Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KN0dHqdgLIj2TJ0PohgBewVaHITcaYx1BXinZZbMBu7caAKR452CRurdzw7Frp/3 CWOnPdQn2Oi8rhVU+/bZbw== 0000851909-08-000011.txt : 20080703 0000851909-08-000011.hdr.sgml : 20080703 20080703165746 ACCESSION NUMBER: 0000851909-08-000011 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20080703 DATE AS OF CHANGE: 20080703 GROUP MEMBERS: ISRAEL A. ENGLANDER GROUP MEMBERS: MILLENNIUM MANAGEMENT LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MiddleBrook Pharmaceuticals, Inc. CENTRAL INDEX KEY: 0001161924 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 522208264 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79326 FILM NUMBER: 08939290 BUSINESS ADDRESS: STREET 1: 20425 SENECA MEADOWS PARKWAY CITY: GERMANTOWN STATE: MD ZIP: 20878 BUSINESS PHONE: (301) 944-6600 MAIL ADDRESS: STREET 1: 20425 SENECA MEADOWS PARKWAY, CITY: GERMANTOWN, STATE: MD ZIP: 20876 FORMER COMPANY: FORMER CONFORMED NAME: ADVANCIS PHARMACEUTICAL CORP DATE OF NAME CHANGE: 20011106 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MILLENNIUM PARTNERS, L.P. CENTRAL INDEX KEY: 0000851909 IRS NUMBER: 133521699 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O MILLENNIUM MANAGEMENT, L.L.C. STREET 2: 666 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10103 BUSINESS PHONE: 2128414000 MAIL ADDRESS: STREET 1: C/O MILLENNIUM MANAGEMENT, L.L.C. STREET 2: 666 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10103 FORMER COMPANY: FORMER CONFORMED NAME: MILLENNIUM PARTNERS L P DATE OF NAME CHANGE: 20000628 SC 13D/A 1 mbrk_sc13d-a4.htm Schedule 13D

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
Under the Securities Exchange Act of 1934

(Final Amendment)

MiddleBrook Pharmaceuticals, Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

596087106

(CUSIP Number)

Simon M. Lorne, Esq.
Millennium Management LLC
666 Fifth Avenue, 8th Floor
New York, New York 10103
(212) 841-4100

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

July 2, 2008

(Date of event which requires filing of this statement)

If the filing person has previously filed a statement on Schedule 13G 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 o .

SCHEDULE 13D

CUSIP No. 596087106

1	NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Millennium Partners, L.P. 13-3521699
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) þ
3	SEC USE ONLY
4	SOURCE OF FUNDS WC, OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) þ
6	CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 2,175,000
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 2,175,000

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,175,000
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.8%
14	TYPE OF REPORTING PERSON PN

SCHEDULE 13D

CUSIP No. 596087106

1	NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Millennium Management LLC 13-3804139
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) þ
3	SEC USE ONLY
4	SOURCE OF FUNDS WC, OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) þ
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 2,175,000
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 2,175,000

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,175,000
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.8%
14	TYPE OF REPORTING PERSON OO

SCHEDULE 13D

CUSIP No. 596087106

1	NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Israel A. Englander
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) þ
3	SEC USE ONLY
4	SOURCE OF FUNDS WC, OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) þ
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 2,175,000
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 2,175,000

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,175,000
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.8%
14	TYPE OF REPORTING PERSON IN

Explanatory Note

Introduction

This Final Amendment to Schedule 13D ("Final Amendment to Schedule 13D") amends Amendment No. 3 to Schedule 13D, dated May 21, 2008 and filed on May 22, 2008 ("Amendment No. 3 to Schedule 13D") by Millennium Partners, L.P., Millenco LLC, Millenium Management LLC and Israel A. Englander, relating to their beneficial ownership of the Common Stock (as defined in Item 1, below), of MiddleBrook Pharmaceuticals, Inc. (the "Issuer").

