UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
ACHILLION PHARMACEUTICALS, INC.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
0044Q201
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(CUSIP Number)
Mitchell D. Kaye
Xmark Opportunity Partners, LLC
90 Grove Street
Suite 201
Ridgefield, CT 06877
(203) 244-9503
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 16, 2008
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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. 0044Q201
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Opportunity Partners, LLC
20-2052197
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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): AF, 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: United States
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Number of 7. Sole Voting Power: 874,068*
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Shares Beneficially 8. Shared Voting Power:
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Owned by
Each Reporting 9. Sole Dispositive Power: 874,068*
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Person With 10. Shared Dispositive Power:
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 874,068*
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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): 5.6%*
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14. Type of Reporting Person (See Instructions): IA
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* 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 together with Opportunity Ltd and Opportunity LP,
the "Funds"), 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 July 16, 2008, Opportunity LP held 170,954 shares of Common Stock, $0.001
par value per share (the "Common Shares"), of the Company, Opportunity Ltd held
508,875 Common Shares of the Company and JV Partners held 194,239 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 May 7, 2008, there were 15,641,462 Common Shares of the Company
issued and outstanding as of May 1, 2008. As a result of the foregoing, for
purposes of Reg. Section 240.13d-3, Opportunity Partners is deemed to
beneficially own 874,068 Common Shares of the Company, or 5.6% of the Common
Shares of the Company deemed issued and outstanding as of July 16, 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.
Item 3. Source and Amount of Funds or Other Consideration.
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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 4. Purpose of Transaction.
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Item 4 is hereby amended by deleting Item 4 in its entirety and by
substituting the following in lieu thereof:
Opportunity Partners is not clear on the strategic direction
management and the Board of Directors intend to pursue. Opportunity Partners
firmly believes that a sale of the Company, or certain individual
assets/technology, would make more sense than equity dilution. In that respect,
Opportunity Partners believes that management and the Board of Directors should
immediately engage a qualified investment bank to pursue such strategic
alternatives.
On July 11, 2008, Mitchell D. Kaye, Chief Executive Officer of Xmark
Capital Partners, LLC, the Managing Member of Opportunity Partners,
electronically transmitted a letter on behalf of the Funds to the Company's
President/Chief Executive Officer and two of its other directors. The
electronically transmitted letter, in pertinent parts, stated:
"(1) Xmark has been the largest accumulator of Achillion
shares during the past 5 quarters (dating back to 2Q07);
(2) not a single insider -- management or members of the
Board -- purchased a single share of Achillion during the
past 12 months;
(3) Achillion shares have declined by over 50% in value
during the time that we have been invested;
(4) management is handsomely compensated and has been
awarded bonuses during a time when the company's common
stock price has suffered and cash is scant;
(5) we disagree with the decision to in-license an
antibiotic compound -- an area in which the company has no
demonstrable track record of development success; and
(6) the company has missed many milestones on which it had
provided specific prior public guidance."
Opportunity Partners also renewed a prior request that it be allowed
to observe the next meeting of the Board of Directors of the Company for the
purpose of "gain[ing] a better understanding of (A) the strategic vision of
management and the Board, and (B) the relationship between management and the
Board." Although the July 11, 2008 electronically transmitted letter requested a
response by 5:00 p.m., July 16, 2008, the Company has not responded in any
fashion to Opportunity Partners' request to observe the next meeting of the
Board of Directors of the Company. Opportunity Partners is further concerned by
the failure of the Company to respond in any fashion to its request.
Opportunity Partners intends to continue to evaluate closely the
performance of the Common Shares of the Company, including, without limitation,
the continued analysis and assessment of the Company's business, assets,
operations, financial condition, capital structure, management and prospects.
Opportunity Partners may, from time to time, evaluate various options in order
to influence the performance of the Company and the activities of its Board of
Directors. Depending on various factors, Opportunity Partners may take such
actions on behalf of the Funds as it deems appropriate, including, without
limitation, (i) engaging in further discussions with management and/or the Board
of Directors, (ii) communicating with other shareholders, (iii) making proposals
to the Company concerning the operations of the Company, (iv) purchasing
additional securities of the Company, (v) selling some or all of the securities
of the Company held by the Funds, (v) seeking to make a significant equity
investment in the Company, all in accordance with applicable securities laws,
and/or (vi) formally requesting a seat on the Board of Directors.
Other than as described above in this Item 4 as amended, Opportunity
Partners does not have any 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.
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Item 5 is hereby amended by deleting Item 5 in its entirety and by
substituting the following in lieu thereof:
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 May 7, 2008, there were 15,641,462 Common Shares of the Company
issued and outstanding as of May 1, 2008.
As of July 16, 2008, Opportunity LP held 170,954 Common Shares of the
Company, Opportunity Ltd held 508,875 Common Shares of the Company and JV
Partners held 194,239 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. Kaye and
Cavalier 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 874,068 Common Shares of the
Company, or 5.6% of the Common Shares of the Company deemed issued and
outstanding as of July 16, 2008.
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 as of June 26, 2008:
Type of Number of Price per
Date Transaction Shares Security Type Share ($)
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6/30/2008 Purchase 5,000 Common Shares $2.2300
7/08/2008 Sale 50,000 Common Shares $2.2000
7/15/2008 Purchase 1,000 Common Shares $2.1140
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.
July 18, 2008 XMARK OPPORTUNITY PARTNERS, LLC
By: XMARK CAPITAL PARTNERS, LLC
its Managing Member
By: /s/ Mitchell D. Kaye
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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).