- Tender offer statement by Third Party (SC TO-T)
January 23 2009 - 5:10PM
Edgar (US Regulatory)
UNITED
STATES
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
AVIGEN,
INC
.
(Name of
Subject Company)
BVF
ACQUISITION LLC
(Names of
Filing Persons—Offeror)
COMMON
STOCK, PAR VALUE $0.001 PER SHARE
(Title of
Class of Securities)
053690103
(CUSIP
Number of Class of Securities)
MARK
N. LAMPERT
Biotechnology
Value Fund, L.P.
900 North
Michigan Avenue, Suite 1100
Chicago,
Illinois 60611
(312)
506-6500
(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and
Communications on Behalf of Filing Persons)
Copies
to:
ADAM W.
FINERMAN, ESQ.
Olshan
Grundman Frome Rosenzweig & Wolosky LLP
Park
Avenue Tower
65 East
55
th
Street
New York,
New York 10022
(212)
451-2300
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Transaction
Valuation*
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Amount
of Filing Fee**
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$20,949,515
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$823.32
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*
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Estimated
for purposes of calculating the amount of filing fee only. Transaction
value derived by multiplying 20,949,515 (the maximum number of shares of
common stock of subject company estimated to be acquired by Offeror) by
$1.00 (the purchase price per share offered by
Offeror).
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**
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The
amount of the filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended, equals $39.30 per $1,000,000
of the value of the
transaction.
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¨
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Check
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.
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Amount Previously Paid:
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Not applicable.
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Filing Party:
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Not applicable.
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Form
or Registration No.:
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Not
applicable.
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Date
Filed:
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Not
applicable.
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¨
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:
x
third-party
tender offer subject to Rule 14d-1.
¨
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:
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¨
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Rule
13e-4(i) (Cross-Border Issuer Tender Offer)
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¨
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Rule
14d-1(d) (Cross-Border Third-Party Tender
Offer)
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Items
1 through 9, and Item 11.
This
Tender Offer Statement on Schedule TO is filed by BVF Acquisition LLC, a
Delaware limited liability company (the “Purchaser”), and wholly owned
subsidiary of Biotechnology Value Fund, L.P., a Delaware limited partnership.
This Schedule TO relates to the offer by the Purchaser to purchase all of the
outstanding shares of common stock, par value $0.001 per share (the “Shares”),
of Avigen, Inc., a Delaware corporation (the “Company”), at $1.00 per Share, net
to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated January 23, 2009 (the
“Offer to Purchase”), and in the related Letter of Transmittal, copies of which
are attached hereto as Exhibits (a)(1)(i) and (a)(1)(ii), respectively (which,
together with any amendments or supplements thereto, collectively constitute the
“Offer”). The information set forth in the Offer to Purchase and the related
Letter of Transmittal is incorporated herein by reference with respect to Items
1 through 9 and 11 of this Schedule TO.
Item
10. Financial Statements.
The
Purchaser does not believe its financial statements are material to persons
considering the Offer because: (i) the Offer is for cash; (ii) the Purchaser
will have the ability to fund the transaction and the Offer is not subject to
any financing condition; and (iii) the Offer is for all of the outstanding
Shares.
Item
12. Exhibits.
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(a)(1)(i)
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Offer
to Purchase, dated January 23, 2009.
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(a)(1)(ii)
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Form
of Letter of Transmittal.
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(a)(1)(iii)
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Form
of Notice of Guaranteed Delivery.
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(a)(1)(iv)
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Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
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(a)(1)(v)
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Form
of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
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(a)(1)(vi)
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Guidelines
for Certification of Taxpayer Identification Number on Substitute Form
W-9.
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(a)(1)(vii)
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Form
of Summary Advertisement, dated January 23, 2009.
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(a)(5)(i)
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Text
of Press Release issued by the Purchaser, dated January 23,
2009.
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(a)(5)(ii)
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Text
of Press Release issued on January 15, 2009.*
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(b)
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Not
applicable.
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(d)
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Not
applicable.
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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* Previously
filed.
SIGNATURE
After due
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.
Dated: January
23, 2009
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BVF
ACQUISITION LLC
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By:
Biotechnology Value Fund, L.P., its sole member
By:
BVF Partners L.P., its general partner
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By:
BVP Inc., its general partner
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By:
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Name:
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Mark
N. Lampert
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Title:
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President
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EXHIBIT
INDEX
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(a)(1)(i)
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Offer
to Purchase, dated January 23, 2009.
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(a)(1)(ii)
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Form
of Letter of Transmittal.
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(a)(1)(iii)
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Form
of Notice of Guaranteed Delivery.
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(a)(1)(iv)
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Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
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(a)(1)(v)
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Form
of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
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(a)(1)(vi)
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Guidelines
for Certification of Taxpayer Identification Number on Substitute Form
W-9.
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(a)(1)(vii)
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Form
of Summary Advertisement, dated January 23, 2009.
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(a)(5)(i)
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Text
of Press Release issued by the Purchaser, dated January 23,
2009.
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(a)(5)(ii)
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Text
of Press Release issued on January 15, 2009.*
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(b)
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Not
applicable.
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(d)
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Not
applicable.
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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