On November 21, 2008, Avigen entered
into the Rights Agreement described in more detail in Item 8 below, in order to
discourage a hostile takeover by a third party at a price that would prevent
stockholders from obtaining fair value for their Shares.
During the next two weeks Avigen
continued discussions with strategic advisors and began negotiating engagement
letters with Pacific Growth Equities (“Pacific Growth”) and RBC Capital Markets
(“RBC”).
On December 4, 2008, Dr. Chahine,
along with one of the strategic advisors, spoke with Mr. Lampert. Dr. Chahine
stated that he had spoken with counsel, strategic advisors, and several Board
members regarding BVF’s demand for a put option. Dr. Chahine conveyed that
numerous legal and business concerns had been raised and cautioned that a put
option might have unintended consequences that would disadvantage all
stockholders, including BVF. Nevertheless, Dr. Chahine stated that he remained
open-minded and invited Mr. Lampert to provide Avigen’s strategic advisors at
Pacific Growth support and rationale for BVF’s proposal for presentation and
consideration by the Board at a meeting to be held on December 9.
On December 8, 2008, Dr. Horovitz
received a letter from MediciNova, Inc. (“MediciNova”), proposing an acquisition
of Avigen by MediciNova and setting forth very general terms for the proposed
acquisition. Dr. Horovitz promptly contacted MediciNova’s Chairman and expressed
that Avigen was in the process of retaining strategic advisors to consider
proposals such as this early in the new year. This timing was necessary to
permit Avigen’s management to focus on the ongoing restructuring efforts and to
complete the negotiation of the sale of AV513 to Baxter Healthcare, and to
formally retain strategic advisors.
On December 9, 2008, the Board met.
While not formally engaged, strategic advisors from Pacific Growth and RBC gave
presentations outlining their expertise and the review process. The Board
discussed the MediciNova proposal and Dr. Horovitz stated that he had contacted
MediciNova’s Chairman and had proposed a timeline for discussion. BVF did not
provide any supporting material to strategic advisors on the mechanism or rationale
for a put option.
On December 11, 2008, BVF published
an open letter to the Board. In the letter BVF accused management and the Board
of general mismanagement and reiterated BVF’s demand that the Board “guaranty”
an outcome for stockholders.
On December 18, 2008, Avigen
announced the sale of its AV513 product candidate for $7,000,000 ($0.23 per
Share) to Baxter Healthcare.
On December 22, 2008, Drs. Horovitz
and Chahine issued a letter to stockholders underscoring the Board’s and
management’s commitment to act in the best interests of Avigen’s stockholders
and emphasizing the swift and decisive actions already taken to preserve cash
since the AV650 announcement. The letter to stockholders also reminded
stockholders of the significant value of Avigen’s remaining assets, and of the
Board’s and management’s commitment to pursue possible strategic transactions
that would be in the best interests of all of Avigen’s stockholders. The letter
concluded with a pledge to stockholders that Avigen would continue to use the
same fiscally prudent approach that had allowed it to preserve cash.
On that same day, Dr. Horovitz
received a second (and modified) proposal from MediciNova. In the letter,
MediciNova proposed terms substantially similar to those contained in
MediciNova’s December 8 letter, modified to reflect the $7,000,000 received from
the sale of AV513.
The Board subsequently reviewed the
proposal from MediciNova and concluded that the MediciNova proposal, as revised,
should be carefully considered and that due diligence should commence early in
the new year following the engagement of strategic advisors. Dr. Horovitz again
contacted MediciNova’s Chairman and communicated the Board’s
conclusion.
5
On December
29, 2008, BVF filed an amended Schedule 13D advocating that Avigen should
“consummate the Proposed Merger expeditiously.” It was the Board’s view that
BVF’s publicly-stated support for the MediciNova proposal weakened Avigen’s
negotiating position, making it more difficult for Avigen to negotiate a better
transaction with MediciNova on behalf of all of Avigen’s stockholders.
On January 9, 2009, BVF delivered a notice to Avigen, demanding that
Avigen call a special meeting of stockholders to, among other things, remove the
current members of Avigen’s Board, without cause, and for the proposed election
of BVF’s slate of director nominees (the “BVF Nominees”).
On January 14, 2009, Avigen announced that it had engaged RBC to oversee
the review of merger and acquisition opportunities for Avigen and had engaged
Pacific Growth primarily to assist in monetizing Avigen’s AV411 assets.
