This Amendment No. 3 (this Amendment) amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by Zogenix, Inc., a Delaware corporation, with the United States Securities and Exchange Commission (the SEC) on
February 1, 2022 (as amended or supplemented from time to time, the Schedule 14D-9), relating to the tender offer (the Offer) by Zinc Merger Sub, Inc., a Delaware
corporation (Purchaser) and a wholly owned subsidiary of UCB S.A., a société anonyme formed under the laws of Belgium (Parent), 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 equal to (i) $26.00, net to the seller in cash, without interest and subject to any withholding of taxes required by applicable law, plus (ii) one non-transferable contingent value right per Share (each, a CVR), which CVR represents the right to receive a contingent payment of $2.00, net to the seller in cash, without interest and less any
applicable tax withholding, which amount will become payable, if at all, if a specified milestone is achieved on or prior to December 31, 2023, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated
February 1, 2022 (as amended or supplemented from time to time, the Offer to Purchase), and in the related Letter of Transmittal (which, together with the Offer to Purchase, as each may be amended or supplemented from time to
time, constitute the Offer). The Offer is described in a Tender Offer Statement on Schedule TO filed by Parent and Purchaser with the SEC on February 1, 2022 (as amended or supplemented from time to time, the
Schedule TO). The Offer to Purchase and Letter of Transmittal are filed as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to the Schedule 14D-9 and are incorporated herein by reference.
Except to the extent specifically provided in this Amendment, the information set forth in the Schedule 14D-9
remains unchanged. Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings ascribed to them in the Schedule 14D-9. This Amendment is being filed to reflect certain updates
as reflected below.
Explanatory Note:
This
supplemental information should be read in conjunction with the Schedule 14D-9 in its entirety. The Company believes that no supplemental disclosure is required under applicable laws and that the Schedule 14D-9 disclosed all material information required to be disclosed therein. However, to avoid the risk that lawsuits may delay or otherwise adversely affect the Offer and to minimize the expense of defending such
actions, without admitting any liability or wrongdoing, the Company wishes to voluntarily make certain supplemental disclosures related to the Offer, all of which are set forth below and should be read in conjunction with the Schedule 14D-9. Nothing in these supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. Paragraph and page references
used herein refer to the Schedule 14D-9 before any additions or deletions resulting from this supplemental information. If additional, similar complaints are filed, absent new or different allegations that are
material, the Company will not necessarily announce such filings. Unless stated otherwise, the new text in the supplemental information is bolded and underlined and any deleted text is bolded and denoted with a strikethrough to highlight the
supplemental information being disclosed.
Item 4. The Solicitation or Recommendation.
Item 4 of the Schedule 14D-9 is hereby amended and supplemented as follows:
The eleventh paragraph under the heading entitled Item 4. The Solicitation or RecommendationBackground and Reasons for the Company Boards
RecommendationBackground of the Offer on page 15 of the Schedule 14D-9 is amended and supplemented as follows:
On August 25, 2021, the Company entered into a confidentiality agreement with Parent to facilitate further discussions regarding the
potential partnership opportunity in the EU and provided Parent access to the virtual data room created by the Company for the same purpose. The confidentiality agreement did not include a standstill provision. The confidentiality
agreement with Parent contained terms that were substantially similar to the confidentiality agreement entered into between the Company and Party A. The Company did not enter into any standstill agreements with any potential counterparties to a
potential strategic business combination transaction with the Company in connection with the transaction process, including Party B. Other than the confidentiality agreement with Parent and the confidentiality agreement with Party A, the
Company did not enter into any confidentiality agreements with any potential counterparties to a potential strategic business combination transaction with the Company in connection with the transaction process, including Party B.