price of $1.00
per share, and (B) warrants (the "2003 Xmark Ltd Warrants," and together with
the 2003 Xmark LP Warrants, the "2003 Warrants") to purchase up to 511,875
shares of Common Stock. Subject to certain restrictions contained in the 2003
Warrants, the 2003 Warrants are exercisable at any time on or after the date of
issuance thereof at an exercise price of $1.25 per share (subject to certain
exercise price adjustments contained therein). All funds used to purchase or
acquire the securities in connection with the Purchase Agreement came directly
from the assets of Xmark LP and Xmark Ltd.
Pursuant to a Securities Exchange Agreement, dated as of September 12,
2003, by and among the Company, Xmark LP, Xmark Ltd and the other parties named
therein (the "Exchange Agreement"), in consideration for the surrender of the
outstanding portion of the Restated Debentures (including all accrued interest
thereon): (i) Xmark LP (A) was issued 44,927 shares (the "Xmark LP Series D
Preferred Shares") of the Company's Series D Convertible Preferred Stock, par
value $0.01 per share (the "Series D Preferred Stock"), each of which such
shares, subject to certain restrictions contained in the Company's Certificate
of Designations of Series D Preferred Stock (the "Certificate of Designations"),
is convertible into ten shares of Common Stock, for an aggregate of 449,270
shares of Common Stock (the "Xmark LP Conversion Shares"), (B) the exercise
price of the Initial Xmark LP Warrant was reduced from $0.55 to $0.40, and (C)
the exercise price of the Additional Xmark LP Warrant was reduced from $0.55 to
$0.40; and (ii) Xmark Ltd (A) was issued 135,234 shares of the Company's Series
D Preferred Stock (the "Xmark Ltd Series D Preferred Shares," and, together with
the Xmark LP Series D Preferred Shares, the "Preferred Shares"), each of which
such shares, subject to certain restrictions contained in the Certificate of
Designation, is convertible into ten shares of Common Stock, for an aggregate of
1,352,340 shares of Common Stock (the "Xmark Ltd Conversion Shares," and,
together with the Xmark LP Conversion Shares, the "Conversion Shares"), (B) the
exercise price of the Initial Xmark Ltd Warrant was reduced from $0.55 to $0.40,
and (C) the exercise price of the Additional Xmark Ltd Warrant was reduced from
$0.55 to $0.40. Xmark LP and Xmark Ltd acquired the Preferred Shares in exchange
for surrender of the Restated Debentures. Also on September 12, 2003, an
aggregate amount of $300,000 of the Debentures were converted into an aggregate
of 599,998 shares of Common Stock at a conversion price of $0.50 per share.
The Initial Warrants, the Additional Warrants and the 2003 Warrants
and the Certificate of Designations with respect to the Preferred Shares each
provides that in no event shall the Preferred Shares be convertible, or the
Initial Warrants, Additional Warrants or 2003 Warrants be exercisable, to the
extent that the issuance of Common Stock upon such conversion and/or exercise,
would result in the "beneficial ownership" (as defined in Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Regulations 13D-G thereunder)
by Xmark LP, Xmark Ltd or their affiliates, of more than 9.99% of the Common
Stock (the "Issuance Limitation"). Such Issuance Limitation may be waived by
Xmark LP and/or Xmark Ltd upon 61 days written notice to the Company. The
Issuance Limitation with respect to the Initial Warrants and the Additional
Warrants was waived on December 30, 2003. As a result of the waiver, the
Issuance Limitation with respect to the Preferred Shares and the 2003 Warrants
is currently ineffective.
Item 4. Purpose of Transaction.
----------------------
The acquisition of the securities referred to herein is for investment
purposes. Pursuant to the terms of the Purchase Agreement, Xmark Fund LP and
Xmark Fund Ltd have the right to designate one (1) person for nomination to the
Company's Board of Directors (the "Designee"). In connection with the Purchase
Agreement, the Company, Xmark LP, Xmark Ltd, Dr. Jacques Gonella (a director and
principal shareholder of the Company) and Permatech Holdings AG (a principal
shareholder of the Company) entered into a Voting Agreement, dated as of July 7,
2003 (the "Voting Agreement") pursuant to which the Company, Dr. Gonella and
Permatech Holdings AG agreed, among other things, to take all actions within
their respective control to ensure the nomination and election to the Board of
Directors of the Designee.