On the very next day, BVF publicly announced its intention to make a
tender offer to purchase all of the outstanding Shares of Avigen. In its
offering documents filed subsequently, BVF incorrectly stated that Avigen had
rejected the MediciNova proposal and expressed BVF’s view that, if elected to
the Board of Avigen, the BVF Nominees would pursue the MediciNova proposal.
On
January 19, 2009, Avigen sent a confidentiality agreement to MediciNova’s
Chairman of the Board, in order to initiate the due diligence process and
negotiations regarding a possible transaction between Avigen and MediciNova. The
Board proposed in the confidentiality agreement that both Avigen and MediciNova
share information with each other in order to permit the Board and, if a
transaction is agreed upon, Avigen stockholders, to understand key aspects of
MediciNova’s business, including anticipated expenses, development plans, and
commercialization strategy in order to properly evaluate the proposal and
determine whether it is appropriate to recommend or, if recommended, approve.
In the days following, Avigen’s strategic advisors at RBC met with
representatives of BVF to engage in further discussions.
On January 20, 2009, RBC presented various financial analyses and an overview and update of the process of
evaluating Avigen’s strategic alternatives to the Board. On that date, Avigen received multiple proposals from companies to
engage in strategic transactions that, on their face, appeared competitive with
the MediciNova proposal. Avigen contacted these companies and initiated
discussions to assess these potential strategic transactions.
Avigen’s strategic advisors at RBC sent an email to MediciNova’s Chairman
on January 22, 2009, stating that efforts to reach MediciNova’s CEO and CFO were
unsuccessful and urging him to review and return the confidentiality agreement
so that due diligence could commence as soon as possible. The Chairman responded
that he would remind the MediciNova management. RBC subsequently received a
communication from MediciNova’s CFO promising that they would review the draft
and return it with any comments.
In spite of Avigen’s continuing efforts to assess potential strategic
transactions and the Board’s and management’s efforts to engage Mr. Lampert in
productive discussions, on January 23, 2009, the Purchaser filed a Schedule TO
with the SEC, formally initiating the Offer.
At Board meetings held on January 26 and 29, 2009, at each of which the Board assessed the Offer, RBC
presented various financial analyses and an overview and update regarding the process of evaluating Avigen’s strategic alternatives.
One week after MediciNova’s prior communication, on January 29, 2009,
strategic advisors at RBC once again contacted MediciNova’s Chairman reiterating
that efforts to reach MediciNova’s CEO and CFO were unsuccessful and urging him
to review and return the confidentiality agreement so that diligence could
commence as soon as possible. The Chairman responded that he would remind the
management again.
6
On January 30, 2009, RBC received a revised version of the
confidentiality agreement from MediciNova with suggested changes. The draft was
reviewed by Avigen’s counsel and on February 3, 2009, promptly returned to MediciNova. RBC
proposed that MediciNova’s counsel call Avigen’s counsel to expedite the process
and resolve any issues so that the due diligence process could be initiated as
soon as possible.
As of the date of this statement, MediciNova’s counsel had not yet contacted Avigen’s counsel.
Reasons for the Board’s
Recommendation
The Board studied the proposed Offer and consulted with Avigen’s
management and financial and legal advisors. The Board concluded
that:
-
The Offer price is inadequate and substantially
undervalues Avigen.
The Board believes the
Offer price is inadequate and substantially undervalues our business,
including our cash position, AV411 development program, intellectual property,
license with Genzyme, experienced management team and our public listing. More
specifically:
-
Cash
.
We have more than $1.00 per
Share of cash, net of liabilities. Even if we were to liquidate Avigen now
or later in the year, we believe we could distribute more than $1.00 per
Share to you.
-
AV411
. AV411 is a clinical stage drug candidate for large markets such as
pain, as well as a growing unmet medical need in this country for which
there is currently no good treatment: addiction to both prescription and
illicit drugs. AV411 is in human clinical trials funded almost entirely by
the National Institute on Drug Abuse (NIDA). We recently sold a much earlier
stage program for $7,000,000, or $0.23 per Share. Based on our early
conversations with potential buyers and partners, we believe we can realize
substantially more value than that from AV411.
-
Genzyme
. We believe we may receive additional money from Genzyme related to
programs and a family of more than 60 patents it bought from us several
years ago.
-
Management
. We have a very experienced management team who have successfully
developed and marketed products. The team members also possesses unique
know-how and skill sets related to the AV411 pain and addiction program, as
well as the family of related compounds, that is critical to maximizing the
value of the program.
