Amended Statement of Ownership: Solicitation (sc 14d9/a)
July 05 2016 - 1:17PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment 7
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. 7 (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 (
Purchaser
) 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 Purchaser, Parent and Arbor Pharmaceuticals, Inc., a Delaware corporation, with the SEC on June 6, 2016, pursuant to
which Purchaser has offered to purchase all of the outstanding shares of common stock, par value $0.001 per share, of 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.
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Additional Information.
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Item 8 of the Schedule 14D-9 is hereby amended and
supplemented by inserting the following text immediately before the subsection entitled Forward-Looking Statements:
Expiration of
the Offer.
At 11:59 p.m., New York City Time, on July 1, 2016 (the
Expiration Time
), the Offer expired as
scheduled and was not further extended. Computershare Trust Company, N.A., the depositary, advised that as of the Expiration Time, a total of 40,205,673 Shares were validly tendered into and not validly withdrawn from the Offer (not including
956,432 Shares tendered pursuant to notices of guaranteed delivery which had not been delivered to the depositary for the Offer prior to the expiration of the Offer), representing approximately 62.95% of the Shares outstanding as of the Expiration
Time. The number of Shares validly tendered into and not validly withdrawn from the Offer satisfies the Minimum Condition (as defined in the Offer to Purchase). All conditions to the Offer having been satisfied or waived, Parent and Purchaser
irrevocably accepted for payment and expect to promptly pay for all Shares validly tendered into and not validly withdrawn from the Offer.
Following the consummation of the Offer, Parent and Purchaser will complete the acquisition of the Company pursuant to the terms of the Merger
Agreement, through the merger of Purchaser with and into the Company, with the Company surviving.
Following the consummation of the
Merger, the Company will request that the NASDAQ Global Select Market (
NASDAQ
) remove the Shares from listing on NASDAQ. NASDAQ will file a Notification of Removal from Listing and/or Registration under Section 12(b) of the
Exchange Act and the regulations thereunder.
The full text of the press release issued on July 5, 2016, announcing the expiration
and results of the Offer, is incorporated herein by reference to Exhibit (a)(5)(D) to the Amendment No. 5 to the Schedule TO of Parent and Purchaser filed on July 5, 2016.
Item 9.
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Materials to be filed as Exhibits.
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Item 9 of the Schedule 14D-9 is hereby amended and
supplemented by adding the following exhibit thereto:
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Exhibit No.
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Description
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(a)(5)(D)
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Joint Press Release, dated July 5, 2016 (incorporated herein by reference to Exhibit (a)(5)(D) to Amendment No. 5 to the Schedule TO filed by Parent and Purchaser with the SEC on July 5, 2016)
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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: July 5, 2016
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By:
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/s/ William G. Harris
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Name:
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William G. Harris
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Title:
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Senior Vice President of Finance and
Chief
Financial Officer
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3
EXHIBIT INDEX
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Exhibit No.
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Description of Exhibits
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(a)(5)(D)
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Joint Press Release, dated July 5, 2016 (incorporated herein by reference to Exhibit (a)(5)(D) to Amendment No. 5 to the Schedule TO filed by Parent and Purchaser with the SEC on July 5, 2016)
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4
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