Item 1.01
Entry into a Material Definitive Agreement.
Merger Agreement
On August 20, 2009, MediciNova, Inc.
(“
MediciNova
”), Absolute Merger, Inc., a wholly-owned subsidiary of MediciNova
(“
Merger Sub
”) and Avigen, Inc. (“
Avigen
”), entered into an Agreement
and Plan of Merger pursuant to which, upon the terms and subject to the
conditions set forth therein, Merger Sub will merge with and into Avigen (the
“
Merger
”),
with Avigen continuing as the surviving corporation and as a wholly-owned
subsidiary of MediciNova.
Under the terms of the Merger Agreement,
each outstanding share of Avigen common stock (and the associated preferred
share purchase right), par value $0.001 per share, will be converted into an
amount currently estimated at approximately $1.24 per share in either cash or
secured convertible notes issued by MediciNova, at the election of each
individual Avigen stockholder. Stockholders that do not make a valid election
will receive 50% of the consideration in cash and 50% of the consideration in
secured convertible notes issued by MediciNova. Approximately $1.19 of such consideration
will be paid at the effective time of the Merger, and approximately $0.05 will
be paid on June 30, 2010 pursuant to the terms of an escrow agreement to be
entered into at the effective time of the Merger. Both payments are subject to
certain adjustments as specified in the Merger Agreement. The secured
convertible notes will be convertible on the final business day of each month
into shares of MediciNova common stock at an initial conversion price of $6.80
per share (based on the volume-weighted average price of MediciNova’s common
stock as quoted on The Nasdaq Stock Market and the Osaka Securities Exchange
over the 20-day trading period ending on the business day prior to August 20,
2009). In addition, Avigen’s stockholders will be entitled to one Contingent
Payment Right (as defined in the Merger Agreement) for each share of Avigen
common stock held immediately prior to the effective time of the Merger, which
provide for additional potential cash payments based on achievement of a certain
milestone under Avigen’s assignment agreement with Genzyme Corporation or other
specified events. Outstanding options to purchase Avigen common stock will be
cancelled at the effective time of the Merger.
The Merger Agreement contains customary
representations and warranties and pre-closing covenants, and the completion of
the Merger is subject to customary closing conditions, including adoption of the
Merger Agreement by Avigen’s stockholders, adoption of the Merger Agreement and
approval of the issuance of the convertible notes by MediciNova’s
stockholders,
execution of certain ancillary agreements and the absence of a material
adverse effect on Avigen. In the event that Avigen’s board of directors changes
its recommendation regarding the Merger following receipt of a superior offer,
as defined in the Merger Agreement, and the Merger is not consummated, Avigen
will be required to reimburse MediciNova for 50% of its reasonable out-of-pocket
expenses, up to a maximum $500,000, upon a termination of the Merger Agreement
prior to the effective time of the Merger. The parties intend to complete the
Merger as soon as practicable and currently anticipate that the closing will
occur in the fourth quarter of 2009.
The foregoing summary of certain terms of
the Merger Agreement does not purport to be complete, and is qualified in its
entirety by reference to the Merger Agreement, a copy of which is filed as
Exhibit 2.1 hereto and is incorporated herein by reference. The summary of the
terms of the Merger Agreement, as well as the text of the Merger Agreement
included in this Form 8-K, are intended to provide you with information
regarding the material terms of the Merger Agreement and are not intended to
modify or supplement any factual disclosures about Avigen contained in their
respective reports or statements filed with the SEC or other public information.
In particular, the foregoing summary and the Merger Agreement is not intended to
be, and should not be relied upon as, disclosures regarding any facts and
circumstances relating to Avigen. The representations and warranties set forth
in the Merger Agreement were negotiated with the principal purposes of
establishing the circumstances in which a party may have the right not to
consummate the transactions contemplated by the Merger Agreement (based on the
closing conditions in the Merger Agreement that relate to the accuracy of such
representations and warranties), rather than establishing matters as facts. The
representations and warranties may also be subject to a contractual standard of
materiality different from those generally applicable to disclosures to the
stockholders of Avigen.
The press release announcing the Merger,
dated August 21, 2009, is filed as Exhibit 99.1 hereto and is incorporated
herein by reference.
Amendment to Management Transition
Plan
On August 20, 2009, Avigen amended its
Management Transition Plan (the “
Plan
”) to provide that the
exercisability of any stock option granted to participants in the Plan may not
be extended beyond the effective date of a corporate transaction in which the
option will not be assumed or substituted (the “
Plan Amendment
”).
A copy of the Plan Amendment is attached
as Exhibit 10.1 to this report and is incorporated herein by reference. The
foregoing description of the Plan Amendment does not purport to be complete and
is qualified in its entirety by reference to the Plan Amendment.
Item 3.03. Material Modification to
Rights of Security Holders.
On August 20, 2009, Avigen entered into
Amendment No. 1 to Rights Agreement, by and between American Stock Transfer
& Trust Co. LLC (the “
Rights
Agent
”) and Avigen (the “
Amendment
”). The Amendment
amends the terms of that certain Rights Agreement, dated as of November 21,
2008, by and between Avigen and the Rights Agent (the “
Rights Agreement
”). The
Amendment provides that the Merger Agreement, the Merger or the consummation
of any other transaction contemplated by the Merger Agreement will not trigger
the distribution and/or exercise of the Rights (as defined in the Rights
Agreement). The Amendment provides that, among other things, (i) no Distribution
Date (as defined in the Rights Agreement) or Shares Acquisition Date (as defined
in the Rights Agreement) will occur as a result of, among other things, the
approval, execution and delivery of the Merger Agreement or the consummation of
the transactions contemplated thereby; (ii) no Person (as defined in the Rights
Agreement) will be or become an Acquiring Person (as defined in the Rights
Agreement) as a result of, among other things, the approval, execution and
delivery of the Merger Agreement or the consummation of the transactions
contemplated thereby; and (iii) the Rights will expire immediately prior to the
Merger Effective Time (as defined in the Merger Agreement).