-
Public listing
. Many private companies place a high value on our
listing, especially now, when the IPO window remains largely closed and
capital is in short supply. Many other life science companies believe a
public listing would allow them greater access to capital and improve their
opportunity and ability to make acquisitions.
-
We believe we can structure a transaction that
will allow you to receive value for many or all of these
assets.
-
The Board believes that the current global
economic crisis provides significant strategic opportunities to companies
such as Avigen with a strong cash position and a public
listing.
-
In addition to pursuing a potential strategic
relationship with MediciNova (see Background Summary above for a history of
interactions), we have already received other written proposals which appear
competitive to MediciNova’s proposal. These proposals place significant
value on many or all of Avigen’s assets. We believe we will receive
additional proposals in the weeks ahead.
-
We urge you not to tender Shares in the Offer
before we and our advisors have had the chance to
fully explore the proposals we
have received and expect to receive shortly.
7
-
Avigen’s stock price has recently traded as
high as $1.06 per Share, and closed on February 5, 2009 at a price of $1.00
per Share.
-
The BVF Offer transfers to BVF any future
increases in the price of your Avigen stock.
Under the terms of BVF’s Offer, if you tender your Shares, and the
Offer is consummated, you would not receive more than $1.00 per Share. The
Board does not believe that BVF would make the Offer unless they believed the value of each Share was greater
than the Offer price. In fact, BVF states in its Offer to Purchase that
“[t]he Purchaser is making this Offer because BVF believes that the purchase
of Shares at the purchase price pursuant to the Offer represents an attractive
investment for the Purchaser.” If you tender your Shares, and the Offer is
consummated, BVF will benefit from any gains in Avigen’s stock price, not
you.
-
The BVF Offer is not a firm commitment to you
and is unlikely to close by the Expiration Time.
The Offer has conditions that make it unlikely to close on February 23,
2009 as stated in the Offer, and carries significant uncertainty that the
Offer will be consummated at all. For example, the Purchaser will not buy the
Shares, even if you tender them, unless the BVF Nominees are elected to the
Board. The Schedule TO lists several conditions that must be met prior to
12:00 midnight, New York time, on February 23, 2009 (the “Expiration Time”),
including the following key conditions:
-
BVF Board Majority Condition.
The BVF Nominees must be elected to the
Board at a special meeting of stockholders called for that purpose, or
otherwise appointed, and constitute a majority of directors on the Board. As
discussed above, BVF has requested that Avigen call a special meeting of
stockholders for, among other things, the purpose of removing the current
members of Avigen’s Board, without cause, and for the proposed election of
the BVF Nominees. While no meeting date has yet been set, under Avigen’s
bylaws the special meeting does not have to be held until May 9, 2009. As a
result, this condition will not be met prior to the Expiration Time.
Accordingly, unless the Offer were extended (and re-extended) to a date
after the date of the special meeting, this condition would not be
satisfied.
-
Termination of Stockholder Rights
Condition.
The stockholder rights issued
and outstanding under the Rights Agreement discussed in more detail in Item
8 below must have been redeemed by the Board, or BVF must be satisfied in
its reasonable discretion that the rights are inapplicable to the Offer. As
discussed in Item 8 below, Avigen has a
Rights Agreement in place in order to permit the Board to have
adequate time to consider all opportunities available to Avigen in the
interests of the stockholders. The Board has not agreed (and has no current
intention) to redeem the rights under the Rights Agreement in connection
with the Offer, whether prior to the Expiration Time or otherwise. As a
result, it is unlikely that this condition will be met prior to the
Expiration Time.
-
No Transaction Condition.
Avigen must not have authorized, recommended, proposed,
announced its intent to enter into or entered into an agreement with respect
to or effected any merger, consolidation, liquidation, dissolution, business
combination, acquisition of assets, alternative strategy, disposition of
assets or relinquishment of any material contract or other right of Avigen
or any comparable event or capital depleting transaction not in the ordinary
course of business. As discussed above, Avigen has engaged advisors to
assist Avigen in identifying potential strategic transactions that may be in
the interests of Avigen and its stockholders. As a result, if, prior to the
Expiration Time, Avigen proposes or announces its intent to enter into such
a transaction, this condition to the Offer will not be
met.