This Final Amendment to Schedule 13D (i) amends and restates Item 2, Item 3, Item 5, Item 6 and Item 7 and (ii) reflects a material change in the number of shares beneficially owned by each Reporting Person (as defined in Item 2, below) and the percentage of class represented by such ownership since the filing of Amendment No. 3 to Schedule 13D for each Reporting Person. Except for the above-referenced amendments, this Final Amendment to Schedule 13D does not modify any of the information previously reported on Amendment No. 3 to Schedule 13D.

Item 1. Security and Issuer.

The name of the Issuer is MiddleBrook Pharmaceuticals, Inc., a Delaware corporation. The address of the Issuer’s principal executive offices is 20425 Seneca Meadows Parkway, Germantown, Maryland 20876. This Final Amendment to Schedule 13D relates to the Issuer’s common stock, par value $0.01 per share (the "Common Stock").

Item 2. Identity and Background.

(a)-(c), (f). This statement is being filed by Millennium Partners, L.P., a Cayman Islands exempted limited partnership ("Millennium Partners").

Millennium Management LLC, a Delaware limited liability company ("Millennium Management"), is the managing partner of Millennium Partners, and consequently may be deemed to have voting control and investment discretion over securities owned by Millennium Partners. Israel A. Englander ("Mr. Englander") is the managing member of Millennium Management. As a result, Mr. Englander may be deemed to be the beneficial owner of any shares deemed to be beneficially owned by Millennium Management. The foregoing should not be construed in and of itself as an admission by Millennium Management or Mr. Englander as to beneficial ownership of the shares owned by Millennium Partners. Millennium Partners, Millennium Management and Mr. Englander will be collectively referred to as the reporting persons ("Reporting Persons") in this Final Amendment to Schedule 13D.

The business address for Millennium Partners, Millennium Management and Mr. Englander is c/o Millennium Management LLC, 666 Fifth Avenue, New York, New York 10103. Mr. Englander is a United States citizen.

(d) During the last five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) On December 1, 2005, Millennium Management and Mr. Englander, together with Millennium Partners and certain related persons and entities, entered into settlements with the Securities and Exchange Commission ("SEC") and the Attorney General of the State of New York (the ("NYAG") relating to allegations that Millennium Partners had engaged in a pattern of deceptive "market timing" of mutual fund shares in years prior to 2004 and, in the case of the settlement with the NYAG only, had failed to take adequate steps to prevent a trader from engaging in mutual fund "late trading" in violation of firm policy. The parties neither admitted nor denied the allegations or findings (except as to jurisdiction) but consented to the entry of findings. The SEC proceedings are In the Matter of Millennium Partners, L.P., et al. Securities Act Release No. 8639 (December 1, 2005), available at www.sec.gov. Contemporaneously, the NYAG issued an Assurance of Discontinuance relating to the claims and findings of that office.

Neither the Reporting Persons nor any other party admitted or denied any of the allegations or findings in these matters. The remedies included disgorgement by the entities of approximately $148 million of mutual fund trading profits, civil penalties aggregating approximately $32.15 million (with approximately $30 million being paid by Mr. Englander), an administrative order to cease and desist from violations of the antifraud provisions of the Securities Act and the Securities Exchange Act, and prophylactic relief.

Item 3. Source and Amount of Funds or Other Consideration.

