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
(Amendment
No. 1)
AVIGEN,
INC
.
(Name of
Subject Company)
________________________
BVF
ACQUISITION LLC
BIOTECHNOLOGY
VALUE FUND, L.P.
BIOTECHNOLOGY
VALUE FUND II, L.P.
BVF
INVESTMENTS, L.L.C.
INVESTMENT
10, L.L.C.
BVF
PARTNERS L.P.
BVF
INC.
MARK
N. LAMPERT
(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
|
|
Transaction
Valuation*
|
|
Amount
of Filing Fee**
|
|
|
|
|
$20,949,515
|
|
$823.32
|
|
*
|
|
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).
|
**
|
|
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.
|
x
|
|
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.
|
|
Amount Previously Paid:
|
$823.32
|
|
Filing Party:
|
BVF
Acquisition LLC
|
|
Form
or Registration No.:
|
Schedule
TO-T
|
|
Date
Filed:
|
January
23,
2009
|
¨
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:
|
¨
|
Rule
13e-4(i) (Cross-Border Issuer Tender
Offer)
|
|
¨
|
Rule 14d-1(d) (Cross-Border
Third-Party Tender Offer)
|
This
Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer
Statement on Schedule TO (the “Schedule TO”), originally filed by BVF
Acquisition LLC (the “Purchaser”) with the Securities and Exchange Commission on
January 23, 2009, relating 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
were filed as Exhibits (a)(1)(i) and (a)(1)(ii) to the Schedule TO. All
references to Sections in this Amendment are to Sections of the Offer to
Purchase. Capitalized terms used and not otherwise defined in this Amendment
shall have the meanings assigned to them in the Offer to Purchase or the
Schedule TO, as applicable.
All
information set forth in the Offer to Purchase filed as Exhibit (a)(1)(i) to the
Schedule TO is incorporated by reference in answer to Items 1 through 11 in the
Schedule TO, except those items as to which information is specifically provided
herein.
Items
1 through 11.
The Offer
to Purchase is hereby amended by:
Cover
Page
Replacing
the first sentence of the cover page with the following:
Upon
the terms and subject to the conditions described in this Offer to Purchase and
the accompanying Letter of Transmittal (which together, as they may be amended
and supplemented from time to time, constitute the “Offer”), BVF Acquisition
LLC, a Delaware limited liability company (the “Purchaser,” “we,” or “us”), is
offering to purchase all outstanding shares of common stock, par value $0.001
per share (the “Shares”) of Avigen, Inc., a Delaware corporation (“Avigen” or
the “Company”), at a price per Share of $1.00, net to the seller in cash, less
any applicable withholding taxes and without interest. The Purchaser’s members
are Biotechnology Value Fund, L.P. (“BVF”), a Delaware limited partnership,
Biotechnology Value Fund II, L.P., a Delaware limited partnership (“BVF2”), BVF
Investments, L.L.C., a Delaware limited liability company (“BVLLC”), and
Investment 10, L.L.C., an Illinois limited liability company (“ILL10”), which
entities we refer to as the “BVF Funds.” Mark N. Lampert is the owner, sole
director and an officer of BVF Inc., a Delaware corporation (“BVF Inc.”), which
is the general partner of BVF Partners, L.P., a Delaware limited partnership
(“Partners”). Partners serves as the general partner of BVF and BVF2,
the manager of BVLLC and the investment adviser of ILL10. Partners
and BVF Inc. may each be deemed to beneficially own 8,819,600
Shares.
Summary
Term Sheet
Replacing
the paragraph under the heading “Who is offering to purchase my Shares?” with
the following:
BVF
Acquisition LLC, a Delaware limited liability company (the “Purchaser,” “we” or
“us”), was formed in 2009 for the sole purpose of acquiring Shares of the
Company. The Purchaser’s members are Biotechnology Value Fund, L.P. (“BVF”), a
Delaware limited partnership, Biotechnology Value Fund II, L.P., a Delaware
limited partnership (“BVF2”), BVF Investments, L.L.C., a Delaware limited
liability company (“BVLLC”), and Investment 10, L.L.C., an Illinois limited
liability company (“ILL10”), which entities we refer to as the “BVF Funds.” Mark
N. Lampert is the owner, sole director and an officer of BVF Inc., a Delaware
corporation (“BVF Inc.”), which is the general partner of BVF Partners, L.P., a
Delaware limited partnership (“Partners”). Partners serves as the
general partner of BVF and BVF2, the manager of BVLLC and the investment adviser
of ILL10. Partners and BVF Inc. may each be deemed to beneficially
own 8,819,600 Shares. See Section 9 for more information regarding
us.
Replacing
the paragraph under the heading “Does the Purchaser have the financial resources
to pay for the Shares?” with the following:
We will
have sufficient funds to purchase all of the Shares tendered in the
Offer. The BVF Funds have committed to contribute to the Purchaser
all amounts necessary to fund the Offer. The Offer is not conditioned upon any
financing arrangements. See Section 12.
