SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(a)
(AMENDMENT NO.__)*
XENOGEN CORPORATION
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
98410R108
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(CUSIP Number)
Stephen E. Creager, Esq.
Vice President and General Counsel
Caliper Life Sciences, Inc.
68 Elm Street
Hopkinton, MA 01748
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
February 10, 2006
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box __.
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Caliper Life Sciences, Inc.; 33-0675808
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
0
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 8,507,905(1)
OWNED BY
EACH ----------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,507,905 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 37.8% (2)
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Caliper Life Sciences, Inc. ("Caliper") has entered into Voting
Agreements dated as of February 10, 2006 with certain stockholders of
Xenogen Corporation ("Xenogen"), which provide that the signatory
stockholders will vote (or caused to be voted) in person or by proxy
all shares of Xenogen common stock held by such signatory in favor of
the adoption of the merger agreement with Caliper and against any
proposal or offer (other than the merger agreement and the proposed
merger), whether in writing or otherwise, from anyone other than
Caliper or its affiliates, to acquire beneficial ownership of (i)
assets that constitute or account for twenty percent (20%) or more of
the consolidated net revenues, consolidated net income or consolidated
assets of Xenogen, or (ii) twenty percent (20%) or more of any class of
equity securities of Xenogen, in each case pursuant to a merger,
consolidation or other business combination, sale of shares of stock,
sale of assets, tender offer, exchange offer or similar transaction or
series of related transactions (either, a "Competing Proposal"), and
against any other proposal properly put to a vote of the stockholders
of Xenogen that would be reasonably likely to result in or cause a
breach of Xenogen's representations and warranties set forth in the
merger agreement. Number reported includes 1,542,711 shares that are
subject to options, and 734,788 shares that are subject to warrants, to
purchase Xenogen common stock exercisable within 60 days of February
10, 2006.
(2) Based on 20,259,819 shares of Xenogen common stock outstanding as of
the close of business on February 9, 2006.
ITEM 1 - SECURITY AND ISSUER
This statement on Schedule 13D (the "Schedule 13D") relates to the
common stock, $0.001 par value per share (the "Shares" or the "Xenogen Common
Stock"), of Xenogen Corporation, a Delaware corporation ("Xenogen"). The
principal executive office of Xenogen is located at 860 Atlantic Avenue,
Alameda, CA 94501.
ITEM 2 - IDENTITY AND BACKGROUND
(a) - (c) This Schedule 13D is filed by Caliper Life Sciences, Inc., a
Delaware corporation ("Caliper"). The address of the principal business and
principal office of Caliper is 68 Elm Street, Hopkinton, MA 01748. Caliper's
principal business is focused on drug discovery and development, and Caliper is
a leading provider of drug discovery solutions for the pharmaceutical and
biotechnology industries.
As a result of entering into the Voting Agreements described in Items 3
and 4 below, Caliper may be deemed to have formed a "group" with each of the
Stockholders (as defined in Item 3 below) for purposes of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
13d-5(b)(1) thereunder. Caliper expressly declares that the filing of this
Schedule 13D shall not be construed as an admission by it that it has formed any
such group.
To the best of Caliper's knowledge as of the date hereof, the name,
business address, present principal occupation or employment and citizenship of
each executive officer and director of Caliper, and the name, principal business
and address of any corporation or other organization in which such employment is
conducted is set forth in Schedule I hereto. The information contained in
Schedule I is incorporated herein by reference.
(d) - (e) During the last five years, neither Caliper nor, to the best
knowledge of Caliper, any of the executive officers or directors of Caliper, has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or been a 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.
ITEM 3 - SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The information set forth or incorporated by reference in Item 4 is
hereby incorporated herein by reference.
ITEM 4 - PURPOSE OF TRANSACTION
Caliper and Xenogen entered into an Agreement and Plan of Merger dated
as of February 10, 2006 (the "Merger Agreement"). Pursuant to the Merger
Agreement, Xenogen will be merged with and into a wholly-owned subsidiary of
Caliper (the "Merger"), with the wholly-owned subsidiary of Caliper surviving
the Merger. In connection with the Merger, in exchange for Xenogen's outstanding
common shares and warrants to purchase common shares, Caliper will issue
approximately 13.2 million common shares and approximately 5.125 million
warrants to purchase Caliper common shares. These warrants will have a term of
five years from the closing and an exercise price of $6.79 per share. The final
exchange ratios for the issuance of Caliper common shares and warrants will be
based on the capitalization of Xenogen at the closing of the proposed
transaction. Based on Xenogen's current capitalization and certain assumptions
regarding the exercise of Xenogen stock options in the period prior to the
closing, each holder of a Xenogen common share would receive approximately 0.575
of a share of Caliper Common Stock and 0.223 of a warrant to acquire one Caliper
common share. Upon the timely exercise of their warrants, Xenogen warrant
holders will be entitled to receive the same number of Caliper common shares and
warrants as Xenogen's stockholders. The transaction is subject to the approval
of both Caliper and Xenogen stockholders, as well as standard regulatory
approvals.