Other than as set forth above in this Item 4, XAM has no present plans
or intentions which relate to or would result in any of the transactions
required to be described in Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Based upon information derived from the Company's Quarterly Report on
Form 10-Q for the period ended September 30, 2003, as of November 10, 2003 there
were 19,791,296 shares of Common Stock issued and outstanding. As of December
31, 2003, Xmark LP and Xmark Ltd own, in aggregate, 1,296,498 shares of Common
Stock. As of December 31, 2003, based on the December 30, 2003 waiver of the
Issuance Limitation with respect to the Initial Warrants and the Additional
Warrants, Xmark LP and Xmark Ltd beneficially own 6,128,108 shares of Common
Stock.
XAM possesses sole power to vote and direct the disposition of all
securities held by Xmark LP and Xmark Ltd. Thus, as of December 31, 2003, for
the purposes of Reg. Section 240.13d-3, XAM, the investment manager for each of
Xmark LP and Xmark Ltd, may be deemed to beneficially own 6,394,774 shares of
Common Stock, or 25.7% of the shares of Common Stock deemed issued and
outstanding as of that date. Such amount includes 30,000 shares of Common Stock
and warrants to acquire 266,666 shares of Common Stock owned by Sabbatical
Ventures, LLC, a limited liability controlled by Mitchell D. Kaye. Such amount
does not include 20,000 shares of Common Stock and Warrants to acquire 533,334
shares of Common Stock owned by certain employees of XAM, which were distributed
by XAM to these employees in December, 2003. In addition, XAM expressly
disclaims beneficial ownership of the Common Stock beneficially owned by the
other parties to the Voting Agreement.
Between July 8, 2003 and 60 days prior to December 31, 2003, Xmark LP
and Xmark Ltd sold an aggregate of 191,500 shares of Common Stock in open market
transactions. As a result of the Issuance Limitation then in effect, XAM's
beneficial ownership did not change due to such transactions.
In addition to the transactions described above, the following table
details the transactions during the 60 days prior to December 31, 2003 in Common
Stock, or securities convertible into, exercisable for or exchangeable for
Common Stock, by XAM or any person or entity controlled by XAM or any person or
entity for which XAM possesses voting or investment control over the securities
thereof (each of which was effected in an ordinary brokerage transaction).
I. Xmark LP
-----------
(Purchases)
Date Quantity Price Per Share
---- -------- ---------------
NONE
(Sales)
Date Quantity Price Per Share
---- -------- ---------------
November 6, 2003 3,778 $1.45
November 7, 2003 2,519 $1.49
November 11, 2003 252 $1.39
November 12, 2003 252 $1.37
November 13, 2003 3,276 $1.42
November 14, 2003 1,259 $1.50
November 17, 2003 1,259 $1.48
November 19, 2003 10,327 $1.53
November 20, 2003 6,045 $1.53
November 28, 2003 2,519 $1.26
December 9, 2003 1,259 $1.25
II. Xmark Ltd
-------------
(Purchases)
Date Quantity Price Per Share
---- -------- ---------------
NONE
(Sales)
Date Quantity Price Per Share
---- -------- ---------------
November 6, 2003 11,222 $1.45
November 7, 2003 7,481 $1.49
November 11, 2003 748 $1.39
November 12, 2003 748 $1.37
November 13, 2003 9,724 $1.42
November 14, 2003 3,741 $1.50
November 17, 2003 3,741 $1.48
November 19, 2003 30,673 $1.53
November 20, 2003 17,955 $1.53
November 28, 2003 7,481 $1.26
December 9, 2003 3,741 $1.25
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
----------------------------------------------------------------------
In connection with the purchase of the 2002 Debentures, in addition to
the 2002 Purchase Agreement, Xmark LP and Xmark Ltd entered into: (i) a
Registration Rights Agreement, dated July 12, 2002, pursuant to which, among
other things, the Company, Xmark Fund LP, Xmark Fund Ltd and certain other
parties agreed to the terms pursuant to which the Company agreed to register the
shares of Common Stock issuable upon conversion of the 2002 Debentures for
resale by the filing of a registration statement with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, as well
as perform various other obligations and agreements related to such
registration; and (ii) a Security Agreement, dated July 12, 2002 (the "Initial
Security Agreement"), pursuant to which, among other things, the Company granted
the parties named therein a security interest in substantially all of the assets
of the Company to secure the Company's payment obligations under the debentures
issued pursuant to the 2002 Purchase Agreement. In addition, the Company issued
to Xmark LP and Xmark Ltd the 2002 Debentures.