Inserting
the following above the heading “How will I be notified if the Purchaser extends
the Offer or amends the terms of the Offer?”:
Will
there be a subsequent offering period?
Pursuant
to Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), although the Purchaser does not currently intend to do so, the
Purchaser may, subject to certain conditions, elect to provide a subsequent
offering period of at least three (3) business days in length following the
expiration of the Offer at the Expiration Time and acceptance for payment of
Shares tendered in the Offer (a “Subsequent Offering Period”). A Subsequent
Offering Period would be an additional period of time, following the first
purchase of Shares in the Offer, during which stockholders could tender Shares
not tendered in the Offer.
Section
3 – “Procedures for Tendering Shares”
Inserting
after the second sentence in the third to last paragraph under Section 3 –
“Procedures for Tendering Shares” the following:
Stockholders
may challenge our determinations and only a court of competent jurisdiction can
make a determination that will be final and binding upon the
parties.
Section
9 – “Information about Biotechnology Value Fund, L.P.”
Replacing
the heading and the first paragraph of Section 9 with the
following:
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9.
|
Information
About the Purchaser
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The
Purchaser, BVF Acquisition LLC, is a Delaware limited liability company formed
in 2009 for the sole purpose of acquiring Shares of the Company. The Purchaser’s
members are BVF, BVF2, BVF BVLLC and ILL10, which entities we refer to as the
“BVF Funds.” The BVF Funds, Partners and BVF Inc. specialize in holding
biotechnology stocks for investment purposes. Together, the BVF Funds, Partners
and BVF Inc. are referred to as the “BVF Entities.”
Section
14 – “Conditions of the Offer”
Replacing
Section 14 – “Conditions of the Offer” in its entirety with the
following:
Notwithstanding
any other provisions of the Offer, and in addition to (and not in limitation of)
the Purchaser’s rights to extend and amend the Offer at any time, the Purchaser
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to the Purchaser’s obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for, and may delay
the acceptance for payment of and accordingly the payment for, any tendered
Shares, and may terminate the Offer, if at or prior to the Expiration Date, the
Poison Pill Condition, the Nominees Condition and the Extraordinary Transaction
Condition have not been satisfied, or at the Expiration Date any of the
following events have occurred, or are deemed by the Purchaser to have occurred,
and be continuing, or conditions shall exist:
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(a)
|
any
event or change will have occurred in the business, financial condition or
results of operations of Avigen or any of its subsidiaries that has, or
could reasonably be expected to have, individually or in the aggregate, a
material adverse effect on Avigen or the value of the
Shares;
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(b)
|
there
shall be instituted or pending any action, proceeding, application or
counterclaim by or before any court or governmental, administrative or
regulatory agency or authority, domestic or foreign, or any other person
or tribunal, domestic or foreign, or any restriction shall exist, which
(i) challenges or seeks to challenge, restrain or prohibit the making of
the Offer, the acquisition by us of the Shares or any other matter
relating to the Offer, or seeks to obtain any material damages or
otherwise relating to the transactions contemplated by the Offer, (ii)
seeks to make the purchase of, or payment for, some or all of the Shares
pursuant to the Offer illegal or results in a delay in our ability to
accept for payment or pay for some or all of the Shares, (iii) seeks to
impose limitations on our ability (or any affiliate of ours) to acquire or
hold or to exercise full rights of ownership of the Shares, including, but
not limited to, the right to vote the Shares purchased by us on all
matters properly presented to the stockholders or (iv) would likely
result, in our reasonable judgment, in a materially adverse effect on
Avigen or the value of the Shares;
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(c)
|
any
statute, rule, regulation, judgment, decree, interpretation, injunction or
order (preliminary, permanent or otherwise) shall have been proposed,
sought, enacted, entered, promulgated, enforced or deemed to be applicable
to the Offer or to us or any of our subsidiaries or affiliates by any
court, government or governmental agency or other regulatory or
administrative authority, domestic or foreign, which (i) indicates that
any approval or other action of any such court, agency or authority may be
required in connection with the Offer or the purchase of the Shares
thereunder, (ii) would likely prohibit, restrict or delay consummation of
the Offer, (iii) might impose limitations on our ability (or any affiliate
of ours) to acquire, hold or exercise full rights of ownership of the
Shares, including, but not limited to, the right to vote the Shares
purchased by us on all matters properly presented to the stockholders or
(iv) is likely to result in a materially adverse effect on Avigen or the
value of the Shares;
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(d)
|
there
occurs (i) any general suspension of trading in, or limitation on prices
for, securities on any national securities exchange or in the
over-the-counter market, (ii) any decline in either the Dow Jones
Industrial Average, the Standard and Poor's Index of 500 Industrial
Companies or the NASDAQ-100 Index by an amount in excess of 15%, measured
from the business day immediately preceding the commencement date of the
Offer, or any change in the general political, market, economic or
financial conditions in the United States or abroad that could reasonably
