SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of
Date of Report (Date of earliest event reported): November 8, 2012
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation)
|(Commission File No.)
||(IRS Employer Identification No.)|
3410 Central Expressway
Santa Clara, California 95051
(Address of principal executive offices)
Registrants telephone number, including area code (408) 616-7200
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1 Registrants Business and Operations
Item 1.01 Entry into a Material Definitive Agreement
The information in Item 1.02 below is incorporated by reference into this Item 1.01.
Item 1.02 Termination of a Material Definitive Agreement
On November 8, 2012, XenoPort, Inc. (the Company or XenoPort) reached an agreement with Glaxo Group Limited (GSK) to terminate that certain Amended and Restated
Development and Commercialization Agreement, dated November 7, 2010, between the Company and GSK (the Collaboration Agreement). Pursuant to the Collaboration Agreement, the Company had granted to GSK exclusive commercialization and
certain development rights in the United States to gabapentin enacarbil, known in the United States by the trade name Horizant® (gabapentin enacarbil) Extended-Release Tablets. Under the terms of the Collaboration Agreement, the Company was eligible to receive a total of $312.5 million in
aggregate clinical and regulatory event-based milestone payments and up to an additional $290.0 million in milestone payments upon the achievement of specified sales levels, and also shared losses or any profits with GSK on sales of Horizant
in the United States.
The termination of the Collaboration Agreement was effected pursuant to a Termination and Transition Agreement entered
into between the parties on November 8, 2012 (the Termination Agreement), with the termination of the Collaboration Agreement effective on that date. The Termination Agreement also provides for a mutual release of claims and
resolves all ongoing litigation between the parties.
Under the terms of the Termination Agreement, during a transition period that will end
on April 30, 2013 (the Transition Period), GSK will continue to exclusively commercialize, promote, manufacture and distribute Horizant in the United States. XenoPort will not be responsible for any losses associated with the
terminated Collaboration Agreement, is no longer eligible to receive any further milestone payments from GSK provided for under the terminated Collaboration Agreement and will not receive any revenue or incur any losses from GSKs sales of
Horizant during the Transition Period. GSK will also continue to fully fund the costs associated with the management and conduct of clinical studies initiated by GSK prior to the date of the Termination Agreement. In addition, prior to the
end of the Transition Period, GSK will provide to XenoPort inventory of gabapentin enacarbil in GSKs possession that is not required for use by GSK in the manufacture of Horizant. In exchange for such inventory, XenoPort will make
annual payments to GSK of $1.0 million for six years beginning in 2016. Following the Transition Period, XenoPort will assume all responsibilities for further development, manufacturing and commercialization of Horizant in the United States.
GSK has also agreed that, if requested by XenoPort, GSK will continue to supply Horizant tablets to XenoPort for up to an additional six months following the Transition Period on pricing terms established under the Termination Agreement and
to be further memorialized in a supply agreement to be entered into between the parties.
Pursuant to a separate Stock Purchase Agreement
entered into between the parties on November 8, 2012 (the Purchase Agreement), GSK purchased $20.0 million of common stock of XenoPort on November 9, 2012 (the Closing Date), or an aggregate of 1,841,112 shares (the
Initial Shares) at $10.863 per share, which per share price represents a 12.5 percent premium to the average of the closing prices of XenoPorts common stock for the 10 trading days prior to October 31, 2012. In addition,
XenoPort was granted the option (the Put Option), exercisable during the period for six months from the Closing Date, to require GSK to purchase up to an additional $20.0 million of common stock of XenoPort at a 12.5 percent premium to
the average of the closing prices of XenoPorts common stock for the 10 trading days prior to the day XenoPort notifies GSK of its decision to exercise this option. On November 9, 2012, XenoPort exercised the Put Option in full and
notified GSK of the same. Pursuant to the terms of the Purchase Agreement, GSK will purchase an additional 2,190,100 shares (the Put Shares and together with the Initial Shares, the Shares) at $9.132 per share, which per
share price represents a 12.5 percent premium to the average of the closing prices of XenoPorts common stock for the 10 trading days prior to November 9, 2012. The closing of the purchase and sale of the Put Shares is expected to occur on
or prior to December 10, 2012.
The foregoing is only a brief description of the material terms of the Collaboration Agreement, the
Termination Agreement and the Purchase Agreement, does not purport to be complete, and is qualified in its entirety by reference to (i) the Collaboration Agreement that was filed as Exhibit 10.31 to the Companys Annual Report on Form
10-K, filed with the Securities and Exchange Commission on February 29, 2012, and (ii) the Termination Agreement and the Purchase Agreement, each of which will be filed as exhibits to the Companys Annual Report on Form 10-K for the
year ending December 31, 2012.
Section 3 Securities and Trading Markets
Item 3.02 Unregistered Sales of Equity Securities
Reference is made to the description set forth under Item 1.02 above with respect to the Purchase Agreement and the offer and sale of the Shares thereunder, which is incorporated by reference into
this Item 3.02. Because the Shares were offered and sold to an accredited investor in a transaction not involving a public offering, the transaction is exempt from registration under the Securities Act of 1933, as amended (the Act),
in accordance with Section 4(2) and Rule 506 of Regulation D under the Act.
This current report contains forward-looking statements, including, without limitation, all statements related to the transition of all
Horizant product rights from GSK to XenoPort and the timing thereof; transition activities, including GSKs conduct and funding of clinical trials; the closing of the purchase and sale of the Put Shares and the timing thereof; the terms
of a future supply agreement, if any; and the further development, manufacturing and commercialization of Horizant in the United States by XenoPort following the Transition Period. Words such as will, would,
expect and similar expressions are intended to identify forward-looking statements. These forward-looking statements are based upon XenoPorts current expectations. Forward-looking statements involve risks and uncertainties.
XenoPorts actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation, risks related to
XenoPorts dependence on GSK for further development, manufacturing and commercialization of Horizant during the Transition Period and as a potential source of supply thereafter; GSKs ability to fund and conduct clinical trials as
agreed between the parties; XenoPorts ability to satisfy the conditions precedent to the closing of the purchase and sale of the Put Shares; XenoPorts ability to establish sales, marketing and distribution capabilities to market
Horizant following the Transition Period, or to enter into arrangements with third parties to do so, including the risk that XenoPorts failure to establish or contract for these capabilities could interrupt, delay or otherwise adversely
affect the commercialization of Horizant; and XenoPorts cash position and need for additional capital. These and other risk factors are discussed under the heading Risk Factors in XenoPorts Quarterly Report on Form
10-Q for the quarter ended September 30, 2012, filed with the Securities and Exchange Commission on October 25, 2012. XenoPort expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any
forward-looking statements contained herein to reflect any change in the companys expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
|Dated: November 13, 2012
/s/ William G. Harris
||William G. Harris|
||Senior Vice President of Finance and|
||Chief Financial Officer|