-----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, Q0LDm6n0OhykgSbtJF/SV1JEAuIfuQk29YFGfkcwiCKQY31IXeLyS+5rmdRB3pgH vgb11OBDISQX0+UEklssdg== 0000905718-04-000241.txt : 20040913 0000905718-04-000241.hdr.sgml : 20040913 20040913140901 ACCESSION NUMBER: 0000905718-04-000241 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20040913 DATE AS OF CHANGE: 20040913 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VALENTIS INC CENTRAL INDEX KEY: 0000932352 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 943156660 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-53479 FILM NUMBER: 041027214 BUSINESS ADDRESS: STREET 1: 863A MITTEN RD CITY: BURLINGAME STATE: CA ZIP: 94010 BUSINESS PHONE: 6506971900 MAIL ADDRESS: STREET 1: 863A MITTEN ROAD CITY: BURLINGAME STATE: CA ZIP: 94010 FORMER COMPANY: FORMER CONFORMED NAME: MEGABIOS CORP DATE OF NAME CHANGE: 19960716 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: XMARK ASSET MANAGEMENT LLC CENTRAL INDEX KEY: 0001118481 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: CARNEGIE HALL TOWER STREET 2: 152 W 57TH ST 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2122478200 MAIL ADDRESS: STREET 1: CARNEGIE HALL TOWER STREET 2: 152 W 57TH ST 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 FORMER COMPANY: FORMER CONFORMED NAME: BROWN SIMPSON ASSET MANAGEMENT LLC DATE OF NAME CHANGE: 20000707 SC 13D 1 valentis13dsept04.txt SC13DVAL UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. )* VALENTIS, INC. - -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, PAR VALUE $0.001 PER SHARE - -------------------------------------------------------------------------------- (Title of Class of Securities) 91913E302 - -------------------------------------------------------------------------------- (CUSIP Number) Mitchell D. Kaye, Manager with a copy to: Xmark Asset Management, LLC Steven E. Seisser, 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 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 7, 2004 - -------------------------------------------------------------------------------- (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. 91913E302 - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only): Xmark Asset Management, LLC 13-3954392 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions): (a) Not (b) Applicable - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions): WC - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): Not Applicable - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: New York, United States - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: * ------------------------------------------- Shares Beneficially 8. Shared Voting Power: * ------------------------------------------- Owned by Each Reporting 9. Sole Dispositive Power: * ------------------------------------------ Person With 10. Shared Dispositive Power: * ------------------------------------------ - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,326,472* - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): Not Applicable - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 9.9%* - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions): IA - -------------------------------------------------------------------------------- * Xmark Asset Management, LLC, a New York limited liability company ("XAM"), serves as investment manager for each of Xmark Fund, L.P., a Delaware limited partnership ("Xmark LP"), and Xmark Fund, Ltd., a Cayman Islands exempted company ("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. As of September 7, 2004, Xmark LP is the holder of (i) 495,561 shares of common stock, par value $0.001 per share (the "Common Stock"), of Valentis, Inc., a Delaware corporation (the "Company"), (ii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark LP to purchase up to an aggregate of 132,996 shares of Common Stock at an exercise price of $3.00 per share (the "Initial Xmark LP Warrants"), which exercise price is subject to adjustment as set forth in the Initial Xmark LP Warrants, and (iii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark LP to purchase up to an aggregate of 34,916 shares of Common Stock at an exercise price of $6.98 per share (the "Additional Xmark LP Warrants", and together with the Initial Xmark LP Warrants, the "Xmark LP Warrants"), which exercise price is subject to adjustment as set forth in the Additional Xmark LP Warrants. Xmark Ltd is the holder