SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Esperion Therapeutics, Inc
(Name of Issuer)
Common Stock, $.01 Par Value Per Share
(Title of Class of Securities)
29664R106
(CUSIP Number)
Durus Life Sciences Master Fund Ltd.
c/o International Fund Services (Ireland) Limited
3rd Floor, Bishops Square
Redmonds Hill
Dublin 2, Ireland
Attention: Susan Byrne
(Name, address and telephone number of person
authorized to receive notices and communications)
September 2, 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 that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 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 remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act
of 1934 ("Exchange Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Exchange Act
(however, see the Notes).
(Page 1 of 5 Pages)
CUSIP No. 29664R106 13D Page 2 of 5 Pages
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(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
DURUS LIFE SCIENCES MASTER FUND LTD.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS **
WC, OO
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
CAYMAN ISLANDS
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NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES --------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
9,370,000
OWNED BY --------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING --------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
9,370,000
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH Reporting Person
9,370,000
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(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
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(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
27.9%
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(14) TYPE OF Reporting Person **
OO
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** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 29664R106 13D Page 3 of 5 Pages
Item 1. Security and Issuer.
This statement relates to the shares of common stock, par value of $.01 per
share (the "Shares"), of Esperion Therapeutics, Inc. (the "Issuer"). The
Issuer's principal executive offices are located at 3621 South State Street, 695
KMS Place, Ann Arbor, Michigan 48108.
Item 2. Identity and Background.
(a) This Schedule 13D is being filed by Durus Life Sciences Master
Fund Ltd., a Cayman Islands exempted company (the "Reporting Person"), to report
beneficial ownership resulting from transactions that have previously been
reported on a Schedule 13D filed July 29, 2003 and amended August 1, 2003, by
Durus Capital Management, LLC, the Reporting Person's portfolio manager (the
"Portfolio Manager"), and Scott Sacane, the managing member thereof. No new
transactions are reported herein.
(b) The address of the Reporting Person's principal office is c/o
International Fund Services (Ireland) Limited, 3rd Floor, Bishops Square,
Redmonds Hill, Dublin 2, Ireland.
(c) The Reporting Person's principal business is that of master
investment fund.
(d) The Reporting Person has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) The Reporting Person has not, during the last five years, been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and, as a result of such proceeding, was, or is 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.
(f) The Reporting Person is a Cayman Islands exempted company.
Item 3. Source and Amount of Funds and Other Consideration.
The net investment cost (including commissions, if any) of the Shares reported
herein is approximately $97,495,538.57. The Shares beneficially owned by the
Reporting Person were acquired with working capital of the Reporting Person and
on margin.
Item 4. Purpose of the Transaction.
The Shares reported herein were acquired for the Reporting Person by the
Portfolio Manager. The Reporting Person acquired and continues to hold such
Shares for investment purposes, with no intention to influence or change the
management or other affairs of the Issuer. The Reporting Person is currently in
discussions with the Issuer concerning matters relating to the Reporting
Person's ownership of Shares. Except as otherwise indicated herein, the
Reporting Person currently has no plans or proposals that relate to any of the
matters described in subparagraphs (a) through (j) of Item 4 to Schedule 13D.
CUSIP No. 29664R106 13D Page 4 of 5 Pages
Item 5. Interest in Securities of the Issuer.
Introductory Note. The Reporting Person is party to a portfolio management
agreement, dated February 2002, by and among itself, the Portfolio Manager and
Durus Life Sciences International Fund Ltd. (the "Portfolio Management
Agreement"). Pursuant to the Portfolio Management Agreement, which is terminable
at any time for cause or in the event of bankruptcy or insolvency of any of the
parties, or upon 30 days notice, the Portfolio Manager manages investments for
the Reporting Person. In that capacity, the Portfolio Manager and Scott Sacane,
its managing member, have voting and dispositive power with respect to
securities held by the Reporting Person, and also have the right to receive and
power to direct the receipt of dividends from, and proceeds from the sale of,
the Shares reported herein. A new board of directors for the Reporting Person
was elected on September 2, 2003 (the date of this filing) and the new board of
directors has instructed the Portfolio Manager to no longer take such actions on
behalf of the Reporting Person. The Reporting Person may be deemed to share
beneficial ownership of the Shares reported herein with the Portfolio Manager
and Mr. Sacane, and such parties may be considered a "group" within the meaning
of Section 13(d)(3) of the Exchange Act. The information required by
subparagraphs (a) through (e) of this Item 5 with respect to the Portfolio
Manager and Mr. Sacane has been previously reported by such persons on a
Schedule 13D filed July 29, 2003 and amended on August 1, 2003.