In connection with the purchase of the Debentures and the Restated
Debentures, in addition to the Debenture Purchase Agreement and the Restated
Debenture Purchase Agreement, Xmark LP and Xmark Ltd entered into: (i) a
Registration Rights Agreement, dated January 31, 2003, pursuant to which, among
other things, the Company, Xmark Fund LP, Xmark Fund Ltd and certain other
parties agreed to the terms pursuant to which the Company agreed to register the
shares of Common Stock issuable upon conversion of the Debentures and the
Restated Debentures, and the shares of Common Stock issuable upon exercise of
the Initial Warrants and the Additional Warrants, for resale by the filing of a
registration statement with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, as well as perform various other
obligations and agreements related to such registration; and (ii) an Amended and
Restated Security Agreement, dated January 31, 2003, which such agreement
amended and restated to Initial Security Agreement, pursuant to which, among
other things, the Company granted the parties named therein a security interest
in substantially all of the assets of the Company to secure the Company's
payment obligations under the debentures issued pursuant to the Debenture
Purchase Agreement and the Restated Debenture Purchase Agreement. In addition,
the Company issued to Xmark LP and Xmark Ltd the Debentures, the Restated
Debentures, the Initial Warrants and the Additional Warrants.
In addition, pursuant to the terms of each of the Debenture Purchase
Agreement and the Restated Debenture Agreement, the Company agreed, among other
things, to: (i) solicit proxies from the shareholders of the Company to vote in
favor of the approval of the issuance of shares of Common Stock issuable upon
conversion of the Debentures and the Restated Debentures in connection with the
transactions contemplated by the Debenture Purchase Agreement and the Restated
Debenture Purchase Agreement, greater in the aggregate than 19.99% of the number
of shares of Common Stock outstanding prior to the consummation of the
transactions contemplated by the Debenture Purchase Agreement and the Restated
Debenture Purchase Agreement; and (ii) cause the board of directors of the
Company to recommend to the stockholders that they approve such proposal.
Additionally, the Company granted each of the parties to the Debenture Purchase
Agreement and the Restated Debenture Purchase Agreement, the right, for a period
expiring on January 31, 2005, to participate (as a purchaser and not as a
seller) in any proposed sale by the Company of any equity security or any
security which is convertible into or exercisable for any equity security.
In connection with the Advisory Agreement, XAM agreed to act as a
non-exclusive financial advisor to the Company. The term of the Advisory
Agreement commenced on January 15, 2003 and the agreement may be terminated by
either party for any reason upon 10 days advance written notice. In connection
with the Advisory Agreement, XAM was issued 50,000 shares of restricted Common
Stock and the Advisory Warrants to acquire 800,000 shares of Common Stock, as
described in Item 3 above. In addition, the Company agreed to reimburse XAM for
reasonable out-of-pocket expenses incurred by XAM in providing services under
the Advisory Agreement and, subject to certain exceptions, to indemnify XAM and
its affiliates in connection with services provided under the Advisory
Agreement. In December, 2003, the securities held by XAM were distributed by XAM
to certain of its employees.
In connection with the July 2003 purchase of the 1,000,000 shares of
Common Stock and the 2003 Warrants, in addition to the Purchase Agreement, Xmark
LP and Xmark Ltd entered into: (i) a Registration Rights Agreement, dated July
7, 2003, pursuant to which, among other things, the Company, Xmark Fund LP,
Xmark Fund Ltd and certain other parties agreed to the terms pursuant to which
the Company agreed to register the shares of Common Stock purchased under the
Purchase Agreement and the shares of Common Stock issuable upon conversion of
the 2003 Warrants for resale by the filing of a registration statement with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, as well as perform various other obligations and agreements related to
such registration; and (ii) the Voting Agreement, pursuant to which, among other
things, the Company, Dr. Gonella and Permatech Holdings AG agreed to take all
actions within their receptive control to ensure the nomination and election to
the Board of Directors of the Designee. In addition, the Company issued to Xmark
LP and Xmark Ltd the 2003 Warrants. XAM expressly disclaims beneficial ownership
of the Common Stock beneficially owned by the other parties to the Voting
Agreement.
