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 Companys stockholders to approve a one-time stock option exchange program for employees and consultants other than the Companys 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 Companys 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 Companys outstanding stock options to exchange those options. The proposed Option Exchange Program will only be commenced, if at all, if the Companys 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 Zogenixs 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 Commissions 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 |
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. |
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 Zogenixs 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 Zogenixs 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 SECs 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.