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Item 1.01
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Entry into a Material Definitive Agreement
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Agreement and Plan of Merger
On May 21, 2016, XenoPort, Inc., a Delaware corporation (the “
Company
”), entered into an Agreement and Plan of Merger (the
“
Merger Agreement
”) with Arbor Pharmaceuticals, LLC, a Delaware limited liability company (“
Parent
”), and AP Acquisition Sub, Inc. a Delaware corporation and a wholly owned subsidiary of Parent
(“
Purchaser
”).
Pursuant to the Merger Agreement, Purchaser, on the terms and subject to the conditions thereof, will commence a tender
offer (the “
Offer
”) to acquire any and all of the Company’s issued and outstanding shares (the “
Shares
”) of common stock, par value $0.001 per share (the “
Company Common Stock
”), at a purchase
price of $7.03 per share of Company Common Stock, net to the seller in cash (the “
Transaction Consideration
”), without interest, but subject to any applicable withholding of taxes.
If the conditions to the Offer are satisfied and the Offer closes, Parent would acquire any remaining Shares pursuant to a merger of Purchaser with and into
the Company (the “
Merger
”), with the Company surviving the Merger as a wholly owned subsidiary of Parent. The Merger Agreement contemplates that the Merger will be effected pursuant to Section 251(h) of the General
Corporation Law of the State of Delaware, which permits completion of the Merger upon the acquisition of a majority of the voting power of the Company Common Stock. Accordingly, no vote of the Company’s stockholders will be required in
connection with the Merger if Parent and Purchaser consummate the Offer.
Upon the Merger being effective, each outstanding Share (other than Shares owned
by Parent, Purchaser or the Company, or by stockholders who have validly exercised their appraisal rights under Delaware law), will be cancelled and converted into the right to receive an amount equal to the Transaction Consideration.
The obligation of Parent and Purchaser to consummate the Offer is subject to various conditions set forth in the Merger Agreement, including, among others:
(i) the number of Shares being validly tendered and not validly withdrawn prior to the expiration of the Offer, when added to the Shares then beneficially owned by Parent and its affiliates, constitute at least a majority of the total number of
the then-issued and outstanding Shares; (ii) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iii) the absence of any Company Material Adverse
Effect (as defined in the Merger Agreement) since the date of the Merger Agreement; and (iv) the completion of a specified marketing period for the debt financing Parent and Purchaser are using to fund a portion of the aggregate Transaction
Consideration (the “
Marketing Period
”) . The consummation of the Offer and the Merger are not subject to a financing condition.
The
Offer will expire at 11:59 p.m., New York City time, on the 20th business day following the commencement date of the Offer, unless extended in accordance with the terms of the Offer and the Merger Agreement.
The Merger Agreement contains customary representations and warranties and covenants by the parties. Generally, the Company has agreed to operate its business
in the ordinary course until the completion of the Transactions (as defined below). The Company has also agreed not to solicit or initiate discussions with third parties regarding other proposals relating to alternative transactions and certain
restrictions on its ability to respond to such proposals, subject to certain limited exceptions to permit the Company’s board of directors to comply with its fiduciary duties. Parent and Purchaser have agreed to use reasonable best efforts to
obtain approval of the Transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
The Merger Agreement also contains
customary termination provisions in favor of each of the Company and Parent, subject, in certain circumstances, to the payment by the Company of a termination fee of $16.5 million. The Company must pay Parent the $16.5 million termination fee in the
event that the Merger Agreement is terminated by Parent following a change of recommendation by the board of directors of the Company or if the Company terminates the Merger Agreement to enter into an agreement with respect to a proposal from a
third party that the board of directors of the Company has determined is superior to Parent’s, in each case, as is described in further detail in the Merger Agreement. Under certain additional circumstances described in the Merger Agreement,
the Company must also pay Parent a termination fee of $16.5 million if the Merger
Agreement is terminated and, within twelve months following such termination, the Company consummates a business combination transaction of the type described in the relevant provisions of the
Merger Agreement or enters into an agreement for a business combination transaction of the type described in the relevant provisions of the Merger Agreement that is subsequently consummated.
The Merger Agreement also provides that Parent will be required to pay the Company a reverse termination fee of $25 million if: (i) Parent or the Company
terminates the Merger Agreement because the Offer has been extended under certain circumstances beyond September 30, 2016 or the fifth business day after the end of the Marketing Period, whichever is later; or (ii) the Company terminates
the Merger Agreement because Acquisition Sub, after the satisfaction or waiver (or deemed satisfaction or waiver) of the Offer conditions, has not accepted for payment the Shares tendered in the Offer by the later of: (a) three business days
after the Company notifies Acquisition Sub that the Company intends to terminate the Merger Agreement if Acquisition Sub fails to accept for payment the Shares tendered in the Offer; and (b) one business day after the expiration of the Offer,
in each case, as is described in further detail in the Merger Agreement. In the circumstances where the reverse termination fee is payable by Parent, payment of the reverse termination fee constitutes the Company’s sole and exclusive monetary
remedy against Parent and Purchaser.
Parent has obtained debt financing commitments from certain financial institutions to fund the transactions
contemplated by the Merger Agreement. The Merger Agreement requires Parent to use its reasonable best efforts to obtain the financing on the terms and conditions described in the financing commitments. The Company is only entitled to specific
performance to force Parent and Acquisition Sub to consummate the Offer and the Merger if all of the Offer conditions have been satisfied or waived at the expiration of the Offer and the debt financing has been funded or will be funded when
Acquisition Sub accepts for payment the Shares tendered in the Offer.
The board of directors of the Company: (i) unanimously determined that the
terms of the Merger Agreement and the transactions contemplated by the Merger Agreement (the “
Transactions
”), including the Offer and the Merger, are fair to, and in the best interests of the Company and its stockholders;
(ii) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into the Merger Agreement; (iii) authorized the execution and delivery by the Company of the Merger Agreement, the
performance by the Company of its covenants and agreements contained in the Merger Agreement and the consummation of the Offer, the Merger and the other Transactions upon the terms and subject to the conditions contained in the Merger Agreement; and
(iv) resolved to recommend that the holders of Shares accept the Offer and tender all of their Shares to Purchaser pursuant to the Offer.
The
foregoing summary of the principal terms of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full copy of the Merger Agreement filed as Exhibit 2.1 hereto and incorporated herein by reference.
The summary and the copy of the Merger Agreement are intended to provide information regarding the terms of the Merger Agreement and are not intended to modify or supplement any factual disclosures about the Company in its public reports filed with
the SEC. In particular, the Merger Agreement and related summary are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to any party to the Merger Agreement. The Merger Agreement includes
representations, warranties and covenants of the Company, Parent and Purchaser made solely for the benefit of the parties to the Merger Agreement. The assertions embodied in those representations and warranties were made solely for purposes of the
contract among the Company, Parent and Purchaser and may be subject to important qualifications and limitations agreed to by the Company, Parent and Purchaser in connection with the negotiated terms. Moreover, some of those representations and
warranties may not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to the Company’s SEC filings or may have been used for purposes of allocating
risk among the Company, Parent and Purchaser rather than establishing matters as facts. Investors should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts of the
Company, Parent and Purchaser or any of their respective subsidiaries or affiliates.