be expected to have a material adverse effect on the business, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole, (iii) the declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iv) any
material adverse change (or development involving a prospective material
adverse change) in U.S. or any other currency exchange rates or a
suspension of, or a limitation on, the markets therefor, (v) any material
adverse change in the market price of the Shares or in the U.S. securities
or financial markets, (vi) the commencement of a war, armed hostilities or
other international or national calamity involving the United States or
any attack on, outbreak or act of terrorism involving the United States,
(vii) any limitation (whether or not mandatory) by any governmental
authority or agency on, or any other event that, in our reasonable
judgment, may adversely affect, the extension of credit by banks or other
financial institutions or (viii) in the case of any of the foregoing
existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof;
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(e)
|
the
Company has (i) split, combined or otherwise changed, or authorized or
proposed the split, combination or other change of, Shares or its
capitalization, (ii) acquired or otherwise caused a reduction in the
number of, or authorized or proposed the acquisition or other reduction in
the number of, outstanding Shares or other securities, (iii) issued or
sold, or authorized or proposed the issuance or sale of, any additional
Shares, shares of any other class or series of capital stock, other voting
securities or any securities convertible into, or options, rights or
warrants, conditional or otherwise, to acquire, any of the foregoing, or
any other securities or rights in respect of, in lieu of, or in
substitution or exchange for any shares of its capital stock, (iv)
permitted the issuance or sale of any shares of any class of capital stock
of the Company, (v) declared, paid or proposed to declare or pay any
dividend or other distribution on any shares of capital stock of the
Company, (vi) altered or proposed to alter any material term of any
outstanding security, issued or sold, or authorized or proposed the
issuance or sale of, any debt securities or otherwise incurred or
authorized or proposed the incurrence of any debt other than in the
ordinary course of business, (vii) authorized, recommended, proposed,
announced its intent to enter into or entered into any agreement or
arrangement with any person or group that, could reasonably be expected to
have material adverse significance with respect to either the value of the
Company or any of its affiliates or the value of the Shares to us or any
of our affiliates, (viii) entered into or amended any employment,
severance or similar agreement, arrangement or plan with any of its
employees other than in the ordinary course of business or entered into or
amended any such agreements, arrangements or plans so as to provide for
increased benefits to employees as a result of or in connection with the
making of the Offer, the acceptance for payment of or payment for Shares
by us, (ix) except as may be required by law, taken any action to
terminate or amend any employee benefit plan (as defined in Section 3(2)
of the Employee Retirement Income Security Act of 1974) of the Company, or
we shall have become aware of any such action which was not previously
announced or (x) amended, or authorized or proposed any amendment to, its
certificate of incorporation or bylaws (or other similar constituent
documents) or we become aware that the Company shall have amended, or
authorized or proposed any amendment to, its certificate of incorporation
or bylaws (or other similar constituent documents) which has not been
previously disclosed; or
|
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(f)
|
the
Company shall have (i) granted to any person proposing a merger or other
business combination with or involving the Company or the purchase of
securities or assets of the Company any type of option, warrant or right
which could reasonably be expected to constitute a "lock-up" device
(including, without limitation, a right to acquire or receive any Shares
or other securities, assets or business of the Company) or (ii) paid or
agreed to pay any cash or other consideration to any party in connection
with any such business combination or purchase; which could reasonably be
expected to, in any such case, and regardless of the circumstances
(including any action or omission by us) giving rise to any such
condition, make it inadvisable to proceed with such acceptance for payment
or payments.
|
All the
foregoing conditions are for our sole benefit and may be asserted by us
regardless of the circumstances giving rise to such condition or may be waived
by us in whole or in part at any time and from time to time prior to the
expiration of the Offer in our reasonable discretion. Our failure at
any time to exercise any of the foregoing rights shall not be deemed a waiver of
any such right, and each such right shall be deemed an ongoing right which may
be asserted at any time and from time to time. Any determination by
us concerning the events described in this Section 14 will be final and binding
upon all parties.
Section
16 – “Fees and Expenses”
Replacing
the first paragraph under Section 16 – “Fees and Expenses” with the
following:
We have
retained MacKenzie Partners, Inc. to act as Information Agent and The Colbent
Corporation as Depositary in connection with the Offer. MacKenzie
Partners, Inc. may contact holders of the Shares by mail, facsimile and personal
interviews and may request brokers, dealers and other nominee stockholders to
forward materials relating to the Offer to beneficial
owners. MacKenzie Partners, Inc., as Information Agent, and The
Colbent Corporation, as Depositary, will receive reasonable and customary
amounts of compensation for their respective services, will be reimbursed by us
for reasonable out-of-pocket expenses and will be indemnified against certain
liabilities in connection with the Offer, including certain liabilities under
the federal securities laws.