The descriptions of the transactions and agreements set forth in this
Amendment No. 1 to Schedule 13D are qualified in their entirety by reference to
the complete agreements governing such matters, each of which are incorporated
by reference to this Schedule 13D as exhibits pursuant to Item 7 hereof.
Except as otherwise described herein, no contracts, arrangements,
understandings or similar relationships exist with respect to the securities of
the Company between XAM and any person or entity.
Item 7. Material to be Filed as Exhibits.
--------------------------------
1. Securities Purchase Agreement, dated as of July 12, 2002, among
Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other
parties identified therein, incorporated by reference to Exhibit 10.29 to the
Current Report on Form 8-K, dated July 17, 2002, filed by Antares Pharma, Inc.
2. Registration Rights Agreement, dated as of July 12, 2002, among
Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other
parties identified therein, incorporated by reference to Exhibit 10.30 to the
Current Report on Form 8-K, dated July 17, 2002, filed by Antares Pharma, Inc.
3. Security Agreement, dated as of July 12, 2002, among Antares
Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other parties
identified therein, incorporated by reference to Exhibit 10.31 to the Current
Report on Form 8-K, dated July 17, 2002, filed by Antares Pharma, Inc.
4. Form of Secured Convertible Debenture, dated July 12, 2002,
issued by Antares Pharma, Inc. to Xmark Fund, LP and Xmark Fund, Ltd.,
incorporated by reference to Exhibit 10.32 to the Current Report on Form 8-K,
dated July 17, 2002, filed by Antares Pharma, Inc.
5. Debenture and Warrant Purchase Agreement, dated as of January 31,
2003, among Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain
other parties identified therein, incorporated by reference to Exhibit 10.39 to
the Current Report on Form 8-K, dated February 12, 2003, filed by Antares
Pharma, Inc.
6. Debenture and Warrant Purchase Agreement, dated as of January 31,
2003, among Antares Pharma, Inc., Xmark Fund, LP, and Xmark Fund, Ltd.,
incorporated by reference to Exhibit 10.40 to the Current Report on Form 8-K,
dated February 12, 2003, filed by Antares Pharma, Inc.
7. Registration Rights Agreement, dated as of January 31, 2003,
among Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other
parties identified therein, incorporated by reference to Exhibit 10.41 to the
Current Report on Form 8-K, dated February 12, 2003, filed by Antares Pharma,
Inc.
8. Amended and Restated Security Agreement, dated as of January 31,
2003, among Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain
other parties identified therein, incorporated by reference to Exhibit 10.42 to
the Current Report on Form 8-K, dated February 12, 2003, filed by Antares
Pharma, Inc.
9. Form of Warrants, dated January 31, 2003, issued by Antares
Pharma, Inc. to each of Xmark Fund, L.P. and Xmark Fund, Ltd., incorporated by
reference to Exhibit 10.43 to the Current Report on Form 8-K, dated February 12,
2003, filed by Antares Pharma, Inc.
10. Form of 8% Senior Secured Convertible Debentures, dated January
31, 2003, issued by Antares Pharma, Inc. to each of Xmark Fund, L.P. and Xmark
Fund, Ltd., incorporated by reference to Exhibit 10.44 to the Current Report on
Form 8-K, dated February 12, 2003, filed by Antares Pharma, Inc.
11. Form of Amended and Restated 8% Senior Secured Convertible
Debentures, dated January 31, 2003, issued by Antares Pharma, Inc. to each of
Xmark Fund, L.P. and Xmark Fund, Ltd., incorporated by reference to Exhibit
10.45 to the Current Report on Form 8-K, dated February 12, 2003, filed by
Antares Pharma, Inc.
