XNPT Xenoport, Inc.

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

XENOPORT, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		94-3330837
(State of Incorporation)		(I.R.S. Employer Identification No.)

 

 

3410 Central Expressway

Santa Clara, CA 95051

(Address of principal executive offices and zip code)

 

 

2005 Employee Stock Purchase Plan

(Full title of the plan)

Ronald W. Barrett, Ph.D.

Chief Executive Officer

XenoPort, Inc.

3410 Central Expressway

Santa Clara, CA 95051

(408) 616-7200

(Name, address and telephone number, including area code, of agent for service)

 

 

Copies to:

Chadwick L. Mills, Esq.

COOLEY LLP

3175 Hanover Street

Palo Alto, CA 94304

(650) 843-5000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		¨		Accelerated filer		x
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

Title of Securities to be Registered		Amount to be Registered (1)		Proposed Maximum Offering Price per Share (3)		Proposed Maximum Aggregate Offering Price (3)		Amount of Registration Fee
Common Stock, par value $0.001 per share, including related rights to purchase Series A junior participating preferred stock(2)		250,000 shares		$7.94		$1,985,000		$230.66

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s common stock (the “Common Stock”) that become issuable under the plan set forth herein by reason of any stock dividend, stock split, recapitalization or any other similar transaction without receipt of consideration that results in an increase in the number of shares of the Registrant’s outstanding Common Stock.

(2)

Each share of the Registrant’s Common Stock being registered hereunder, if issued prior to the termination by the Registrant of its rights agreement, dated as of December 15, 2005, as amended, between the Registrant and the rights agent named therein, includes Series A junior participating preferred stock purchase rights (the “Rights”). Prior to the occurrence of certain events, the Rights will not be exercisable or evidenced separately from the Registrant’s Common Stock and have no value except as reflected in the market price of the shares to which they are attached.

(3)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the NASDAQ Global Select Market on March 24, 2015.

 

 

 

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EXPLANATORY NOTE

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 250,000 shares of the Registrant’s common stock to be issued pursuant to the Registrant’s 2005 Employee Stock Purchase Plan.

INCORPORATION BY REFERENCE OF CONTENTS OF

REGISTRATION STATEMENTS ON FORM S-8

The contents of the Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission on June 3, 2005 (File No. 333-125518), April 18, 2006 (File No. 333-133357), May 11, 2007 (File No. 333-142844), May 8, 2008 (File No. 333-150730), January 9, 2013 (File No. 333-185940) and January 16, 2014 (File No. 333-193391) are incorporated by reference herein.

EXHIBITS

 

Exhibit Number		Description
4.1(1)		Amended and Restated Certificate of Incorporation of XenoPort, Inc.
4.2(2)		Certificate of Amendment of Amended and Restated Certificate of Incorporation of XenoPort, Inc.
4.3(3)		Amended and Restated Bylaws of XenoPort, Inc.
4.4(4)		Certificate of Designation of Series A Junior Participating Preferred Stock.
4.5(5)		Specimen Common Stock Certificate.
4.6(6)		Form of Right Certificate.
4.7(7)		Rights Agreement, dated as of December 15, 2005, by and between XenoPort, Inc. and Mellon Investor Services LLC.
4.8(8)		Amendment No. 1 to Rights Agreement, dated as of January 29, 2015, by and between the Company and Computershare Inc., successor rights agent to Computershare Shareowner Services LLC (f/k/a Mellon Investor Services LLC).
5.1		Opinion of Cooley LLP.
23.1		Consent of Independent Registered Public Accounting Firm.
23.2		Consent of Cooley LLP (included in Exhibit 5.1).
24.1		Power of Attorney (included in the signature page).
99.1.1(9)		XenoPort, Inc. 2005 Employee Stock Purchase Plan.
99.1.2(10)		Form of 2005 Employee Stock Purchase Plan Offering Document.

 

(1)	Previously filed as Exhibit 3.1 to XenoPort, Inc.’s quarterly report on Form 10-Q (No. 000-51329) for the period ended June 30, 2005, as filed with the Securities and Exchange Commission on August 11, 2005, and incorporated by reference herein.

(2)	Previously filed as Exhibit 3.4 to XenoPort Inc.’s current report on Form 8-K (File No. 000-51329), filed with the Securities and Exchange Commission on May 18, 2012, and incorporated by reference herein.

(3)	Previously filed as Exhibit 3.2 to XenoPort, Inc.’s quarterly report on Form 10-Q (No. 000-51329) for the period ended June 30, 2005, as filed with the Securities and Exchange Commission on August 11, 2005, and incorporated by reference herein.

