UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
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)
March 1, 2004
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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: 5,792,853*
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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): 14.5%*
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14. Type of Reporting Person (See Instructions): IA
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* The reporting person is Xmark Asset Management, LLC ("XAM"), a New York
limited liability company (f/k/a Brown Simpson Asset Management, LLC). XAM's
interest in the securities reported herein is limited to its pecuniary interest,
if any, in Xmark Fund, L.P., a Delaware limited partnership ("Xmark LP"), and
Xmark Fund, Ltd., a Cayman Islands exempted company ("Xmark Ltd").
Xmark LP is the holder of: (i) 885,430 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 "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 $1.00 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 (iii) 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 Ltd is the holder of: (i) 2,355,813 shares of Common Stock (the "Xmark Ltd
Shares," and together with the Xmark LP Shares, the "Shares"); (ii) warrants
(the "2003 Xmark Ltd Warrants," and together with the 2003 Xmark LP Warrants,
the "2003 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 $1.00 per share (the "2003 Xmark Ltd
Warrant Shares," and together the 2003 Xmark LP Warrant Shares, the "2003
Warrant Shares"), which exercise price is subject to adjustment as set forth in
the 2003 Xmark Ltd Warrant; and (iii) 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").
Prior to March 1, 2004, Xmark LP was the holder of warrants (the "Initial Xmark
LP Warrants") which, subject to certain exercise restrictions contained therein,
entitled 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"), and Xmark Ltd was the holder of 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,
entitled 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.
Each of the 2003 Warrants, the Initial 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 2003 Warrant Shares, Initial 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.
On March 1, 2004, Xmark LP and Xmark Ltd fully exercised the Initial Warrants
and were issued the Initial Warrant Shares. As a result, on March 1, 2004, Xmark
LP became the holder of an additional 569,325 shares of Common Stock, and Xmark
Ltd became the holder of an additional 1,680,675 shares of Common Stock.
XAM 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 March 1, 2004 for the
purposes of Reg. Section 240.13d-3, XAM may be deemed to beneficially own
5,792,853 shares of Common Stock, or 14.5% 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
2003 Warrant Shares and Conversion Shares is 5,792,853 or 14.5% of the
outstanding shares of Common Stock as of March 1, 2004 (based on information
provided by the Company). This does not include 30,000 shares of Common Stock
and Warrants to acquire 349,999 shares of Common Stock owned by Sabbatical
Ventures, LLC, a Delaware limited liability company ("Sabbatical"). Nor does
this include the 20,000 shares of Common Stock and warrants to acquire 700,001
shares of Common Stock owned by certain employees of XAM. Sabbatical is
controlled by Mitchell D. Kaye. Mr. Kaye is Manager of XAM. XAM disclaims
beneficial ownership of the securities held by these employees and by
Sabbatical. Sabbatical disclaims beneficial ownership of securities beneficially
owned by each of XAM, Xmark LP and Xmark Ltd. XAM acquired these shares of
Common Stock and the warrants to acquire these shares of Common Stock that were
distributed to its employees and to Sabbatical pursuant to an Advisory
Agreement, dated as of January 15, 2003. Mr. Kaye's interest in the securities
reported herein is limited to his pecuniary interest in XAM, Xmark LP, Xmark Ltd
and Sabbatical, if any.
Item 5. Interest in Securities of the Issuer.
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Based upon information provided by the Company, as of March 1, 2004
there were 37,413,746 shares of Common Stock issued and outstanding. As of March
1, 2004, Xmark LP and Xmark Ltd own, in aggregate, 3,241,243 shares of Common
Stock. As of March 1, 2004, based on the December 30, 2003 waiver of the
Issuance Limitation, Xmark LP and Xmark Ltd beneficially own 5,792,853 shares of
Common Stock, inclusive of the aforesaid 3,241,243 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 March 1, 2004, 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 5,792,853 shares of
Common Stock, or 14.5% of the shares of Common Stock deemed issued and
outstanding as of that date. This does not include 30,000 shares of Common Stock
and Warrants to acquire 349,999 shares of Common Stock owned by Sabbatical
Ventures, LLC, a Delaware limited liability company ("Sabbatical"). Nor does
this include the 20,000 shares of Common Stock and warrants to acquire 700,001
shares of Common Stock owned by certain employees of XAM. Sabbatical is
controlled by Mitchell D. Kaye. Mr. Kaye is Manager of XAM. XAM disclaims
beneficial ownership of the securities held by these employees and by
Sabbatical. Sabbatical disclaims beneficial ownership of securities beneficially
owned by each of XAM, Xmark LP and Xmark Ltd. XAM acquired these shares of
Common Stock and the warrants to acquire these shares of Common Stock that were
distributed to its employees and to Sabbatical pursuant to an Advisory
Agreement, dated as of January 15, 2003. Mr. Kaye's interest in the securities
reported herein is limited to his pecuniary interest in XAM, Xmark LP, Xmark Ltd
and Sabbatical, if any.
In addition to the transactions described above, the following table
details the transactions since the filing of Amendment No. 1 to the Schedule 13D
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
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(Purchases)
NONE
(Sales)
Date Quantity Price Per Share
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January 2, 2004 249 $1.05
January 6, 2004 3,486 $1.09
January 7, 2004 498 $1.11
January 8, 2004 1,245 $1.07
January 9, 2004 2,490 $1.10
January 12, 2004 2,988 $1.12
January 13, 2004 747 $1.14
January 20, 2004 3,615 $1.04
January 21, 2004 6,225 $1.06
January 22, 2004 1,745 $1.08
January 27, 2004 49,112 $1.05
January 28, 2004 3,678 $1.16
II. Xmark Ltd
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(Purchases)
NONE
(Sales)
Date Quantity Price Per Share
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January 2, 2004 751 $1.05
January 6, 2004 10,514 $1.09
January 7, 2004 1,502 $1.11
January 8, 2004 3,755 $1.07
January 9, 2004 7,510 $1.10
January 12, 2004 9,012 $1.12
January 13, 2004 2,253 $1.14
January 20, 2004 10,885 $1.04
January 21, 2004 18,775 $1.06
January 22, 2004 5,255 $1.08
January 27, 2004 147,888 $1.05
January 28, 2004 11,077 $1.16
Signature
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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.
March 12, 2004
XMARK ASSET MANAGEMENT, LLC
/s/ Mitchell D. Kaye
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Mitchell D. Kaye, Manager
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001).