Schedule 13d
| Filed by: | XMARK OPPORTUNITY PARTNERS, LLC |
| Subject Company: | ACHILLION PHARMACEUTICALS, INC. |
| Filed as of Date: | 09/04/2008 |
| View Original Filing on Edgar's | |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
(Amendment
No. 2)*
ACHILLION
PHARMACEUTICALS, INC.
(Name of
Issuer)
Common
Stock, par value $0.001 per share
(Title of
Class of Securities)
00448Q201
(CUSIP
Number)
Mitchell
D. Kaye
Xmark
Opportunity Partners, LLC
90 Grove
Street, Suite 201
Ridgefield,
CT 06877
(203)
244-9503
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
August
21, 2008
(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 §§ 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 § 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. 00448Q201
| 1. |
Names of
Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Opportunity Partners, LLC
20-2052197
|
||||
|
2.
(a)
(b)
|
Check the
Appropriate Box if a Member of a Group (See Instructions):
Not
Applicable
|
||||
| 3. | SEC Use Only | ||||
| 4. | Source of Funds (See Instructions): AF, WC | ||||
|
5.
|
Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or
2(e):
Not
Applicable
|
|
|||
| 6. | Citizenship or Place of Organization: United States | ||||
|
Number
of
Shares
Beneficially
Owned by
Each Reporting
Person With
|
|||||
| 7. | Sole Voting Power: |
961,944*
|
|||
| 8. | Shared Voting Power: | ||||
| 9. | Sole Dispositive Power: |
961,944*
|
|||
| 10. | Shared Dispositive Power: | ||||
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person: |
961,944*
|
|||
| 12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares | ||||
| (See Instructions): |
Not
Applicable
|
||||
| 13. | Percent of Class Represented by Amount in Row (11): |
3.6%*
|
|||
|
14.
|
Type of Reporting Person (See Instructions): IA | ||||
* Xmark
Opportunity Partners, LLC ("Opportunity Partners") is the sole member of the
investment manager of Xmark Opportunity Fund, L.P., a Delaware limited
partnership ("Opportunity LP"), and Xmark Opportunity Fund, Ltd., a Cayman
Islands exempted company ("Opportunity Ltd"), and, as such, possesses sole power
to vote and direct the disposition of all securities of Achillion
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), held by
Opportunity LP and Opportunity Ltd. Opportunity Partners is the
investment manager of Xmark JV Investment Partners, LLC, a Delaware limited
liability company ("JV Partners"), and, as such, possesses sole power to vote
and direct the disposition of all securities of the Company held by JV
Partners. David C. Cavalier and Mitchell D. Kaye, the Chief Operating
Officer and Chief Executive Officer, respectively, of Xmark Capital Partners,
LLC, the Managing Member of Opportunity Partners, share voting and investment
power with respect to all securities beneficially owned by Opportunity
Partners.
As of
August 21, 2008, Opportunity LP held 197,995 shares of Common Stock, $0.001 par
value per share (the "Common Shares"), of the Company, Opportunity Ltd held
571,217 Common Shares of the Company and JV Partners held 192,732 Common Shares
of the Company. Based upon information set forth in the Company's
most recent Quarterly Report on Form 10-Q, as filed with the Securities and
Exchange Commission on August 14, 2008, there were 26,376,078 Common Shares of
the Company issued and outstanding as of August 13, 2008. As a result
of the foregoing, for purposes of Reg. Section 240.13d-3, Opportunity Partners
is deemed to beneficially own 961,944 Common Shares of the Company, or 3.6% of
the Common Shares of the Company deemed issued and outstanding as of August 21,
2008. Opportunity Partners' interest in the securities reported
herein is limited to the extent of its pecuniary interest in Opportunity LP,
Opportunity Ltd and JV Partners, if any.
2
Item
3. Source and Amount of Funds
or Other Consideration.
Item 3 is hereby amended by
adding the following at the end thereof:
All funds used to purchase the
Common Shares in the purchase transactions described in Item 5, as amended, on
behalf of the Funds have come directly from the assets of the
Funds. See Item 5 for further information.
Item
5. Interest in Securities of
the Issuer.
Item
5 is hereby amended by deleting Item 5 in its entirety and by substituting the
following in lieu thereof:
As of
August 21, 2008, Opportunity LP held 197,995 Common Shares of the Company,
Opportunity Ltd held 571,217 Common Shares of the Company and JV Partners held
192,732 Common Shares of the Company.
Opportunity
Partners possesses sole power to vote and direct the disposition of all
securities of the Company held by the Funds. Messrs. Cavalier and
Kaye share voting and investment power with respect to all securities
beneficially owned by Opportunity Partners.
As a
result of the foregoing, for purposes of Reg. Section 240.13d-3, Opportunity
Partners is deemed to beneficially own 961,944 Common Shares of the Company, or
3.6% of the Common Shares of the Company deemed issued and outstanding as of
August 21, 2008.
On August
11, 2008, the Company filed with the Securities and Exchange Commission a
Current Report on Form 8-K, wherein it set forth that on August 5, 2008 the
Company entered into a Securities Purchase Agreement pursuant to which it sold
10,714,655 Common Shares of the Company. On August 14, 2008, the
Company filed with the Securities and Exchange Commission a Quarterly Report on
Form 10-Q wherein it set forth that as of August 13, 2008 the Company had
26,376,078 Common Shares outstanding. Accordingly, as of August 5,
2008, Opportunity Partners ceased to be the beneficial owner of more than five
percent of the Common Shares of the Company.
The
following table details all of the transactions in Common Shares of the Company,
or securities convertible into, exercisable for or exchangeable for Common
Shares of the Company, by the persons referenced in Item 2 (each of which were
effected by the Funds in ordinary brokerage transactions), since the filing of
Schedule 13D Amendment No. 1 as of July 16, 2008:
|
Date
|
Type
of
Transaction
|
Number
of Shares
|
Security
Type
|
Price
per Share ($)
|
|
7/23/2008
|
Purchase
|
29,911
|
Common
Shares
|
$2.4858
|
|
7/25/2008
|
Purchase
|
1,000
|
Common
Shares
|
$2.8080
|
|
7/28/2008
|
Purchase
|
1,500
|
Common
Shares
|
$2.7827
|
|
7/29/2008
|
Purchase
|
10,000
|
Common
Shares
|
$2.6844
|
|
7/29/2008
|
Purchase
|
1,500
|
Common
Shares
|
$2.8747
|
|
7/30/2008
|
Purchase
|
20,000
|
Common
Shares
|
$2.5012
|
|
7/31/2008
|
Purchase
|
30,000
|
Common
Shares
|
$2.7061
|
|
8/04/2008
|
Purchase
|
1,000
|
Common
Shares
|
$3.0000
|
|
8/06/2008
|
Sale
|
6,435
|
Common
Shares
|
$2.8300
|
|
8/07/2008
|
Sale
|
1,100
|
Common
Shares
|
$2.8300
|
|
8/21/2008
|
Purchase
|
500
|
Common
Shares
|
$2.9920
|
3
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.
September
3, 2008
|
XMARK
OPPORTUNITY PARTNERS, LLC
|
|||
|
By:
|
XMARK
CAPITAL PARTNERS, LLC,
|
||
|
its
Managing Member
|
|||
|
By:
|
/s/ Mitchell D. Kaye
|
||
|
Name:
|
Mitchell
D. Kaye
|
||
|
Title:
|
Chief
Executive Officer
|
||
Attention: Intentional
misstatements or omissions of fact constitute Federal criminal violations (See
18 U.S.C. 1001).
4
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