(4)	Previously filed as Exhibit 3.1 to XenoPort, Inc.’s current report on Form 8-K (No. 000-51329), as filed with the Securities and Exchange Commission on December 16, 2005, and incorporated by reference herein.

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(5)	Previously filed as Exhibit 4.1 to XenoPort, Inc.’s registration statement on Form S-1, as amended (No. 333-122156), as filed with the Securities and Exchange Commission on April 13, 2005, and incorporated by reference herein.

(6)	Previously filed as Exhibit 4.1 to XenoPort, Inc.’s current report on Form 8-K (No. 000-51329), as filed with the Securities and Exchange Commission on December 16, 2005, and incorporated by reference herein.

(7)	Previously filed as Exhibit 4.2 to XenoPort, Inc.’s current report on Form 8-K (File No. 000-51329), as filed with the Securities and Exchange Commission on December 16, 2005, and incorporated herein by reference.

(8)	Previously filed as Exhibit 4.2 to XenoPort, Inc.’s current report on Form 8-K (File No. 000-51329), as filed with the Securities and Exchange Commission on February 3, 2015, and incorporated by reference herein.

(9)	Previously filed as Exhibit 10.11 to XenoPort Inc.’s registration statement on Form S-1, as amended (No. 333-122156), as filed with the Securities and Exchange Commission on March 2, 2005, and incorporated by reference herein.

(10)	Previously filed as Exhibit 10.12 to XenoPort Inc.’s registration statement on Form S-1, as amended (No. 333-122156), as filed with the Securities and Exchange Commission on March 2, 2005, and incorporated by reference herein.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara, State of California, on March 27, 2015.

 

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ronald W. Barrett and William G. Harris, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/    Ronald W. Barrett		Chief Executive Officer and Director (Principal Executive Officer)		March 27, 2015
Ronald W. Barrett
/s/    William G. Harris		Senior Vice President of Finance and Chief Financial Officer (Principal Financial and Accounting Officer)		March 27, 2015
William G. Harris
/s/    Paul L. Berns		Director		March 27, 2015
Paul L. Berns
/s/    Dennis M. Fenton		Director		March 27, 2015
Dennis M. Fenton
/s/    John G. Freund		Director		March 27, 2015
John G. Freund
/s/    Catherine J. Friedman		Director		March 27, 2015
Catherine J. Friedman
/s/    Jeryl L. Hilleman		Director		March 27, 2015
Jeryl L. Hilleman
/s/    Ernest Mario		Director		March 27, 2015
Ernest Mario
/s/    William J. Rieflin		Director		March 27, 2015
William J. Rieflin
/s/    Wendell Wierenga		Director		March 27, 2015
Wendell Wierenga

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1(1)		Amended and Restated Certificate of Incorporation of XenoPort, Inc.
4.2(2)		Certificate of Amendment of Amended and Restated Certificate of Incorporation of XenoPort, Inc.
4.3(3)		Amended and Restated Bylaws of XenoPort, Inc.
4.4(4)		Certificate of Designation of Series A Junior Participating Preferred Stock.
4.5(5)		Specimen Common Stock Certificate.
4.6(6)		Form of Right Certificate.
4.7(7)		Rights Agreement, dated as of December 15, 2005, by and between XenoPort, Inc. and Mellon Investor Services LLC.
4.8(8)		Amendment No. 1 to Rights Agreement, dated as of January 29, 2015, by and between the Company and Computershare Inc., successor rights agent to Computershare Shareowner Services LLC (f/k/a Mellon Investor Services LLC).
5.1		Opinion of Cooley LLP.
23.1		Consent of Independent Registered Public Accounting Firm.
23.2		Consent of Cooley LLP (included in Exhibit 5.1).
24.1		Power of Attorney (included in the signature page).
99.1.1(9)		XenoPort, Inc. 2005 Employee Stock Purchase Plan.
99.1.2(10)		Form of 2005 Employee Stock Purchase Plan Offering Document.

 

(1)	Previously filed as Exhibit 3.1 to XenoPort, Inc.’s quarterly report on Form 10-Q (No. 000-51329) for the period ended June 30, 2005, as filed with the Securities and Exchange Commission on August 11, 2005, and incorporated by reference herein.

(2)	Previously filed as Exhibit 3.4 to XenoPort Inc.’s current report on Form 8-K (File No. 000-51329), filed with the Securities and Exchange Commission on May 18, 2012, and incorporated by reference herein.