8
For the reasons described above, it is
unlikely that all of these conditions will be satisfied prior to the Expiration
Time, and it is possible that none of these conditions may be satisfied by such
time. As a result, unless the Purchaser agrees to waive the conditions
(including many additional conditions discussed further below) that remain
unsatisfied at the Expiration Time, the Purchaser will need to extend (and
possibly re-extend) the Offer or the Offer will terminate.
-
Additional conditions to the
Offer.
In addition to the key conditions to
the Offer discussed above, the Schedule TO also states that it is a condition
to the Offer, and accordingly that the Purchaser is not required to consummate
the Offer, in the event of any of the following:
-
any event or change 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;
-
any lawsuit, administrative action or proceeding
or any statute, rule or regulation, which (i) challenges or seeks to restrain
the Offer, to impose limitations on BVF’s ability to acquire or hold or to
exercise full rights of ownership of the Shares, or (ii) would likely result
in a materially adverse effect on Avigen or the value of the
Shares;
-
certain adverse changes in market conditions,
including (i) 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 (ii) any general suspension
of trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market;
-
any material adverse change in the market price of
the Shares or in the U.S. securities or financial markets;
-
any material adverse change in U.S. or any other
currency exchange rates or a suspension of, or a limitation on, the currency
exchange markets;
-
the declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, or any event
that, in BVF’s reasonable judgment, may adversely affect, the extension of
credit by banks or other financial institutions;
-
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;
-
any other 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 Avigen and its
subsidiaries, taken as a whole;
-
any stock split or proposed stock split of
Avigen’s Shares;
-
Avigen acquires any Shares;
-
Avigen sells, or proposes the authorization 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 to acquire, any of the foregoing;
9
-
Avigen declares or proposes to declare or pay any
dividend or other distribution;
-
Avigen alters or proposes to alter any material
term of any outstanding security or incurs or proposes to incur any debt other
than in the ordinary course of business;
-
Avigen enters into or announces its intent to
enter 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 Avigen or any of its affiliates or the value of the Shares
to us or any of our affiliates;
-
Avigen enters into or amends any employment,
severance or similar agreement, arrangement or plan with any of its employees
to provide for increased benefits to employees as a result of or in connection
with the Offer;
-
Avigen takes any action to terminate or amend any
employee benefit plan, except as required by law;
-
Avigen amends, or proposes any amendment to, its
certificate of incorporation or bylaws; or
-
Avigen grants to any person proposing a merger
with or acquisition of Avigen or its assets any type of option, warrant or
right to acquire or receive any Shares or other securities, assets or business
of Avigen, or Avigen pays or agrees to pay any consideration to any party in
connection with any such merger or acquisition, which could reasonably be
expected to make it inadvisable to proceed with the Offer.
-
Furthermore the consideration offered by BVF in
the Offer would in general be taxable to you
.
The foregoing
discussion of the information and factors considered by the Board of Avigen is
not intended to be exhaustive but addresses the material information and factors
considered by the Board in its consideration of the Offer. In view of the
variety of factors and the amount of information considered, the Board did not
find it practicable to provide specific assessments of, quantify or otherwise
assign any relative weights to, the specific factors considered in determining
their recommendations. The Board’s determination was made after consideration of
the factors taken as a whole. Individual members of the Board may have given
differing weights to different factors. In addition, in arriving at their
respective recommendations, the members of the Board were aware of the interests
of certain officers and directors of Avigen as described in Item 3 above and in
the 2008 Proxy.
Intent to Tender
To the knowledge of Avigen, none of Avigen’s directors or executive
officers intends to tender any of their Shares for purchase pursuant to the
Offer.
ITEM 5. PERSONS/ASSETS, RETAINED,
EMPLOYED, COMPENSATED OR USED
Avigen has engaged RBC to render financial advisory services and has
agreed to pay RBC customary compensation for such services, including for
services in connection with the Offer. Avigen is also required to reimburse
RBC’s out-of-pocket expenses incurred in performing the services in connection
with its engagement. Avigen has also agreed to indemnify RBC against certain
liabilities arising out of or in connection with the engagement. RBC and its
affiliates in the past have provided, and in the future may provide, financial
advisory and commercial and investment banking services to Avigen for which
services they have received, and would expect to receive, compensation. In the
ordinary course of business, RBC and its affiliates may actively trade or hold
securities of Avigen for its own account or for the accounts of customers and,
accordingly, may at any time hold a long or short position in such
securities.