Consummation of the Merger would result in the Xenogen Common Stock
ceasing to be outstanding or authorized to be quoted on The Nasdaq National
Market, Inc.'s National Market System. In addition, the registration of the
Xenogen Common Stock under Section 12 of the Exchange Act will be terminated.
In order to facilitate the consummation of the transactions
contemplated by the Merger Agreement and in consideration thereof, Caliper
entered into the Voting Agreements (the "Voting Agreements") dated February 10,
2006, with certain stockholders of Xenogen named therein (collectively, the
"Stockholders") whereby the stockholders will vote (or caused to be voted) in
person or by proxy all shares of Xenogen Common Stock held by such signatory in
favor of the adoption of the Merger Agreement and against any Competing
Proposal, and against any other proposal properly put to a vote of the
stockholders of Xenogen that would be reasonably likely to result in or cause a
breach of Xenogen's representations and warranties set forth in the Merger
Agreement. In addition, the Stockholders have executed a proxy in favor of
Caliper with respect to the voting of the Xenogen Common Stock. The Voting
Agreements terminate upon the earliest of (a) any withdrawal or modification of
the recommendation of the Xenogen board in favor of the adoption of the Merger
Agreement in a manner adverse to Caliper (including any modification of such
recommendation reflecting that the Xenogen board of directors no longer
recommends or supports the adoption of the Merger Agreement by the stockholders
of Xenogen) at any time prior to the effective time of the Merger (provided that
this clause (a) is only contained within the Voting Agreements of two of the
Stockholders who are signatories to the Voting Agreements), (b) the effective
time of the Merger, (c) the termination of the Merger Agreement in accordance
with its terms, (d) August 31, 2006, and (e) written notice of termination of
the Merger Agreement by Caliper to Stockholder. The name of each Stockholder and
the number of outstanding shares of Xenogen Common Stock held by each
Stockholder and subject to the Voting Agreements are set forth in the Form of
Voting Agreement attached as Exhibit 2 hereto and are incorporated herein by
reference.
References to, and descriptions of, the Merger Agreement and the Voting
Agreement as set forth above in Item 4 are qualified in their entirety by
reference to the copies of the Merger Agreement and the Form of Voting Agreement
included as Exhibits 1 and 2, respectively, to this Schedule 13D, and are
incorporated in this Item 4 in their entirety where such references and
descriptions appear.
Caliper does not have any right to dispose (or direct the disposition
of) any Xenogen Common Stock pursuant to the Voting Agreements. Accordingly,
Caliper expressly disclaims beneficial ownership of all such shares.
ITEM 5 - INTEREST IN SECURITIES OF THE ISSUER
(a) - (b) The number of Shares covered by the Voting Agreements is
8,507,905,(i) which constitutes approximately 37.8% of the issued and
outstanding shares of Xenogen Common Stock, based on the number of Shares issued
and outstanding on February 9, 2006, as represented by Xenogen in the Merger
Agreement. By virtue of the Voting Agreements, Caliper may be deemed to share
with the respective Stockholders the power to vote Shares subject to the Voting
Agreements. However, Caliper (1) is not entitled to any rights as a shareholder
of Xenogen as to the Shares covered by the Voting Agreements and (2) disclaims
any beneficial ownership of the Xenogen Common Stock which are covered by the
Voting Agreements. See the information in Items 2 and 3 with respect to the
Stockholders and the information in Items 3 and 4 with respect to the Voting
Agreements, which information is incorporated herein by reference. E. Kevin
Hrusovsky, Caliper's President and Chief Executive Officer, is also a member of
the Board of Directors of Xenogen and owns and has the sole power to vote and
dispose of 8,493 shares of Xenogen Common Stock.
(c) Other than as set forth in this Item 5(a)-(b), to the best of
Caliper's knowledge as of the date hereof (1) neither Caliper nor any subsidiary
or affiliate of Caliper nor any of Caliper's executive officers or directors,
beneficially owns any shares of Xenogen Common Stock, and (2) there have been no
transactions in the shares of Xenogen Common Stock effected during the past 60
days by Caliper, nor to the best of Caliper's knowledge, by any subsidiary or
affiliate of Caliper or any of Caliper's executive officers or directors.
(d) Not applicable.
(e) Not applicable.
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(i) Including 1,542,711 shares that are subject to options, and 734,788 shares
that are subject to warrants, to purchase Xenogen Common Stock exercisable
within 60 days of February 10, 2006.
Reference to, and descriptions of, the Merger Agreement and the Voting
Agreements as set forth in this Item 5 are qualified in their entirety by
reference to the copies of the Merger Agreement and the Form of Voting
Agreement, respectively, included as Exhibits 1 and 2 to this Schedule 13D, and
incorporated in this Item 5 in their entirety where such references and
descriptions appear.
ITEM 6 - CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The information set forth, or incorporated by reference, in Items 3
through 5 is hereby incorporated herein by reference. Copies of the Merger
Agreement and the Form of Voting Agreement are included as Exhibits 1 and 2,
respectively, to this Schedule 13D. To the best of Caliper's knowledge, except
as described in this Schedule 13D, there are at present no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 above and between any such persons and any person with
respect to any securities of Xenogen.
