SC 14D9/A 1 k82223sc14d9za.txt AMENDMENT NO. 2 TO FORM SC 14D9 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- SCHEDULE 14D-9 (RULE 14D-101) SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 AMENDMENT NO. 2 ----------------- ESPERION THERAPEUTICS, INC. (Name of Subject Company) ESPERION THERAPEUTICS, INC. (Name of Person(s) Filing Statement) ----------------- COMMON STOCK, PAR VALUE $0.001 PER SHARE (Title of Class of Securities) ----------------- 29664R 10 6 (CUSIP Number of Class of Securities) ----------------- 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 -- -- -- -- --
------------------- (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. ------------------------------------- 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.