(a) As of October 28, 2003, the Reporting Person beneficially owned
9,370,000 Shares, representing 27.9% of the Issuer's outstanding Shares. The
percentage of Shares reported herein is based upon the 33,577,270 Shares
reported on the Issuer's Form 10-Q/A for the period ending June 30, 2003 to be
outstanding as of August 8, 2003, which is the most recently available filing
with the SEC containing information about the number of outstanding Shares of
the Issuer.
(b) The Reporting Person has shared voting and dispositive power
over the 9,370,000 Shares reported herein.
(c) Not applicable.
(d) See the Introductory Note to this Item 5.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
On July 29, 2003, the Portfolio Manager and certain of its
affiliates entered into a Voting and Transfer Restriction Agreement with the
Issuer. The Agreement restricts the voting rights of such parties and the manner
in which they and their affiliates and associates can transfer the Shares of the
Issuer's common stock over which they and their affiliates and associates have
claimed beneficial ownership.
Item 7. Materials to be Filed as Exhibits.
A copy of the Voting and Transfer Restriction Agreement referenced
in Item 6 hereof is attached as Exhibit 1 hereto.
CUSIP No. 29664R106 13D Page 5 of 5 Pages
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
DATED: October 30, 2003
Durus Life Sciences Master Fund Ltd.
By: /s/ LESLIE L. LAKE
--------------------------------
Name: Leslie L. Lake
Title: Director
Exhibit 1
VOTING AND TRANSFER RESTRICTION AGREEMENT
This Voting and Transfer Restriction Agreement dated July 29, 2003 is
by and among Esperion Therapeutics, Inc., a Delaware corporation (the
"Company"), Scott Sacane ("Sacane"), Durus Capital Management, LLC and Durus
Capital Management (NA), LLC (together, "Durus," and together with Sacane,
referred to herein as the "Sacane Group").
RECITALS
WHEREAS, as of the date hereof, the Sacane Group has reported that it is the
beneficial owner (as such term is defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of 9,726,900 shares of
the Company's common stock, par value $0.001 per share (the "Common Stock");
WHEREAS, the Sacane Group has acquired shares of Common Stock in an amount that
would cause the Sacane Group to be an Acquiring Person, as such term is defined
in the Company's Rights Agreement, dated April 18, 2002, and amended by
Amendment No. 1 dated November 26, 2002 (the "Rights Agreement"), but for the
good faith determination by the Company's Board of Directors that such
acquisition of Common Stock was inadvertent and without any intention of
changing or influencing control of the Company;
WHEREAS, the Board of Directors has determined in good faith to amend the Rights
Agreement so as to exclude the Sacane Group from the definition of Acquiring
Person unless and until the Sacane Group becomes the beneficial owner of more
than 33% of the Company's outstanding Common Stock as set forth in the amended
Rights Agreement; and
WHEREAS, the Company and the Sacane Group desire to establish in this Agreement
certain conditions of the Sacane Group's relationship with the Company.
AGREEMENT
NOW THEREFORE, the parties hereto, in consideration of the mutual covenants and
agreements contained herein and intending to be legally bound, hereby agree as
follows:
Article I--Representations and Warranties
Section 1.01. Representations and Warranties of the Sacane Group. The Sacane
Group represents and warrants to the Company, as of the date hereof, as follows:
(a) The execution, delivery and performance by the Sacane Group of this
Agreement and the consummation by the Sacane Group of the transactions
contemplated by this Agreement are within its corporate powers and have been
duly authorized by all necessary corporate action on its part. This Agreement
constitutes a legal, valid and binding agreement of the Sacane Group enforceable
against the Sacane Group in accordance with its terms (i) except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers, and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity);
(b) The execution, delivery and performance of this Agreement by the
Sacane Group does not and will not contravene or conflict with or constitute a
default under the Sacane Group's relevant formation and operating documents;
(c) The Sacane Group "beneficially owns" (as such term is defined in
Rule 13d-3 under the Exchange Act) 9,726,900 shares of Common Stock and neither
the Sacane Group, nor any "Affiliate" or "Associate" (as such terms are defined
in Rule 12b-2 under the Exchange Act), owns any other Voting Securities (as
defined in Section 2.01); and
(d) The Sacane Group has acquired beneficial ownership of the Voting
Securities with a "passive intent" (as used in Rule 13d-1(c) under the Exchange
Act); that is, with no purpose, intent or effect of controlling the Company or
changing or influencing the control of the Company, or in connection with or as
a participant in any transaction having that purpose, intent or effect. The
acquisition by the Sacane Group of beneficial ownership of more than 25% of the
Company's outstanding Voting Securities was inadvertent.
