0001193125-16-600983.txt : 20160525 0001193125-16-600983.hdr.sgml : 20160525 20160524203354 ACCESSION NUMBER: 0001193125-16-600983 CONFORMED SUBMISSION TYPE: SC TO-C PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20160525 DATE AS OF CHANGE: 20160524 SUBJECT COMPANY: 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: SC TO-C SEC ACT: 1934 Act SEC FILE NUMBER: 005-85795 FILM NUMBER: 161673265 BUSINESS ADDRESS: STREET 1: 5858 HORTON STREET, #455 CITY: EMERYVILLE STATE: CA ZIP: 94608 BUSINESS PHONE: (510) 550-8300 MAIL ADDRESS: STREET 1: 5858 HORTON STREET, #455 CITY: EMERYVILLE STATE: CA ZIP: 94608 FORMER COMPANY: FORMER CONFORMED NAME: ZOGENIX INC DATE OF NAME CHANGE: 20060911 FILED BY: 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: SC TO-C BUSINESS ADDRESS: STREET 1: 5858 HORTON STREET, #455 CITY: EMERYVILLE STATE: CA ZIP: 94608 BUSINESS PHONE: (510) 550-8300 MAIL ADDRESS: STREET 1: 5858 HORTON STREET, #455 CITY: EMERYVILLE STATE: CA ZIP: 94608 FORMER COMPANY: FORMER CONFORMED NAME: ZOGENIX INC DATE OF NAME CHANGE: 20060911 SC TO-C 1 d123021dsctoc.htm SC TO-C SC TO-C

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

(Rule 14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No.     )

 

 

Zogenix, Inc.

(Name of Subject Company (Issuer) and Filing Person (Offeror))

Common Stock, $0.001 par value per share

(Title of Class of Securities)

98978L105

(CUSIP Number of Class of Securities (Underlying Common Stock))

Ann D. Rhoads

Executive Vice President, Chief Financial Officer, Treasurer and Secretary

5858 Horton Street, #455

Emeryville, CA 94608

(510) 550-8300

(Name, Address, and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Person)

 

 

Copies to:

Cheston J. Larson, Esq.

Matthew T. Bush, Esq.

Latham & Watkins LLP

505 Montgomery Street, Suite 2000

San Francisco, CA 94111

(415) 391-0600

 

 

Calculation of Filing Fee

 

Transaction valuation   Amount of filing fee*
N/A   N/A
 
* Pursuant to General Instruction D to Schedule TO, a filing fee is not required in connection with this filing as it relates solely to preliminary communications made before the commencement of a tender offer.

 

¨  Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

Amount Previously Paid:    N/A                    Filing Party:    N/A
Form or Registration No.:    N/A                    Date Filed:    N/A

 

x  Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

  ¨  third party tender offer subject to Rule 14d-1.
  x  issuer tender offer subject to Rule 13e-4.
  ¨  going-private transaction subject to Rule 13e-3.
  ¨  amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer: ¨

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

 

  ¨  Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
  ¨  Rule 14d-1(d) (Cross-Border Third Party Tender Offer)

 

 

 

Attached are (i) the Preliminary Proxy Statement for the Annual Meeting of Stockholders of Zogenix, Inc. (“Zogenix” or the “Company”) to be held on July 13, 2016 (the “Preliminary Proxy Statement”), which contains a proposal submitted to the Company’s stockholders to approve a one-time stock option exchange program for employees and consultants other than the Company’s Chief Executive Officer and directors (the “Option Exchange Program”), and (ii) a written communication sent by the President and Chief Executive Officer of Zogenix to the Company’s employees on May 24, 2016 regarding the Option Exchange Program. Neither the Preliminary Proxy Statement nor the communication attached as an exhibit to this Schedule TO constitute an offer to holders of the Company’s outstanding stock options to exchange those options. The proposed Option Exchange Program will only be commenced, if at all, if the Company’s stockholders approve the proposed Option Exchange Program.

The Option Exchange Program has not yet commenced. Zogenix will file a Tender Offer Statement on Schedule TO with the Securities and Exchange Commission (the “Commission”), upon the commencement of the Option Exchange Program. Persons who are eligible to participate in the Option Exchange Program should read the Tender Offer Statement on Schedule TO and other related materials when those materials become available, because they will contain important information about the Option Exchange Program.