of (i) 491,619 shares of Common Stock, and (ii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark Ltd to purchase up to an aggregate of 136,464 shares of Common Stock at an exercise price of $3.00 per share (the "Initial Xmark Ltd Warrants"), which exercise price is subject to adjustment as set forth in the Initial Xmark Ltd Warrants, and (iii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark Ltd to purchase up to an aggregate of 34,916 shares of Common Stock at an exercise price of $6.98 per share (the "Additional Xmark Ltd Warrants", and together with the Initial Xmark Ltd Warrants, the "Xmark Ltd Warrants"), which exercise price is subject to adjustment as set forth in the Additional Xmark Ltd Warrants. Thus, as of September 7, 2004, for the purposes of Reg. Section 240.13d-3, XAM may be deemed to beneficially own 1,326,472 shares of Common Stock, or 9.9% of the Common Stock deemed issued and outstanding as of that date. This Schedule is a voluntary filing to transition from the Schedule 13G filed by the reporting person on January 7, 2004 to Schedule 13D, and is not prompted by any change in the disclosure required by Item 4 of Schedule 13D. Item 1. Security and Issuer. ------------------- This statement relates to the common stock, par value $0.001 per share (the "Common Stock"), of Valentis, Inc., a Delaware corporation (the "Company"). The Company has its principal executive offices located at 863A Mitten Road, Burlingame, California 94010. Item 2. Identity and Background. ----------------------- The person filing this statement is Xmark Asset Management, LLC, a New York limited liability company ("XAM"). XAM's business address is 152 West 57th Street, 21st Floor, New York, New York 10019. XAM serves as the investment manager for Xmark Fund, L.P., a Delaware limited partnership ("Xmark LP") and Xmark Fund, Ltd., a Cayman Islands exempt company ("Xmark Ltd"). Xmark LP and Xmark Ltd are engaged in the investment in personal property of all kinds, including but not limited to capital stock, depository receipts, investment companies, mutual funds, subscriptions, warrants, bonds, notes, debentures, options and other securities of whatever kind and nature. Mitchell D. Kaye, whose business address is c/o Xmark Asset Management, LLC, 152 West 57th Street, 21st Floor, New York, New York 10019, is the Chief Investment Officer of Xmark LP and Xmark Ltd and the Manager of XAM. XAM has never been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors), nor has he been a party to any civil proceeding commenced before a judicial or administrative body of competent jurisdiction as a result of which he was or is now subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Mr. Kaye has never been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors), nor has he been a party to any civil proceeding commenced before a judicial or administrative body of competent jurisdiction as a result of which he was or is now subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Mr. Kaye is a citizen of the United States. Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- The source of the funds used in making the purchases of the Company's Common Stock was XAM's working capital. Item 4. Purpose of Transaction. ---------------------- The acquisition of the securities referred to herein is for investment purposes. XAM has no 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. This Schedule is a voluntary filing to transition from the Schedule 13G filed by the reporting person on January 7, 2004 to Schedule 13D, and is not prompted by any change in the disclosure required by Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. ------------------------------------ Based upon the Company's Prospectus Supplement No. 2 filed pursuant to Rule 424(b)(3) on July 30, 2004, there were 13,009,895 shares of Common Stock issued and outstanding as of July 29, 2004. As of September 7, 2004, Xmark LP is the holder of (i) 495,561 shares of Common Stock of the Company, (ii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark LP to purchase up to an aggregate of 132,996 shares of Common Stock at an exercise price of $3.00 per share (the "Initial Xmark LP Warrants"), which exercise price is subject to adjustment as set forth in the Initial Xmark LP Warrants, and (iii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark LP to purchase up to an aggregate of 34,916 shares of Common Stock at an exercise