Page 23 of 32 – SEC Filing (d) No Reporting Person, nor any person listed on Schedule A to the Schedule 13D, annexed thereto, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) No Reporting Person, nor any person listed on Schedule A to the Schedule 13D, annexed thereto, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Messrs. Smith, Mitchell, Feld, Molinelli, Delucca, Fogarty, Lankau, Savage, Tyree and Ms. Pendergast are citizens of the United States of America. The citizenship of the persons listed on Schedule A to the Schedule 13D is set forth therein. Item 4. Purpose of Transaction.
Item 4 is hereby amended to add the following:
On July 26, 2016, Starboard Value LP and its affiliates (collectively, “Starboard”) delivered a letter to the Issuer’s shareholders, a copy of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference. In the letter, Starboard announced that it has appointed two exceptionally qualified advisors, Robert G. Savage and James L. Tyree (the “Advisors”), to assist in its solicitation efforts to call a special meeting of shareholders (the “Special Meeting”), given the Advisors significant industry knowledge and experience, as exemplified by their biographies below. Starboard explained in the letter that given the extensive requirements and restrictions under the Issuer’s Bylaws for calling the Special Meeting, the addition of any new, highly qualified nominees to its slate at this time would effectively require it to submit a new record date request notice to the Issuer, thereby restarting the clock under the Bylaws for the Special Meeting and further delaying its efforts to remove and replace the Board. Starboard further stated that if its Special Meeting solicitation ultimately proves successful, Starboard would invite Messrs. Savage and Tyree to join the Board, and that they have indicated their desire to do so. Starboard expressed its belief in the letter that together, the Advisors and current Board nominees would create an all-star Board that would work diligently and collaboratively to protect and represent the best interests of shareholders. In addition, Starboard explained that in order to maintain a degree of continuity amidst the required change that it believes is desperately needed at the Issuer, in the event the current Board is removed and its nominees are elected at the Special Meeting, the new Board would be willing to increase the size of the Board to nine members (currently there are six members; adding the Advisors would expand the Board to eight members) and add back one incumbent director. In the letter, Starboard also announced that it will proceed with its original solicitation to call the Special Meeting by going through the procedures required for a shareholder to call a special meeting under the Issuer’s Bylaws by soliciting the support of the holders of at least 10% of the Issuer’s outstanding Shares entitled to vote. Starboard explained in the letter that following the Issuer’s receipt of Starboard’s initial record date request notice on April 7, 2016, the Board responded promptly by setting a record date for April 26th or less than three weeks later. Starboard stated that the Issuer knew that its initial record date request notice was a placeholder and that Starboard would be revising its slate of nominees, which would require that Starboard submit a new record date request notice under the Issuer’s onerous Bylaws. Accordingly, on May 26, 2016, Starboard delivered the new record date request notice to the Issuer with its updated Board slate and the Board responded by setting a record date of August 19, 2016, or close to three months later, which Starboard noted is almost the full extent the Board is permitted to delay such an action under the Issuer’s Bylaws and in stark contrast to Jim Schoeneck’s commentary to shareholders on April 25, 2016 that “the selection of an early meeting date is in the best interest of Depomed and its shareholders.” Starboard expressed its belief in the letter that when the Issuer realized that Starboard had assembled a highly qualified slate, the Issuer no longer wished to hold the meeting as soon as possible, which is yet another example of the Board attempting to disenfranchise shareholders and further entrench itself. Starboard stated that it sees the Board’s rationale of basing the prolonged meeting date on the NUCYNTA litigation as a classic “bait-and-switch” as there was no mention of delaying the Special Meeting until the outcome of the pending NUCYNTA patent litigation upon Starboard’s first placeholder nomination. Starboard further explained in the letter that given its ownership stake, and that calling the Special Meeting would only require one shareholder to consent, it has decided, at this point, to control the timing of the Special Meeting and will proceed with its SEC-compliant solicitation process to ensure that shareholders have their voices heard, and to prevent the Issuer from any further attempts to manipulate Starboard’s Special Meeting process and further disenfranchise shareholders with needless stratagems. Biographies of each of the Advisors: Follow Assertio Therapeutics Inc (NASDAQ:ASRT)
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(d) No Reporting Person, nor any person listed on Schedule A to the Schedule 13D, annexed thereto, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person, nor any person listed on Schedule A to the Schedule 13D, annexed thereto, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Messrs. Smith, Mitchell, Feld, Molinelli, Delucca, Fogarty, Lankau, Savage, Tyree and Ms. Pendergast are citizens of the United States of America. The citizenship of the persons listed on Schedule A to the Schedule 13D is set forth therein.