10
Avigen has
retained Innisfree to assist it in connection with Avigen’s communications with
its stockholders with respect to the Offer. Avigen has agreed to pay Innisfree
customary compensation for such services and to reimburse certain expenses of
Innisfree in connection with the engagement. In addition, Avigen has agreed to
indemnify Innisfree against certain liabilities arising out of or in connection
with the engagement.
Avigen has retained The Abernathy MacGregor Group (“Abernathy”) as its
public relations advisor in connection with the Offer. Avigen has agreed to pay
customary compensation for such services and to reimburse Abernathy for its
out-of-pocket expenses arising out of or in connection with its engagement.
Avigen has also agreed to indemnify Abernathy against certain liabilities
arising out of or in connection with the engagement.
Certain officers, directors and employees of Avigen may render services
in connection with the Offer, but they will not receive any additional
compensation for such services.
Except as set forth above, neither Avigen nor any person acting on its
behalf has employed, retained or agreed to compensate any person to make
solicitations or recommendations to stockholders of Avigen concerning the Offer.
ITEM 6. INTEREST IN SECURITIES OF
THE SUBJECT COMPANY
No transactions in the Common Stock have been effected during the past 60
days by Avigen, or, to Avigen’s knowledge, any of Avigen’s directors, executive
officers, affiliates (including BVF), or subsidiaries.
ITEM 7. PURPOSES OF THE TRANSACTION
AND PLANS OR PROPOSALS
Except as set forth in this Statement, Avigen is not undertaking or
engaged in any negotiation in response to the Offer which relates to or would
result in: (i) a tender offer or other acquisition of Avigen’s securities by
Avigen, any subsidiary of Avigen or any other person, (ii) an extraordinary
transaction, such as a merger, reorganization or liquidation, involving Avigen
or any subsidiary of Avigen, (iii) any purchase, sale or transfer of a material
amount of assets by Avigen or any subsidiary of Avigen, or (iv) any material
change in the present dividend rate or policy, or indebtedness or capitalization
of Avigen.
Except as otherwise set forth in this Statement, there are no
transactions, resolutions of Avigen’s Board, agreements in principle or signed
contracts entered into in response to the Offer that relate to one or more of
the events referred to in the preceding paragraph.
ITEM 8. ADDITIONAL INFORMATION
Anti-Takeover Provisions of Avigen’s
Charter Documents
Certain provisions of Avigen’s Amended and Restated Certificate of
Incorporation, as amended, and Bylaws (the “Charter Documents”) may have the
effect of delaying or preventing changes in control or management, including the
division of the Board into three classes, each serving staggered three-year
terms. As a result, only one class of directors will be elected at each annual
meeting of stockholders, with the other classes continuing for the remainder of
their respective terms.
11
The Charter Documents also provide that removal of any director or the
entire Board without cause requires the affirmative vote of the holders of at
least 2/3 of the voting power of the then-outstanding Shares. Further, the
Charter Documents provide that the Board may designate the rights, preferences
and privileges of shares of undesignated preferred stock which, if designated by
the Board and issued by Avigen, may have rights, preferences and privileges,
including economic rights, senior to the Common Stock, and as a result the
issuance of such preferred stock may have the effect of delaying or preventing
changes in control or management.
Rights Agreement
In view of the fact that Avigen’s stock price became significantly
depressed as a result of the AV650 announcement and the ongoing global economic
crisis, among other things, on November 21, 2008, Avigen entered into a rights
agreement with American Stock Transfer & Trust Co. LLC (the “Rights
Agreement”) and the Board declared a dividend of one preferred share purchase
right thereunder (each, a “Right”) for each outstanding share of Avigen’s Common
Stock to the stockholders of record on December 1, 2008. The Board took these
actions in order to give Avigen adequate time, if it were to be presented with
an attempt by a third party to acquire Avigen at a price determined by the Board
not to be in the best interests of Avigen’s stockholders, to explore strategic
alternatives to maximize stockholder value. Each Right entitles the registered
holder to purchase from Avigen one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $0.001 per share (the “Preferred
Shares”), at a price of $8.00 per one one-hundredth of a Preferred Share,
subject to adjustment. Each one one-hundredth of a Preferred Share has
designations and powers, preferences and rights, and the qualifications,
limitations and restrictions, designed to make it the economic equivalent of a
Share. The description and terms of the Rights are set forth in the Rights
Agreement.
Copies of the Rights Agreement and the Certificate of Designation for the
Preferred Shares have been filed with the SEC as exhibits to a Registration
Statement on Form 8-K filed with the SEC on November 24, 2008, and are
incorporated herein by reference.