Section 1.02. Representations and Warranties of the Company. The Company
represents and warrants to the Sacane Group as follows:
(a) As of the date hereof, the execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the
transactions contemplated by this Agreement are within its corporate powers and
have been duly authorized by all necessary corporate action on its part. This
Agreement constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms (i) except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and (ii) subject to
the limitations imposed by general equitable principles (regardless of whether
such enforceability is considered in a proceeding at law or in equity); and
(b) As of June 30, 2002, the Company had outstanding 29,480,766 shares
of Common Stock.
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Article II--Term of Agreement
Section 2.01. Term. The term (the "Term") of this Agreement shall commence on
the date hereof and shall continue until the date on which the Sacane Group
beneficially owns less than twenty percent (20%) of Company's outstanding Voting
Securities. For purposes of this Agreement, the term "Voting Securities" shall
mean any securities entitled to vote generally on matters required to be
presented for a vote by the stockholders of the Company, or any direct or
indirect rights or options to acquire any such securities or any securities
convertible or exercisable into or exchangeable for such securities.
Article III--Voting and Standstill Provisions
Section 3.01. Restrictions on Voting Securities. For the Term of this Agreement,
the Sacane Group agrees that any and all of the Voting Securities beneficially
owned by the Sacane Group that represent more than 20% of the Company's
outstanding Voting Securities shall be voted by the Sacane Group in proportion
to the vote(s) cast by all of the other stockholders of the Company who
beneficially own Voting Securities other than the Sacane Group.
Section 3.02. Restrictions on Certain Actions by the Sacane Group. Subject to
Article IV of this Agreement, during the Term, the Sacane Group covenants that
it will not, and will cause each of its Affiliates and Associates not to, singly
or as part of a partnership, limited partnership, syndicate or other group (as
those terms are used in Section 13(d)(3) of the Exchange Act), directly or
indirectly:
(a) acquire beneficial ownership of more than 33% of the Company's
outstanding Voting Securities;
(b) make, or in any way participate in any "solicitation" of "proxies"
to vote (as such terms are defined in Rule 14a-1 under the Exchange Act),
solicit any consent or communicate with or seek to advise or influence any
person or entity with respect to the voting of any Voting Securities or become a
"participant" in any "election contest" (as such terms are defined or used in
Rule 14a-11 under the Exchange Act) with respect to the Company;
(c) form, join or encourage the formation of, any new "person" within
the meaning of Section 13(d)(3) of the Exchange Act with respect to any Voting
Securities;
(d) deposit any Voting Securities into a voting trust or, other than as
set forth in this Agreement, subject any such Voting Securities to any
arrangement or agreement with respect to the voting thereof;
(e) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to the Company as
described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce
any other person to initiate any stockholder proposal;
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(f) seek election to or seek to place a representative on the Board of
Directors of the Company or, except with the approval of management of the
Company, seek the removal of any member of the Board of Directors of the
Company;
(g) except with the approval of management of the Company, call or seek
to have called any meeting of the stockholders of the Company;
(h) act to seek or control, disrupt or influence the management,
policies or affairs of the Company, except with the approval of management of
the Company;
(i) make any public announcement, public comment, public statement or
public proposal whatsoever with respect to, any form of business combination
transaction involving the Company, including, without limitation, a merger,
exchange offer or liquidation of the Company's assets, or any restructuring,
recapitalization or similar transaction with respect to the Company; or
(j) instigate or encourage any third party to do any of the foregoing.
Article IV--Transfer Restrictions
Section 4.01. Transfer Restrictions.