In connection with the proposal to be voted on by Zogenix’s stockholders with respect to the Option Exchange Program, Zogenix has filed the Preliminary Proxy Statement with the Commission and intends to file other relevant materials with the Commission, including a definitive proxy statement. Zogenix stockholders are urged to read such materials as and when they become available and before making any voting decision regarding the Option Exchange Program, because they will contain important information about the proposal to be voted on by stockholders with respect to the Option Exchange Program.

Zogenix stockholders and option holders will be able to obtain the written materials described above and other documents filed by Zogenix with the Commission free of charge from the Commission’s website at www.sec.gov. In addition, stockholders and option holders may obtain free copies of the documents filed by Zogenix with the Commission by directing a written request to: Zogenix, Inc., 5858 Horton Street, #455, Emeryville, CA 94608, Attention: Corporate Secretary.

 

Item 12. Exhibits.

 

Exhibit
Number

   

Description

99.1    Preliminary Proxy Statement for the 2016 Annual Meeting of Stockholders (filed with the SEC on May 24, 2016 and incorporated herein by reference).
99.2    Communication from the President and Chief Executive Officer of Zogenix, to Zogenix employees regarding the proposed Option Exchange Program, dated May 24, 2016.
 EX-99.2 2 d123021dex992.htm EX-99.2 EX-99.2

EXHIBIT 99.2

May 24, 2016

Dear Zogenix Employees,

I am pleased to announce that a proposal to offer a voluntary stock option exchange program (“Option Exchange Program”) for certain eligible employees and consultants will be submitted to stockholders for their approval at Zogenix’s 2016 Annual Meeting on July 13, 2016. At Zogenix, we believe that an effective and competitive incentive program is critical for the success of our business. The broad-based stock option program constitutes a key component of our incentive and retention programs because we believe that equity compensation encourages employees to act like owners of the business, motivating them to work toward our success and rewarding their contributions by allowing them to benefit from increases in the value of our shares.

Due to the high volatility and decline of our stock price during the last few years, many of our employees now hold stock options with exercise prices significantly higher than the current market price of our common stock (known as “underwater” stock options). If we receive stockholder approval, the Option Exchange Program would give eligible participants a one-time opportunity to exchange certain outstanding underwater stock options for a lesser amount of new options that will be granted with lower exercise prices. The number of new stock options would be determined using exchange ratios designed to result in the new stock options having a fair value approximately equal to the stock options that are exchanged.

More information about the Option Exchange Program being proposed to stockholders can be found in our preliminary proxy statement filed with the Securities and Exchange Commission (“SEC”) on May 24, 2016.

If we receive the necessary stockholder approval, we will send additional detailed information about the terms of the Option Exchange Program to eligible participants at the time the Option Exchange Program begins.

Sincerely,

/s/ Stephen J. Farr

Stephen J. Farr, Ph.D.

Chief Executive Officer

Key Legal Disclosure

The stock option exchange described in this letter has not yet commenced. Zogenix will file a Tender Offer Statement on Schedule TO with the SEC upon the commencement of the stock option exchange. Persons who are eligible to participate in the stock option exchange should read the Tender Offer Statement on Schedule TO and other related materials when those materials become available, because they will contain important information about the stock option exchange.

In connection with the proposal to be voted on by Zogenix’s stockholders with respect to the stock option exchange discussed in this letter, Zogenix has filed a preliminary proxy statement with the SEC and intends to file other relevant materials with the SEC, including a definitive proxy statement. Zogenix stockholders are urged to read such materials as and when they become available and before making any voting decision regarding the stock option exchange proposal because they will contain important information about the proposal to be voted on by stockholders referenced in this letter with respect to the stock option exchange.

Zogenix stockholders and option holders will be able to obtain the written materials described above and other documents filed by Zogenix with the SEC free of charge from the SEC’s website at www.sec.gov. In addition, stockholders and option holders may obtain free copies of the documents filed by Zogenix with the SEC by directing a written request to: Zogenix, Inc., 5858 Horton Street, #455, Emeryville, CA 94608, Attention: Corporate Secretary.