SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
(RULE 14D-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
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ESPERION THERAPEUTICS, INC.
(Name of Subject Company)
ESPERION THERAPEUTICS, INC.
(Name of Person(s) Filing Statement)
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COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
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29664R 10 6
(CUSIP Number of Class of Securities)
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ROGER S. NEWTON, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ESPERION THERAPEUTICS, INC.
3621 SOUTH STATE STREET
695 KMS PLACE
ANN ARBOR, MI 48108
(734) 332-0506
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
LINDA L. GRIGGS, ESQ.
MORGAN, LEWIS & BOCKIUS LLP
1111 PENNSYLVANIA AVENUE, NW
WASHINGTON, DC 20004
TELEPHONE: (202) 739-5245
FACSIMILE: (202) 739-3001
___ Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
* Explanatory Note. Esperion Therapeutics, Inc. (the "Company") hereby
amends its Solicitation/Recommendation Statement on Schedule 14D-9, filed with
the SEC on January 7, 2004, as previously amended by Amendment No. 1 thereto
filed on January 8, 2004. The Company is amending its Schedule 14D-9 to include
two additional exhibits, and to make corrections to the Summary Compensation
Table that was included in the Rule 14f-1 Information Statement attached as
Annex A to the Schedule 14D-9.
ITEM 3. PAST CONTRACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(b) AGREEMENTS WITH PARENT.
The Merger Agreement. On January 16, 2004, the Company, Purchaser and
Parent amended Section 7.03(d) of the Merger Agreement. A copy of the amendment
is attached hereto as Exhibit (e)(12).
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
On January 13, 2004, the United States Federal District Court for the
District of Connecticut issued an order, a copy of which is attached hereto as
Exhibit (e)(13), approving a settlement between the Company and Durus Life
Sciences Master Fund and the Sacane Group whereby the Company is to be paid
$32.2 million dollars.
ITEM 9. EXHIBITS
EXHIBIT NO. DESCRIPTION
(e)(12) Amendment to Agreement and Plan of Merger, dated
as of January 16, 2004, by and among the
Company, Purchaser and Parent.
(e)(13) Stipulation of Dismissal with Prejudice of the
lawsuit brought by the Company against Durus
Life Sciences Master Fund, Ltd., Durus Capital
Management, LLC, Durus Capital Management
(N.A.), LLC, and Scott Sacane.
ANNEX A
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION.
The following table presents information concerning the compensation
paid to or earned during the last three fiscal years by the Company's Chief
Executive Officer and four most highly compensated executive officers. We refer
to these persons as the Named Executive Officers.
SUMMARY COMPENSATION TABLE
SECURITIES ALL OTHER
NAME AND OTHER ANNUAL UNDERLYING COMPENSATION
PRINCIPAL POSITION YEAR SALARY($) BONUS ($)(1) COMPENSATION OPTIONS (#) ($)(3)
------------------ ---- --------- ------------ ------------ ---------- ----------
Roger S. Newton, Ph.D. 2003 $325,000 $200,000 -- 125,000 $ 6,000
President, 2002 312,500 70,000 -- 400,000 5,000
Chief 2001 250,000 100,000 -- 30,000 --
Executive Officer
Timothy M. Mayleben 2003 255,000 200,000 -- 100,000 6,000
Chief Operating 2002 236,000 36,000 -- 250,000 5,500
Officer and Chief 2001 195,000 48,750 -- 20,000 --
Financial Officer
Brian R. Krause, Ph.D. 2003 179,000 71,600 -- 50,000 6,000
Senior Vice 2002 168,000 15,000 -- 60,000 5,673
President, 2001 110,833 21,000 -- 80,000 --
Preclinical
Research and
Discovery
Jean-Louis H. Dasseux, Ph.D., 2003 183,700 91,850 -- 50,000 3,026
Vice President, 2002 174,900 18,000 35,212(2) 70,000 3,119
Chemistry and 2001 165,000 33,000 -- 10,000 --
Technologies
William F. Brinkerhoff, 2003 166,500 83,250 -- 50,000 5,994
Vice President, 2002 100,615 10,000 -- 75,000 --
Business Development 2001 -- -- -- -- --
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(1) Bonuses are reported in the year earned, even if actually paid in a
subsequent year.
(2) Includes $22,500 in tuition reimbursement and $12,712 in income and
social security taxes paid by the Company in connection with the
tuition.
(3) These amounts represent the Company's matching contributions to the
executive officers' 401(k) plan in the year earned, even if actually
made in a subsequent year.
SIGNATURE
After due 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.
By: /s/ Roger S. Newton, Ph.D.
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Name: Roger S. Newton, Ph.D.
Title: President and Chief Executive
Officer
Dated: January 21, 2004
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(e)(12) Amendment to Agreement and Plan of Merger, dated as of
January 16, 2004, by and among the Company, Purchaser and
Parent.
(e)(13) Stipulation of Dismissal with Prejudice of the lawsuit
brought by the Company against Durus Life Sciences Master
Fund, Ltd., Durus Capital Management, LLC, Durus Capital
Management (N.A.), LLC, and Scott Sacane.