A copy of the Amendment is attached as
Exhibit 4.1 to this report and is incorporated herein by reference. The
foregoing description of the Amendment does not purport to be complete and is
qualified in its entirety by reference to the Amendment.
Additional Information and Where to
Find It
MediciNova intends to file a registration
statement on Form S-4 containing a joint proxy statement/prospectus and related
documents in connection with the Merger. Investors are urged to read these
documents when they become available because they will contain important
information concerning the transaction. Investors may obtain free copies of
these documents and other documents filed with the Securities and Exchange
Commission (the “SEC”) at the SEC’s website at www.sec.gov. In addition,
MediciNova and Avigen security holders may obtain free copies of documents filed
by either company with the SEC by accessing MediciNova’s website at
www.medicinova.com under the heading “Investor Relations” and then under the
heading “SEC Filings” or by accessing Avigen’s website at www.avigen.com under
the tab “Investors” and then under the heading “Corporate Filings”.
MediciNova, Avigen and their respective
directors and executive officers may be deemed to be participants in the
solicitation of proxies from the stockholders of MediciNova and the stockholders
of Avigen in connection with the transaction. Information regarding the special
interests of these directors and executive officers in the transaction will be
included in the joint proxy statement/prospectus described above. Additional
information regarding the directors and executive officers of MediciNova is also
included in MediciNova’s proxy statement for its 2009 Annual Meeting of
Stockholders, which was filed with the SEC on April 29, 2009. Additional
information regarding the directors and executive officers of Avigen is also
included in Avigen’s Annual Report on Form 10-K for the year ended December 31,
2008, which was filed with the SEC on March 16, 2009 and amended on April 30,
2009. These documents are available free of charge at the SEC’s website at
www.sec.gov and the websites of MediciNova and Avigen as described above.
Forward Looking
Statements
This Current Report on Form 8-K includes
“forward-looking statements” within the meaning of the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. These forward-looking
statements include statements relating to the timing of the Merger and
satisfaction of conditions to the Merger, whether any anticipated benefits of
the Merger will be realized, future benefits to stockholders and future economic
and industry conditions and are not historical facts and typically are
identified by use of terms such as “may,” “will,” “should,” “could,” “intend,”
“anticipate,” “estimate,” “potential” and similar words, although some
forward-looking statements are expressed differently. You should be aware that
the forward-looking statements included herein represent the current judgment
and expectations of the respective companies, but the actual results, events and
performance of MediciNova and Avigen, respectively, following the Merger are
subject to risks and uncertainties and could differ materially from those
expressed or implied by forward-looking statements. Neither MediciNova nor
Avigen intend to update any of these forward-looking statements or publicly
announce the results of any revisions to these forward-looking statements, other
than as is required under the federal securities laws.
The potential risks and uncertainties
include: potential difficulties that may be encountered in integrating the
merged businesses; uncertainties as to the timing of the Merger; approval of the
transaction by the stockholders of the companies and the satisfaction of other
closing conditions to the transaction; competitive responses to the Merger; an
economic downturn; and dependence on third parties. These and other risks and
uncertainties, which are described in more detail in MediciNova’s and Avigen’s
most recent Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q filed
with the SEC, could cause actual results and developments to be materially
different from those expressed or implied by any of these forward-looking
statements.
Item 9.01 Financial Statements and
Exhibits.
|
|
Exhibit
|
|
|
|
|
Number
|
|
Description
|
|
|
2.1
|
|
Agreement and Plan of Merger, dated August 20, 2008, by
and among MediciNova, Inc., Absolute Merger, Inc. and Avigen,
Inc.
|
|
|
4.1
|
|
Amendment to Rights Agreement, dated August 20, 2008, by
and between Avigen, Inc. and American Stock Transfer & Trust Co.
LLC
|
|
|
10.1
|
|
Amendment to Management Transition Plan, effective as of
August 20, 2009
|
|
|
99.1
|
|
Joint
Press Release of Avigen and MediciNova, dated August 21,
2009
|
SIGNATURES
Pursuant to
the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned, hereunto duly
authorized.
|
|
A
VIGEN,
I
NC
.
|
|
|
|
|
|
|
|
Dated: August
24, 2009
|
By:
|
/s/
A
NDREW
A.
S
AUTER
|
|
|
|
Andrew A.
Sauter
|
|
|
|
Chief Executive
Officer, President and
|
|
|
|
Chief Financial
Officer
|
INDEX
TO
EXHIBITS
|
|
Exhibit
|
|
|
|
|
Number
|
|
Description
|
|
|
2.1
|
|
Agreement and Plan of Merger, dated August 20, 2008, by and
among MediciNova, Inc., Absolute Merger, Inc. and Avigen,
Inc.
|
|
|
4.1
|
|
Amendment to Rights Agreement, dated August 20, 2008, by and
between Avigen, Inc. and American Stock Transfer & Trust Co.
LLC
|
|
|
10.1
|
|
Amendment to Management Transition Plan, effective as of
August 20, 2009
|
|
|
99.1
|
|
Joint Press Release of Avigen and MediciNova, dated August
21, 2009
|
Avigen (MM) (NASDAQ:AVGN)
Historical Stock Chart
From Oct 2024 to Nov 2024
Avigen (MM) (NASDAQ:AVGN)
Historical Stock Chart
From Nov 2023 to Nov 2024
