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0001193125-13-026016.txt : 20130315 0001193125-13-026016.hdr.sgml : 20130315 20130128154653 ACCESSION NUMBER: 0001193125-13-026016 CONFORMED SUBMISSION TYPE: CORRESP PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20130128 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ZOGENIX, INC. CENTRAL INDEX KEY: 0001375151 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 205300780 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: CORRESP BUSINESS ADDRESS: STREET 1: 12400 HIGH BLUFF DRIVE STREET 2: SUITE 650 CITY: SAN DIEGO STATE: CA ZIP: 92130 BUSINESS PHONE: (858) 259-1165 MAIL ADDRESS: STREET 1: 12400 HIGH BLUFF DRIVE STREET 2: SUITE 650 CITY: SAN DIEGO STATE: CA ZIP: 92130 FORMER COMPANY: FORMER CONFORMED NAME: ZOGENIX INC DATE OF NAME CHANGE: 20060911 CORRESP 1 filename1.htm CORRESPONDENCE


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Re:

Comment Letter dated January 17, 2013 to Zogenix, Inc.

Registration Statement on Form S-3

Filed January 7, 2013, File No. 333-185901

Ladies and Gentlemen:

We are in receipt of the Staff’s letter dated January 17, 2013 with respect to the above-referenced Registration Statement (the “Registration Statement”). We are responding to the Staff’s comment on behalf of Zogenix, Inc. (“Zogenix” or the “Company”) as set forth below. For ease of reference, we have set forth the Staff’s comment and the response below.

FORM S-3

General

1.	Please revise your registration statement to include on the cover page a statement as to the number of shares of common stock you have sold under General Instruction I.B.6 of Form S-3 during the last twelve calendar months.

Zogenix’s Response: Zogenix respectfully advises the Staff that the Registration Statement was filed pursuant to General Instruction I.B.1 of Form S-3, and not General Instruction I.B.6 of Form S-3. Pursuant to our conversation with the Staff, the analysis set forth below demonstrates that the aggregate market value of the voting and non-voting common equity held by non-affiliates of the Company is more than $75,000,000, as required pursuant to General Instruction I.B.1 of Form S-3.

As of January 4, 2013, 41,252,414 shares of common equity were held by non-affiliates of the Company. As of November 26, 2012, a date which was within 60 days prior to the date the Registration Statement was filed, the closing price of the Company’s common stock on the Nasdaq Global Market was $2.73 per share. Pursuant to Compliance and Disclosure Interpretation 116.06, the date used to determine the amount of shares of common equity held by non-affiliates and the price of the common equity need not be the same. As such, the Company’s public float was $112,619,090 as of the applicable calculation date.

January 28, 2013

Page 2

* * *

Thank you for your assistance in this matter. If you have any questions or comments regarding the foregoing, please do not hesitate to contact the undersigned at (858) 523-5435.

Very truly yours,

/s/ Cheston J. Larson

Cheston J. Larson

of LATHAM & WATKINS LLP

cc:	Roger L. Hawley, Zogenix, Inc.

Ann D. Rhoads, Zogenix, Inc.

Scott N. Wolfe, Latham & Watkins LLP