The Purchaser’s unsolicited Offer may trigger certain events under the
Rights Agreement. Specifically, were the Purchaser to acquire any Shares
pursuant to the Offer without the Rights being redeemed prior to the date of
such purchase, BVF would become an “Acquiring Person” pursuant to the terms of
the Rights Agreement, and the stockholders of Avigen (other than BVF and its
affiliates and associates) would (subject to the exchange and other provisions
of the Rights Agreement) become entitled to acquire, for an exercise price of
$8.00 per Right, additional Shares valued at $16.00 (twice the exercise price
for each Right). At its meeting on January 26, 2009, the Board took action, as
permitted by the Rights Agreement, to postpone the Distribution Date (as defined
in the Rights Agreement), on which the Rights “detach” from the underlying
Shares, and which otherwise would have occurred 10 business days after January
15, 2009 (the date of the first public announcement of BVF’s intention to
commence the Offer), until such date as may be determined by the Board to be the
Distribution Date, which determination will be made by a duly adopted subsequent
resolution of the Board.
Statement under the Private
Securities Litigation Reform Act
The statements in this Statement relating to Avigen’s strategy,
objectives and plans to identify, acquire and develop opportunities that
represent a positive return to Avigen’s stockholders, its beliefs regarding the
availability of strategic opportunities and potential value of monetizing AV411,
and future actions that Avigen’s Board may take are forward-looking statements.
These statements are subject to risks and uncertainties that could cause actual
results to differ materially from those projected in these forward-looking
statements, including the risk that Avigen will not be able to acquire or
develop such opportunities due to monetary, intellectual property, technological
or other constraints. In addition, there are many other risks and uncertainties
inherent in the development of drug products and pursuing strategic
opportunities. Other risks and uncertainties relating to Avigen are detailed in
reports filed by Avigen with the Securities and Exchange Commission, including
Avigen’s quarterly report on Form 10-Q for the period ended September 30, 2008,
under the caption “Risks Related to Our Business” in Item 2 of Part I of that
report, which was filed with the SEC on November 10, 2008.
12
Further risks and uncertainties
resulting from the Purchaser’s unsolicited Offer include: the risk that key
employees may pursue other employment opportunities due to concerns as to their
employment security with Avigen; the risk that the Offer will make it more
difficult for Avigen to execute its strategic plan and pursue other strategic
opportunities; the risk of greater volatility in the price of our Common Stock;
and the risk that stockholder litigation in connection with the Purchaser’s
unsolicited Offer, or otherwise, may result in significant costs of defense,
indemnification and liability. All forward-looking statements are qualified by
these cautionary statements and are made only as of the date they are made.
ITEM 9. EXHIBITS
|
Exhibit No.
|
|
Description
|
|
(a)(1)
|
|
Letter to Stockholders of Avigen, dated February 6,
2009.*
|
|
|
|
(a)(2)
|
|
Press Release of Avigen, dated February 6,
2009.
|
|
|
|
(e)(1)
|
|
Excerpts from Avigen’s Proxy Statement, filed with the
SEC on April 24, 2008, relating to Avigen’s 2008 Annual Meeting of
Stockholders.
|
|
|
|
(e)(2)
|
|
Management Transition Plan, as amended October 30,
2008.
|
|
|
|
(e)(3)
|
|
2006 Equity Incentive Plan (incorporated by reference
from such document filed as Appendix A to Avigen’s Proxy Statement filed
with the SEC on April 20, 2006).
|
|
|
|
(e)(4)
|
|
Certificate of Designation of Series A Junior
Participating Preferred Stock (incorporated by reference to Exhibit 3.4 to
Avigen’s Current Report on Form 8-K filed with the SEC on November 24,
2008).
|
|
|
|
(e)(5)
|
|
Rights Agreement, dated as of November 21, 2008, by and
between Avigen and American Stock Transfer & Trust Co. LLC, as rights
agent (incorporated by reference to Exhibit 4.2 to Avigen’s Current Report
on Form 8-K filed with the SEC on November 24,
2008).
|
* Filed herewith and included in copies
mailed to stockholders of Avigen.
13
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.
|
Date: February 6,
2009
|
|
AVIGEN, INC.
|
|
|
|
|
|
|
By:
|
/s/ Andrew A. Sauter
|
|
|
|
|
Andrew A. Sauter
|
|
|
|
|
Chief Financial Officer
|
|
14
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