The amount of funds used to purchase the 1,275,000 shares of the Issuer’s Common Stock and 900,000 warrants to purchase the Issuer’s Common Stock ("Warrants"), beneficially owned by Millennium Partners was $3,544,172, calculated on an average cost basis, by account. The Issuer’s Common Stock and Warrants to purchase the Issuer’s Common Stock were acquired in the following two transactions: i) pursuant to the securities purchase agreement, dated as of April 9, 2007, between the Issuer and the purchasers therein (including Millennium Partners), Millennium Partners acquired 1,200,000 of the Issuer’s units (consisting of 1,200,000 shares of the Issuer’s Common Stock and 900,000 Warrants to purchase the Issuer’s Common Stock) at $2.36375 per unit, for total consideration of $2,836,500, and (ii) pursuant to the securities purchase agreement, dated as of December 11, 2006, between the Issuer and the purchasers therein (including Millennium Partners), Millennium Partners acquired 2,100,000 shares of the Issuer’s Common Stock at $3.00 per share, for total consideration of $6,300,000. (Note: Each unit acquired in the transaction described in clause (i) above consists of one share of the Issuer’s Common Stock and a Warrant to purchase 0.75 shares of the Issuer’s Common Stock. The Warrants to purchase the Issuer’s Common Stock have a five-year term and an exercise price of $2.27 per share.)

Millennium Partners effects purchases of securities primarily through margin accounts maintained for it with prime brokers, which may extend margin credit to Millennium Partners as and when required to open or carry positions in the margin accounts, subject to applicable margin regulations, stock exchange rules and the prime broker’s credit policies. In such instances, the positions held in the margin accounts are pledged as collateral security for the repayment of debit balances in the accounts.

Item 4. Purpose of Transaction.

The Reporting Persons are engaged in the investment business. In pursuing this business, the Reporting Persons analyze the operations, capital structure and markets of companies, including the Issuer, on a continuous basis through analysis of documentation and discussions with knowledgeable industry and market observers and with representatives of such companies (often at the invitation of management). From time to time, one or more of the Reporting Persons may hold discussions with third parties or with management of such companies in which the Reporting Persons may suggest or take a position with respect to potential changes in the operations, management or capital structure of such companies as a means of enhancing shareholder value. Such suggestions or positions may relate to one or more of the transactions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Exchange Act, including, without limitation, such matters as disposing of or selling all or a portion of the company or acquiring another company or business, changing operating or marketing strategies, adopting or not adopting certain types of anti-takeover measures and restructuring the Issuer’s capitalization or dividend policy.

The Reporting Persons employ the services of a number of portfolio managers, each of whom independently employs a separate and distinct trading strategy. A portion of the securities of the Issuer held by the Reporting Persons are held in accounts of the Reporting Persons managed by portfolio managers who engage in event-, risk- or merger-arbitrage or fundamental strategies.

Except as set forth above, the Reporting Persons do not have any present plans or proposals that relate to or would result in any of the actions required to be described in Item 4 of Schedule 13D. Each of the Reporting Persons may, at any time, review or reconsider its position with respect to the Issuer and formulate plans or proposals with respect to any of such matters, but has no present intention of doing so.

Item 5. Interest in Securities of the Issuer.

(a) As of the date of this filing, Millennium Partners is the beneficial owner of 2,175,000 shares of the Issuer’s Common Stock (consisting of 1,275,000 shares of the Issuer’s Common Stock and 900,000 Warrants to purchase the Issuer’s Common Stock), which represents approximately 3.8% of the outstanding shares of Common Stock. The calculation of the foregoing percentage is on the basis of 56,007,157 shares of the Issuer’s Common Stock outstanding as of April 30, 2008, as disclosed in the Issuer’s Form 10-Q, dated May 14, 2008.

Note: The number of shares of the Issuer’s Common Stock into which the Warrants are exercisable is limited such that Millennium Partners, and its affiliates (including the Reporting Persons), may have aggregate beneficial ownership of not more than 9.99% of the total issued and outstanding shares of the Issuer’s Common Stock.

Millennium Management, as the managing partner of Millennium Partners, may also be deemed to beneficially own the above-described shares of the Issuer’s Common Stock beneficially owned by Millennium Partners.

Mr. Englander, as the managing member of Millennium Management, may also be deemed to beneficially own the above-described shares of the Issuer’s Common Stock beneficially owned by Millennium Partners.