| Item 4. | Purpose of Transaction. |
| | Item 4 is hereby amended to add the following: |
On July 26, 2016, Starboard Value LP and its affiliates (collectively, “Starboard”) delivered a letter to the Issuer’s shareholders, a copy of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference. In the letter, Starboard announced that it has appointed two exceptionally qualified advisors, Robert G. Savage and James L. Tyree (the “Advisors”), to assist in its solicitation efforts to call a special meeting of shareholders (the “Special Meeting”), given the Advisors significant industry knowledge and experience, as exemplified by their biographies below. Starboard explained in the letter that given the extensive requirements and restrictions under the Issuer’s Bylaws for calling the Special Meeting, the addition of any new, highly qualified nominees to its slate at this time would effectively require it to submit a new record date request notice to the Issuer, thereby restarting the clock under the Bylaws for the Special Meeting and further delaying its efforts to remove and replace the Board. Starboard further stated that if its Special Meeting solicitation ultimately proves successful, Starboard would invite Messrs. Savage and Tyree to join the Board, and that they have indicated their desire to do so. Starboard expressed its belief in the letter that together, the Advisors and current Board nominees would create an all-star Board that would work diligently and collaboratively to protect and represent the best interests of shareholders. In addition, Starboard explained that in order to maintain a degree of continuity amidst the required change that it believes is desperately needed at the Issuer, in the event the current Board is removed and its nominees are elected at the Special Meeting, the new Board would be willing to increase the size of the Board to nine members (currently there are six members; adding the Advisors would expand the Board to eight members) and add back one incumbent director.
In the letter, Starboard also announced that it will proceed with its original solicitation to call the Special Meeting by going through the procedures required for a shareholder to call a special meeting under the Issuer’s Bylaws by soliciting the support of the holders of at least 10% of the Issuer’s outstanding Shares entitled to vote. Starboard explained in the letter that following the Issuer’s receipt of Starboard’s initial record date request notice on April 7, 2016, the Board responded promptly by setting a record date for April 26th or less than three weeks later. Starboard stated that the Issuer knew that its initial record date request notice was a placeholder and that Starboard would be revising its slate of nominees, which would require that Starboard submit a new record date request notice under the Issuer’s onerous Bylaws. Accordingly, on May 26, 2016, Starboard delivered the new record date request notice to the Issuer with its updated Board slate and the Board responded by setting a record date of August 19, 2016, or close to three months later, which Starboard noted is almost the full extent the Board is permitted to delay such an action under the Issuer’s Bylaws and in stark contrast to Jim Schoeneck’s commentary to shareholders on April 25, 2016 that “the selection of an early meeting date is in the best interest of Depomed and its shareholders.”
Starboard expressed its belief in the letter that when the Issuer realized that Starboard had assembled a highly qualified slate, the Issuer no longer wished to hold the meeting as soon as possible, which is yet another example of the Board attempting to disenfranchise shareholders and further entrench itself. Starboard stated that it sees the Board’s rationale of basing the prolonged meeting date on the NUCYNTA litigation as a classic “bait-and-switch” as there was no mention of delaying the Special Meeting until the outcome of the pending NUCYNTA patent litigation upon Starboard’s first placeholder nomination. Starboard further explained in the letter that given its ownership stake, and that calling the Special Meeting would only require one shareholder to consent, it has decided, at this point, to control the timing of the Special Meeting and will proceed with its SEC-compliant solicitation process to ensure that shareholders have their voices heard, and to prevent the Issuer from any further attempts to manipulate Starboard’s Special Meeting process and further disenfranchise shareholders with needless stratagems.
Biographies of each of the Advisors:
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