(a) For the Term of this Agreement, the Sacane Group covenants that,
without the prior written consent of the Company, the amount of Voting
Securities sold or otherwise disposed of by the Sacane Group or its Affiliates
or Associates in any three-month period shall not exceed the greater of (a) one
percent (1%) of the outstanding shares of Common Stock as shown by the most
recent report or statement published by the Company; (b) the average weekly
reported volume of trading in the Company's Common stock on all national
securities exchanges and/or reported through the automated quotation system of a
registered securities association during the four calendar weeks preceding the
notice required by Rule 144(h) under the Securities Act of 1933, as amended, or
if no such notice is required, the date of receipt of the order to execute the
transaction by the broker or the date of execution of the transaction directly
with a market maker; or (c) the average weekly volume of trading in such
securities reported through the consolidated transaction reporting system
contemplated by Rule 11Aa3-1 under the Exchange Act during the four-week period
specified in subsection (b) of this Section 4.01. Any transfers by members,
partners or other such Affiliates or Associates of the Sacane Group of shares
received by such persons from the Sacane Group or its Affiliates or Associates
as a distribution shall be aggregated for the purposes of calculating the
transfer limitations pursuant to this Section 4.01 for a period of two years
after the date of the distribution.
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(b) The Sacane Group covenants that it will not transfer any shares of
the Voting Securities that it beneficially owns before October 29, 2003.
Section 4.02. Reporting Obligations. The Sacane Group covenants to comply with
all of the applicable reporting obligations under Section 13 of the Exchange Act
and the rules promulgated thereunder and, as soon as reasonably practicable, the
applicable reporting obligations under Section 16 of the Exchange Act and the
rules promulgated thereunder. In addition, the Sacane Group covenants that it
will deliver to the Company a copy of all beneficial ownership reports that are
required to be filed pursuant to Sections 13 and 16 of the Exchange Act and the
rules promulgated thereunder in accordance with the notice provisions herein,
within three (3) business days of the date of the filing of such report with the
Securities and Exchange Commission.
Article V--Miscellaneous
Section 5.01. Enforcement. The Sacane Group, on the one hand, and the Company,
on the other, acknowledge and agree that irreparable damage would occur if any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically its provisions in any court of the United States or
any state having jurisdiction, this being in addition to any other remedy to
which they may be entitled at law or in equity.
Section 5.02. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the transactions contemplated
by such parties and may be amended only by an agreement in writing executed by
both parties.
Section 5.03. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of the
parties that they would have executed the remaining provisions without including
any that may be declared unenforceable.
Section 5.04. Headings. Descriptive headings are for convenience only and will
not control or affect the meaning or construction of any provision of this
Agreement.
Section 5.05. Counterparts. For the convenience of the parties, any number of
counterparts of this Agreement may be executed by the parties, and each such
executed counterpart will be an original instrument.
Section 5.06. Notices. All notice, requests, demands and other communications
required or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, facsimile transmission or air courier
guaranteeing overnight delivery:
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(a) if to the Company, to:
Esperion Therapeutics, Inc.
3621 South State Street
695 KMS Place
Ann Arbor, Michigan 48108
Attention: General Counsel
Telephone: (734) 332-0506
Facsimile: (734) 622-8334
with copies to:
Linda Griggs, Esquire
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave, N.W.
Washington, DC 20004
Telephone: (202) 739-3000
Facsimile: (202) 739-3001
or to other such person or address as the Company shall furnish to the Sacane
Group in writing;
(b) if to the Sacane Group, to
Scott Sacane
c/o Durus Capital Management, LLC
20 Marshall Street
Suite 320
Norwalk, Connecticut 06854
Telephone: (203) 899-3100
Facsimile: (203) 899-3125
with copies to:
William Natbony, Esq.
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, New York 10022
Telephone: (212) 940-8930
Facsimile: (212) 940-8994
or to other such persons or address as the Sacane Group shall furnish to the
Company in writing.
All notices, requests, demands and other communications shall be deemed to have
been duly given; at the time of delivery by hand, if personally delivered; five
(5) business days after having been deposited in the mail, postage pre-paid, if
mailed; when answered back, if telexed; when received acknowledged, if by
facsimile; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
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Section 5.07. Successors and Assigns. This Agreement shall inure to the
benefit of any successor or assign of the Company.
Section 5.08. Governing Law. This Agreement will be governed and construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to the conflict of laws principles thereof.
[The remainder of the page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first referred to above.
ESPERION THERAPEUTICS, INC.
By: /s/ Roger S. Newton, Ph.D
--------------------------------
Name: Roger S. Newton, Ph.D
Title: President and Chief Executive
Officer
/s/ Scott Sacane
---------------------------------------
Scott Sacane
DURUS CAPITAL MANAGEMENT, LLC
By: /s/ Scott Sacane
--------------------------------
Name: Scott Sacane, Managing Member
DURUS CAPITAL MANAGEMENT (NA), LLC
By: /s/ Scott Sacane
--------------------------------
Name: Scott Sacane, Managing Member
7