(3)	Previously filed as Exhibit 3.2 to XenoPort, Inc.’s quarterly report on Form 10-Q (No. 000-51329) for the period ended June 30, 2005, as filed with the Securities and Exchange Commission on August 11, 2005, and incorporated by reference herein.

(4)	Previously filed as Exhibit 3.1 to XenoPort, Inc.’s current report on Form 8-K (No. 000-51329), as filed with the Securities and Exchange Commission on December 16, 2005, and incorporated by reference herein.

(5)	Previously filed as Exhibit 4.1 to XenoPort, Inc.’s registration statement on Form S-1, as amended (No. 333-122156), as filed with the Securities and Exchange Commission on April 13, 2005, and incorporated by reference herein.

(6)	Previously filed as Exhibit 4.1 to XenoPort, Inc.’s current report on Form 8-K (No. 000-51329), as filed with the Securities and Exchange Commission on December 16, 2005, and incorporated by reference herein.

(7)	Previously filed as Exhibit 4.2 to XenoPort, Inc.’s current report on Form 8-K (File No. 000-51329), as filed with the Securities and Exchange Commission on December 16, 2005, and incorporated herein by reference.

(8)	Previously filed as Exhibit 4.2 to XenoPort, Inc.’s current report on Form 8-K (File No. 000-51329), as filed with the Securities and Exchange Commission on February 3, 2015, and incorporated by reference herein.

(9)	Previously filed as Exhibit 10.11 to XenoPort Inc.’s registration statement on Form S-1, as amended (No. 333-122156), as filed with the Securities and Exchange Commission on March 2, 2005, and incorporated by reference herein.

(10)	Previously filed as Exhibit 10.12 to XenoPort Inc.’s registration statement on Form S-1, as amended (No. 333-122156), as filed with the Securities and Exchange Commission on March 2, 2005, and incorporated by reference herein.

Exhibit 5.1

 

Chadwick L. Mills

+1 650 843 5654

cmills@cooley.com

March 27, 2015

XenoPort, Inc.

3410 Central Expressway

Santa Clara, CA 95051

Ladies and Gentlemen:

You have requested our opinion with respect to certain matters in connection with the filing by XenoPort, Inc. (the “Company”) of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 250,000 shares of the Company’s Common Stock, $0.001 par value per share (the “Shares”), to be issued pursuant to the Company’s 2005 Employee Stock Purchase Plan (the “Plan”), and the preferred stock purchase rights (the “Rights”) associated with the Shares to be issued pursuant to that certain Rights Agreement, dated as of December 15, 2005, as amended (the “Rights Agreement”), between the Company and Computershare Shareowner Services LLC (formerly Mellon Investor Services LLC), as rights agent (the “Rights Agent”).

In connection with this opinion, we have examined the Registration Statement and related Prospectus, the Company’s Certificate of Incorporation and Bylaws, each as amended, the Rights Agreement, as amended, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. We have also assumed that the Rights Agreement has been duly authorized, executed and delivered by the Rights Agent and that the members of the Board of Directors of the Company (the “Board”) have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights Agreement.

Our opinion is expressed only with respect to the federal laws of the United States of America and the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter hereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares and the associated Rights, when sold and issued in accordance with the Plan, the Registration Statement and the related Prospectus, will be validly issued, and the Shares fully paid and nonassessable.

This opinion does not address the determination a court of competent jurisdiction may make regarding whether the Board may be required to redeem or terminate, or take other action with respect to, the Rights in the future based on the facts and circumstances then existing. Moreover, this opinion addresses corporate procedures in connection with the issuance of the Rights associated with the Shares, and not any particular provision of the Rights or the Rights Agreement. It should be understood that it is not settled whether the invalidity of any particular provision of a rights agreement or purchase rights issued thereunder would invalidate such rights in their entirety.

101 CALIFORNIA STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-5800 T: (415) 693-2000 F: (415) 693-2222 WWW.COOLEY.COM

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XenoPort, Inc.

March 27, 2015

Page Two

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Very truly yours,

 

COOLEY LLP
By:		/s/ Chadwick L. Mills
		Chadwick L. Mills

101 CALIFORNIA STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-5800 T: (415) 693-2000 F: (415) 693-2222 WWW.COOLEY.COM

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2005 Employee Stock Purchase Plan of XenoPort, Inc. of our reports dated February 27, 2015, with respect to the financial statements of XenoPort, Inc. and the effectiveness of internal control over financial reporting of XenoPort, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Redwood Shores, California

March 27, 2015