12. Form of Promissory Notes, dated January 24, 2003, and January 31,
2003, issued by Antares Pharma, Inc. to each of Xmark Fund, L.P. and Xmark Fund,
Ltd., incorporated by reference to Exhibit 10.46 to the Current Report on Form
8-K, dated February 12, 2003, filed by Antares Pharma, Inc.
13. Purchase Agreement, dated as of July 7, 2003, among Antares
Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other parties
identified therein, incorporated by reference to Exhibit 10.48 to the Current
Report on Form 8-K, dated July 9, 2003, filed by Antares Pharma, Inc.
14. Registration Rights Agreement, dated as of July 7, 2003, among
Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other
parties identified therein, incorporated by reference to Exhibit 10.49 to the
Current Report on Form 8-K, dated July 9, 2003, filed by Antares Pharma, Inc.
15. Voting Agreement, dated as of July 9, 2003, among Antares Pharma,
Inc., Xmark Fund, LP, Xmark Fund, Ltd., Dr. Jacques Gonella and Permatec Holding
AG, incorporated by reference to Exhibit 10.50 to the Current Report on Form
8-K, dated July 7, 2003, filed by Antares Pharma, Inc.
16. Form of Warrants, dated January 31, 2003, issued by Antares
Pharma, Inc. to each of Xmark Fund, L.P. and Xmark Fund, Ltd., incorporated by
reference to Exhibit 10.51 to the Current Report on Form 8-K, dated July 9,
2003, filed by Antares Pharma, Inc.
17. Securities Exchange Agreement, dated as of September 12, 2003
among Antares Pharma, Inc., Xmark Fund, LP, Xmark Fund, Ltd., and certain other
parties identified therein, incorporated by reference to Exhibit 10.57 to the
Current Report on Form 8-K, dated September 15, 2003, filed by Antares Pharma,
Inc.
18. Certificate of Designations, Preferences and Rights of Series D
Convertible Preferred Stock of Antares Pharma, Inc., incorporated by reference
to Exhibit 3.8 to the Current Report on Form 8-K, dated September 15, 2003,
filed by Antares Pharma, Inc.
19. Letter Agreement, dated November 26, 2003, among Brown Simpson
Asset Management, LLC and certain employees of Brown Simpson Asset Management,
LLC.
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.
January 12, 2004
XMARK ASSET MANAGEMENT, LLC
/s/ Mitchell D. Kaye
------------------------------------
Mitchell D. Kaye, Manager
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001).
Exhibit 19
Letter Agreement, dated November 26, 2003, among
Brown Simpson Asset Management, LLC and certain employees of
Brown Simpson Asset Management, LLC.
BROWN SIMPSON ASSET MANAGEMENT, LLC
152 West 57th Street
New York, New York
November 26, 2003
Re: Warrants to Acquire Common Stock of Antares Pharma, Inc.
To the Undersigned
Recipient of Re-issued Warrants:
As you know, Antares Pharma, Inc. (Antares) has issued warrants to acquire its
common stock to Brown Simpson Asset Management, LLC (BSAM) pursuant to an
Advisory Agreement, dated January 15, 2003 between BSAM and Antares. We are
going to request that Antares permit the transfer of these warrants from BSAM to
certain of BSAM's employees before year end. Although this re-issuance of the
warrants will not be a taxable event, you may nevertheless want to consult with
your tax advisor. Our understanding is that the taxable event occurs at the time
the warrant is exercised; once again, you should confirm this with your own tax
advisor.
In order to facilitate this re-issuance, please provide the exact name and
address in which you want the warrant re-issued (Re-issued Warrants). We will
pass that information along to Antares. If you want the warrant issued to a
limited liability company in which you are the sole member, you may provide that
entity's information instead.
There will be certain restrictions and forfeiture provisions imposed on the
Re-issued Warrants, which are set forth below. These restrictions apply to all
warrants issued from time to time by Antares pursuant to the Advisory Agreement,
in addition to the warrants being re-issued in connection with this letter
agreement. In consideration of the distribution of the warrants as contemplated
in this letter agreement, you agree to be bound by the terms and conditions of
this letter agreement.