The foregoing should not be construed in and of itself as an admission by Millennium Management or Mr. Englander as to beneficial ownership of the shares held by Millennium Partners.

(b) Millennium Partners may be deemed to hold shared power to vote and to dispose of the 2,175,000 shares of the Issuer’s Common Stock described in (a) above. Mr. Englander and Millennium Management may be deemed to hold shared power to vote and to dispose of the 2,175,000 shares of Common Stock described in (a) above. The foregoing should not be construed in and of itself as an admission by Mr. Englander or Millennium Management as to beneficial ownership of the shares held by Millennium Partners.

(c) Transactions in the Issuer’s Common Stock since May 21, 2008, the date of Amendment No. 3 to Schedule 13D: Schedule A annexed hereto lists all transactions in the Issuer’s Common Stock since May 21, 2008, the date of Amendment No. 3 to Schedule 13D. All transactions in the Issuer’s Common Stock since May 21, 2008 were effected by Millennium Partners in the open market.

(d) No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of, dividends from, or proceeds from the sale of, the shares of Common Stock reported in this Final Amendment to Schedule 13D.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

In connection with arrangements with Millennium Partners’ prime brokers, such prime brokers are permitted to lend securities in Millennium Partners’ accounts to the extent permitted by debit balances in such account. Millennium Partners generally will not have any knowledge of the specific loans made by such prime brokers. In addition, in the ordinary course of business, Millennium Partners (or its prime brokers), may borrow securities to satisfy delivery obligations arising from short sales and may lend securities to third parties and such loans generally may be recalled upon demand. However, it should be noted that shares lent by Millennium Partners or its prime brokers may not be able to be recalled in advance of an applicable record date and thus, such loaned shares may not be able to be voted by Millennium Partners.

There are no other contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

Item 7. Material to Be Filed as Exhibits.

Exhibit I: Joint Filing Agreement, dated as of July 2, 2008, by and among Millennium Partners, L.P., Millennium Management LLC and Israel A. Englander.

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.

Dated: July 2, 2008

MILLENNIUM PARTNERS, L.P.
By: Millennium Management LLC,
       its managing partner

By: /s/David Nolan

Name: David Nolan
Title:  Co-President

MILLENNIUM MANAGEMENT LLC

By: /s/David Nolan

Name: David Nolan
Title:  Co-President

/s/ Israel A. Englander by David Nolan
pursuant to Power of Attorney filed with
the SEC on June 6, 2005

Israel A. Englander

EXHIBIT I

JOINT FILING AGREEMENT

This will confirm the agreement by and among the undersigned that the Schedule 13D filed with the Securities and Exchange Commission on or about the date hereof with respect to the beneficial ownership by the undersigned of the Common Stock, par value $0.01 per share, of MiddleBrook Pharmaceuticals, Inc., a Delaware corporation, is being filed, and all amendments thereto will be filed, on behalf of each of the persons and entities named below in accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Dated: July 2, 2008

MILLENNIUM PARTNERS, L.P.
By: Millennium Management LLC,
       its managing partner

By: /s/David Nolan

Name: David Nolan
Title:  Co-President

MILLENNIUM MANAGEMENT LLC

By: /s/David Nolan

Name: David Nolan
Title:  Co-President

/s/ Israel A. Englander by David Nolan
pursuant to Power of Attorney filed with
the SEC on June 6, 2005

Israel A. Englander

Schedule A

Transactions in the Issuer’s Common Stock since May 21, 2008, the date of Amendment No. 3 to Schedule 13D:

Date of Transaction	Quantity Purchased (Sold)	Price Per Share $
7/2/2008	(1,550,000)	1.397911852
7/2/2008	(250,000)	1.426
7/2/2008	(200,000)	1.37

Note: All of the above transactions in the Issuer’s Common Stock since May 21, 2008 were effected by Millennium Partners in the open market.

-----END PRIVACY-ENHANCED MESSAGE-----