Amended Statement of Ownership: Solicitation (sc 14d9/a)
June 27 2016 - 12:33PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment 6
to
SCHEDULE 14D-9
(Rule 14d-101)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
XENOPORT, INC.
(Name of
Subject Company)
XENOPORT, INC.
(Name of
Persons Filing Statement)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
Common Stock 98411C100
(CUSIP Number of Class of Securities)
Thomas P. McCracken
General Counsel
XenoPort, Inc.
2000
Seaport Boulevard, Suite 300
Redwood City, California 94063
(408) 616-7200
With
copies to:
Keith A. Flaum
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, California 94065
(650) 802-3000
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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This Amendment No. 6 (this
Amendment
) amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 previously filed with the Securities and Exchange Commission (the
SEC
) on June 6, 2016 (together with the Exhibits and Annexes thereto and as amended and supplemented from
time to time, the
Schedule 14D-9
) by XenoPort, Inc., a Delaware corporation (the
Company
). The Schedule 14D-9 relates to the cash tender offer by AP Acquisition Sub, Inc., a Delaware corporation
(
Acquisition Sub
), and a wholly owned subsidiary of Arbor Pharmaceuticals, LLC, a Delaware limited liability company (
Parent
), disclosed in the Tender Offer Statement on Schedule TO (together with the Exhibits
and Annexes thereto and as amended or supplemented from time to time, the
Schedule TO
), filed by Acquisition Sub, Parent and Arbor Pharmaceuticals, Inc., a Delaware corporation, with the SEC on June 6, 2016, pursuant to which
Acquisition Sub has offered to purchase all of the outstanding shares of common stock, par value $0.001 per share, of the Company (the
Shares
) at a purchase price of $7.03 per Share, net to the seller in cash, without interest
thereon, less any applicable tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated June 6, 2016 and in the related Letter of Transmittal.
Capitalized terms used but not otherwise defined in this Amendment shall have the meanings ascribed to them in the Schedule 14D-9.
Except as set forth below, the information set forth in the Schedule 14D-9 remains unchanged and is incorporated herein by reference as
relevant to the items in this Amendment.
Item 8. Additional Information to be Furnished.
The subsection under the heading
Certain Litigation
under Item 8 of the Schedule 14D-9 is hereby amended and supplemented by
deleting the last sentence of the first paragraph and adding, after the first paragraph, the following:
On June 24, 2016, the
Company entered into a memorandum of understanding (the
MOU
) with respect to a settlement with the parties to the actions in the San Mateo County Superior Court captioned
Gilmore v.
Angotti
et al.
,
Bushansky
v.
XenoPort
, et al.
and
McMahon v.
XenoPort
, et al.
(collectively, the
Li
tigation
). Pursuant to the MOU, the Company agreed to make additional disclosures in its
Schedule 14D-9, and the parties expect to execute a stipulation of settlement, which will be subject to approval by the San Mateo County Superior Court. There can be no assurance that the settlement will be finalized or that the San Mateo
County Superior Court will approve the settlement. The settlement terms provide that the Litigation will be dismissed with prejudice against all defendants. The Company and the other named defendants deny any liability with respect to the
facts and claims alleged in the Litigation. The defendants further deny that any supplemental disclosure was required under any applicable statute, rule, regulation or law. The settlement includes an agreement to settle all claims related to
the Merger, whether or not such claims have been asserted in the Litigation. This agreement to settle all claims related to the Merger is subject to approval by the San Mateo County Superior Court.
The Board and the Company (and the other defendants) elected to enter into the MOU to settle the Litigation despite the collective view that
the Litigation lacked merit because they did not want to jeopardize the proposed Merger or the timing thereof, which transaction the Board continues to believe is in the best interests of the Companys stockholders.
Without agreeing that any of the claims in the Litigation have merit, the Company has agreed, pursuant to the terms of the MOU, to make
certain additional disclosures which supplement the information provided in the Schedule 14D-9, concerning the Offer and the Merger. Those additional disclosures were filed on Amendment No. 5 to Schedule 14D-9 on June 24, 2016 (
Amendment
No. 5
). Amendment No. 5 should be read in conjunction with the disclosures contained in the Schedule 14D-9, which in turn should be read in its entirety. The settlement will not affect the amount of the Offer Price to be paid to the
stockholders of the Company in connection with the Offer and the Merger.
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.
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XenoPort, Inc.
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Dated: June 27, 2016
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By:
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/s/ Thomas P. McCracken
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Name:
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Thomas P. McCracken
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Title:
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General Counsel
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3
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