price of $6.98 per share (the "Additional Xmark LP Warrants", and together with the Initial Xmark LP Warrants, the "Xmark LP Warrants"), which exercise price is subject to adjustment as set forth in the Additional Xmark LP Warrants. Xmark Ltd is the holder of (i) 491,619 shares of Common Stock and (ii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark Ltd to purchase up to an aggregate of 136,464 shares of Common Stock at an exercise price of $3.00 per share (the "Initial Xmark Ltd Warrants"), which exercise price is subject to adjustment as set forth in the Initial Xmark Ltd Warrants, and (iii) warrants which, subject to certain exercise restrictions contained therein, entitle Xmark Ltd to purchase up to an aggregate of 34,916 shares of Common Stock at an exercise price of $6.98 per share (the "Additional Xmark Ltd Warrants", and together with the Initial Xmark Ltd Warrants, the "Xmark Ltd Warrants"), which exercise price is subject to adjustment as set forth in the Additional Xmark Ltd Warrants. Thus, as of September 7, 2004, for the purposes of Reg. Section 240.13d-3, XAM may be deemed to beneficially own 1,326,472 shares of Common Stock, or 9.9% of the Common Stock deemed issued and outstanding as of that date. The Xmark LP Warrants and the Xmark Ltd Warrants (the "Warrants") provide that in no event shall such Warrants be exercisable for shares of Common Stock to the extent that the issuance of Common Stock thereunder 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 9.999% of the Common Stock (the "Issuance Limitation"). The Issuance Limitation may not be waived. The following table details the transactions during the 60 days prior to September 7, 2004 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 (Purchases) Date Quantity Price Per Share ---- -------- --------------- July 26, 2004 63 $9.24 August 2, 2004 63 $10.00 August 3, 2004 124 $10.11 August 4, 2004 311 $10.14 August 5, 2004 249 $8.72 August 9, 2004 684 $7.59 August 10, 2004 124 $7.81 August 12, 2004 808 $6.94 August 13, 2004 4,973 $6.48 August 16, 2004 4,973 $6.74 August 17, 2004 6,216 $6.57 August 18, 2004 18,649 $6.19 August 19, 2004 24,346 $6.04 August 20, 2004 12,433 $5.87 August 24, 2004 1,500 $6.46 August 25, 2004 13,000 $6.04 August 27, 2004 1,000 $5.94 August 30, 2004 3,250 $5.73 September 1, 2004 10,000 $5.40 September 2, 2004 5,000 $5.33 September 3, 2004 12,250 $5.01 (Sales) Date Quantity Price Per Share ---- -------- --------------- July 9, 2004 7,535 $8.05 July 16, 2004 20,668 $9.24 July 19, 2004 533 $9.50 July 20, 2004 13,334 $9.02 July 21, 2004 6,667 $8.93 July 22, 2004 6,667 $9.06 July 26, 2004 7,807 $9.55 July 26, 2004 8,653 $9.24 July 27, 2004 21,128 $9.66 August 2, 2004 63 $9.97 August 9, 2004 124 $7.51 September 2, 2004 7,500 $5.53 September 3, 2004 2,250 $5.10 September 7, 2004 16,668 $5.10 II. Xmark Ltd (Purchases) Date Quantity Price Per Share ---- -------- --------------- July 26, 2004 37 $9.24 August 2, 2004 37 $10.00 August 3, 2004 76 $10.11 August 4, 2004 189 $10.15 August 5, 2004 151 $8.72 August 9, 2004 416 $7.60 August 10, 2004 76 $7.81 August 12, 2004 492 $6.95 August 13, 2004 3,027 $6.48 August 16, 2004 3,027 $6.75 August 17, 2004 3,784 $6.57 August 18, 2004 11,351 $6.19 August 19, 2004 27,354 $6.05 August 20, 2004 7,567 $5.87 August 24, 2004 1,500 $6.47 August 25, 2004 13,000 $6.04 August 27, 2004 1,000 $5.94 August 30, 2004 3,250 $5.73 August 31, 2004 35,000 $5.55 September 1, 2004 10,000 $5.40 September 2, 2004 5,000 $5.33 September 3, 2004 12,250 $5.01 (Sales) Date Quantity Price Per Share ---- -------- --------------- July 9, 2004 8,465 $8.05 July 16, 2004 10,332 $9.25 July 19, 2004 267 $9.50 July 20, 2004 6,666 $9.02 July 21, 2004 3,333 $8.94 July 22, 2004 3,333 $9.07 July 26, 2004 3,903 $9.55 July 26, 2004 5,047 $9.24 July 27, 2004 10,562 $9.67 August 2, 2004 37 $9.97 August 9, 2004 76 $7.51 September 2, 2004 7,500 $5.53 September 3, 2004 2,250 $5.10 September 7, 2004 8,332 $5.10 Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. ------------------------------------------------------------------------ None. Item 7. Material to be Filed as Exhibits. -------------------------------- None. 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. September 13, 2004 XMARK ASSET MANAGEMENT, LLC /s/ Mitchell D. Kaye ------------------------------------ Mitchell D. Kaye, Manager Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001). -----END PRIVACY-ENHANCED MESSAGE-----