A. Sales of shares issued upon exercise of the Re-issued Warrants to each of
the undersigned will be limited to no more than 1,000 shares per day. This is
not an average, but rather, an absolute daily cap. If any of the undersigned
violates this limitation, that person (or entity, as the case may be) shall
immediately upon request of BSAM forfeit and surrender to BSAM all remaining
warrants and other securities issued by Antares beneficially or legally owned by
such person (or entity), and BSAM shall have the right to seek, and such person
(or entity) shall be liable to BSAM for, such further damages as BSAM may suffer
resulting from such violation. Each of the undersigned shall provide written
notice to BSAM within two business days after his/her/its exercise of any
Re-issued Warrants and sales of shares issued upon the exercise thereof.
B. If, at any time, BSAM has the opportunity to trade (or exercise before
expiration) the Re-issued Warrants for securities or other property that BSAM
deems to be of equal, greater or better value than the Re-issued Warrants, as
determined by BSAM in its sole discretion, each recipient of Re-issued Warrants,
upon request therefor, must surrender his/its/her Re-issued Warrants to BSAM in
exchange for the new security or property.
C. None of the Re-issued Warrants shall be transferred , in whole or in part,
by any of the undersigned without BSAM's express prior written consent, which
may be given or withheld in its sole discretion.
D. As and when requested, each recipient of Re-issued Warrants agrees to
provide BSAM with its tax identification number and such other information as
may reasonably be requested in order to enable BSAM to comply with all
applicable tax and other laws, rules and regulations.
E. BSAM makes no representations or warranties to you about the securities law
restrictions that may be imposed on the Re-issued Warrants or the shares
issuable upon exercise thereof, or whether any of them has been registered or is
subject to an effective registration statement. As professionals in the
securities and investment industries, each of the undersigned acknowledges that
he (or it) is fully familiar with the restrictions imposed on unregistered and
otherwise restricted securities pursuant to applicable securities laws.
F. Each of the undersigned acknowledges and agrees that (x) the restrictions
imposed in this letter agreement are reasonable and necessary, and that they
have been freely bargained for by the parties, and (y) without such
restrictions, BSAM would not have distributed the Re-issued Warrants, and (z)
the undersigned shall not sell, pledge, hypothecate, transfer, gift, assign any
interest in or otherwise dispose of, any Re-issued Warrants or shares issued
upon the exercise thereof if BSAM advises the undersigned, in its sole
discretion, that such action is prohibited in order for BSAM or the undersigned
to comply with applicable securities laws (including without limitation laws
against insider trading) until further advised in writing by BSAM, in its sole
discretion, that such compliance is no longer necessary. This letter agreement
constitutes the entire agreement of the parties hereto, and supersedes all prior
oral and written agreements concerning the subject matter hereof. This letter
agreement shall be governed by the laws of the State of New York, without regard
to its conflicts of law rules. BSAM and each of the undersigned consent to the
non-exclusive personal jurisdiction of the state and federal courts located in
New York County, New York with respect to this letter agreement. The prevailing
party in a dispute to enforce this letter agreement shall be entitled to
reasonable attorneys' fees and expenses. The terms of this letter agreement are
not revocable without BSAM's prior written consent, which may be given or
withheld in its discretion. This letter agreement shall not be assigned,
amended, waived or modified, except by a writing signed by BSAM and the
applicable undersigned. This letter agreement shall be binding upon and inure to
the benefit of the parties and their respective permitted successors and
assigns. This letter agreement may be executed in one or more counterparts, and
each such counterpart shall be deemed an original. Given the unique nature of
the subject matter of this letter agreement, BSAM shall be entitled to specific
performance, injunctive and other equitable relief in the enforcement of this
letter agreement. For purposes of emphasis and clarification, this letter
agreement applies to all warrants issued from time to time pursuant to the
Advisory Agreement.
Except to the extent necessary for BSAM and the Xmark Funds to comply with
applicable securities laws, paragraphs A, B and C above shall cease to apply
once the Xmark Funds and BSAM cease to own any securities issued by Antares, its
successors or assigns.
Upon receipt of the requested name and address information, and a countersigned
copy of this letter agreement, BSAM will request Antares to re-issue the
warrants as contemplated herein.
Very truly yours,
BROWN SIMPSON ASSET MANAGEMENT, LLC
By:
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Name:
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Title:
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