Item
12. Exhibits.
|
|
(a)(1)(i)
|
|
Offer
to Purchase, dated January 23, 2009.*
|
|
|
(a)(1)(ii)
|
|
Form
of Letter of Transmittal.*
|
|
|
(a)(1)(iii)
|
|
Form
of Notice of Guaranteed Delivery.*
|
|
|
(a)(1)(iv)
|
|
Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
|
|
|
(a)(1)(v)
|
|
Form
of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
|
|
|
|
(a)(1)(vi)
|
|
Guidelines
for Certification of Taxpayer Identification Number on Substitute Form
W-9.*
|
|
|
(a)(1)(vii)
|
|
Form
of summary advertisement, dated January 23, 2009.*
|
|
|
(a)(5)(i)
|
|
Text
of press release issued by Purchaser, dated January 23,
2009.*
|
|
|
(a)(5)(ii)
|
|
Text
of Press Release issued on January 15, 2009, incorporated by reference
from Schedule TO filed by BVF Acquisition LLC on January 15,
2009.**
|
|
|
(b)
|
|
Not
applicable.
|
|
|
(d)
|
|
Not
applicable.
|
|
|
(g)
|
|
Not
applicable.
|
|
|
(h)
|
|
Not
applicable.
|
_____________________
* Previously
filed on January 23, 2009.
** Previously
filed on January 15, 2009.
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: February
2, 2009
|
|
|
By:
|
Biotechnology
Value Fund, L.P., a member
|
|
|
By:
|
BVF
Partners L.P., its general partner
|
|
|
|
By:
|
BVP
Inc., its general partner
|
|
|
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
Mark
N. Lampert
|
|
|
President
|
|
BIOTECHNOLOGY
VALUE FUND, L.P.
|
|
By:
|
BVF
Partners L.P., its general partner
|
|
|
By:
|
BVF
Inc., its general partner
|
|
|
|
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
|
|
Mark
N. Lampert
|
|
|
|
|
President
|
|
BIOTECHNOLOGY
VALUE FUND II, L.P.
|
|
By:
|
BVF
Partners L.P., its general partner
|
|
|
By:
|
BVF
Inc., its general partner
|
|
|
|
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
|
|
Mark
N. Lampert
|
|
|
|
|
President
|
|
BVF
INVESTMENTS, L.L.C.
|
|
By:
|
BVF
Partners L.P., its manager
|
|
|
By:
|
BVF
Inc., its general partner
|
|
|
|
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
|
|
Mark
N. Lampert
|
|
|
|
|
President
|
|
INVESTMENT
10, L.L.C.
|
|
By:
|
BVF
Partners L.P., its investment manager
|
|
|
|
|
|
|
By:
|
BVF
Inc., its general partner
|
|
|
|
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
|
|
Mark
N. Lampert
|
|
|
|
|
President
|
|
BVF
PARTNERS L.P.
|
|
By:
|
BVF
Inc., its general partner
|
|
|
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
|
Mark
N. Lampert
|
|
|
|
President
|
|
BVF
INC.
|
|
|
|
By:
|
/s/
Mark
N. Lampert
|
|
|
Mark
N. Lampert
|
|
|
President
|
|
/s/
Mark
N. Lampert
|
|
MARK
N. LAMPERT
|
EXHIBIT
INDEX
|
|
(a)(1)(i)
|
|
Offer
to Purchase, dated January 23, 2009.*
|
|
|
(a)(1)(ii)
|
|
Form
of Letter of Transmittal.*
|
|
|
(a)(1)(iii)
|
|
Form
of Notice of Guaranteed Delivery.*
|
|
|
(a)(1)(iv)
|
|
Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
|
|
|
(a)(1)(v)
|
|
Form
of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
|
|
|
|
(a)(1)(vi)
|
|
Guidelines
for Certification of Taxpayer Identification Number on Substitute Form
W-9.*
|
|
|
(a)(1)(vii)
|
|
Form
of summary advertisement, dated January 23, 2009.*
|
|
|
(a)(5)(i)
|
|
Text
of press release issued by Purchaser, dated January 23,
2009.*
|
|
|
(a)(5)(ii)
|
|
Text
of Press Release issued on January 15, 2009, incorporated by reference
from Schedule TO filed by BVF Acquisition LLC on January 15,
2009.**
|
|
|
(b)
|
|
Not
applicable.
|
|
|
(d)
|
|
Not
applicable.
|
|
|
(g)
|
|
Not
applicable.
|
|
|
(h)
|
|
Not
applicable.
|
_____________________
* Previously
filed on January 23, 2009.
** Previously
filed on January 15, 2009.
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