ITEM 7 - MATERIAL TO BE FILED AS EXHIBITS
Exhibit Description
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1 Agreement and Plan of Merger dated as of February 10, 2006 by
and among Caliper Life Sciences, Inc., Caliper Holdings, Inc.
and Xenogen Corporation (without exhibits). Incorporated by
reference herein from Exhibit 2.1 to the Current Report on
Form 8-K filed by Xenogen Corporation on February 16, 2006
(File No. 000-32239).
2 Form of Voting Agreement by and between Caliper Life Sciences,
Inc. and the stockholders of Xenogen Corporation named
therein. Incorporated by reference herein from Exhibit 2.3 to
the Current Report on Form 8-K filed by Xenogen Corporation on
February 16, 2006 (File No. 000-32239).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: February 21, 2006 /s/ Thomas T. Higgins
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Thomas T. Higgins
Executive Vice President and Chief
Financial Officer
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF CALIPER LIFE SCIENCES, INC.
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
Caliper Life Sciences, Inc. Except as indicated below, each such person is a
U.S. citizen, and the business address of each such person is 68 Elm Street,
Hopkinton, MA 01748.
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BOARD OF DIRECTORS
Name and Title Present Principal Occupation
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Van Billet, Director Van Billet has been a director of Caliper since
March 2004. Mr. Billet has served as Vice
President and Chief Financial Officer of The
Berwind Company LLC, a privately held
diversified holding company, since May 2002.
Robert C. Bishop, Ph.D., Robert C. Bishop, Ph.D. has been a director of
Director Caliper since April 2002. Dr. Bishop has served
as President and Chief Executive Officer of
AutoImmune Inc., a biopharmaceutical company,
since May 1992 and has been the Chairman of
AutoImmune's Board of Directors since May 1999.
Allan L. Comstock, Allan L. Comstock has been a director of Caliper
Director since September 2005. Mr. Comstock joined
Atlantic Richfield and Company (ARCO) in 1970
and was Vice President and Controller of ARCO
from 1993 until his retirement in 2000.
E. Kevin Hrusovsky, E. Kevin Hrusovsky was appointed President and
President, Chief Executive CEO of Caliper immediately following the
Officer and Director acquisition of Zymark Corporation, a liquid
handling instruments company, by Caliper in July
2003. Prior to the acquisition, Mr. Hrusovsky
had served as President and CEO of Zymark since
1996.
Daniel L. Kisner, M.D., Daniel L. Kisner, M.D has been a director of
Chairman of the Board Caliper since March 1999 and has served as
Chairman of the Board since July 2002. He is
currently a partner at Aberdare Ventures, a
venture capital firm investing in early stage
healthcare companies.
David V. Milligan, Ph.D., David V. Milligan, Ph.D. has been a director of
Vice Chairman of the Caliper since October 1996 and was the Chairman
Board of the Board until July 2002. He is currently
Vice-Chairman. He has been a Vice President and
Special Limited Partner of Bay City Capital, a
merchant bank, since 1997.
Kathryn Tunstall, Director Kathryn Tunstall has been a director of Caliper
since February 2004. Ms. Tunstall is Chairman of
the Board of Directors of Conceptus, Inc., a
public medical technology company. She served as
President and CEO of Conceptus from July 1993
through December 1999.
EXECUTIVE OFFICERS WHO ARE NOT DIRECTORS
Name and Title Present Principal Occupation
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Bruce J. Bal, Vice Bruce J. Bal currently serves as Vice President,
President, Operations and Operations and Service, and was appointed to the
Service position of Vice President, Operations and
Aftermarket Businesses following the combination
of Caliper with Zymark. Mr. Bal joined Zymark in
1997 as Vice President of R&D and Operations.
Stephen E. Creager, Vice Stephen E. Creager joined Caliper in October
President and General 2002 as Associate General Counsel and was
Counsel appointed Vice President and General Counsel in
June 2003.
Thomas T. Higgins, Thomas T. Higgins joined Caliper in January 2005
Executive Vice President as Executive Vice President and Chief Financial
and Chief Financial Officer Officer. Prior to joining Caliper, Mr. Higgins
served as Executive Vice President, Operations
and Chief Financial Officer at V.I.
Technologies, Inc. (now Panacos Pharmaceuticals,
Inc.), a biotechnology company developing novel
anti-infective technologies.
David M. Manyak, David M. Manyak was appointed Executive Vice
Executive Vice President, President, Screening Services, of Caliper in
Screening Services connection with Caliper's acquisition of
NovaScreen Biosciences in October 2005. Prior to
the acquisition, Mr. Manyak had served as
President and Chief Executive Officer of
NovaScreen, which he joined as President in
1992.
Peter F. McAree, Vice Peter F. McAree was appointed to the position of
President, Finance Vice President, Finance following the
combination of Caliper with Zymark. Mr. McAree
joined Zymark as Chief Financial Officer in May
2001 after serving in the same capacity as an
independent consultant since November 2000.