- Filing of certain prospectuses and communications in connection with business combination transactions (425)
May 06 2009 - 4:46PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Current Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 1, 2009
AVALON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-32629
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52-2209310
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(State or other
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(Commission File
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(I.R.S. Employer
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jurisdiction of
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Number)
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Identification No.)
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incorporation or
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organization)
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20358 Seneca Meadows Parkway,
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Germantown, Maryland
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20876
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code: (301) 556-9900
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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INFORMATION TO BE INCLUDED IN THE REPORT
Section 1 Registrants Business and Operations
Item 1.02. Termination of a Material Definitive Agreement.
On May 1, 2009, Avalon Pharmaceuticals, Inc. (Avalon or the Company) and Merck & Co., Inc.
(Merck) agreed to terminate the Exclusive License and Research Collaboration Agreement, dated
March 5, 2007, by and between Avalon and Merck (the Merck Agreement) pursuant to the terms of the
Merck Agreement. The termination of the Merck Agreement was effective on May 1, 2009. As part of
the termination of the Merck Agreement, Merck has agreed to pay Avalon a termination payment of $4
million on or before May 8, 2009, which Avalon expects to receive by that date.
The Merck Agreement was terminated by Avalon and Merck in response to changes in research
priorities by Merck relating to the subject matter of the research program.
Prior to its termination, the Merck Agreement provided that both parties would work exclusively
with one another during the term of a research program related to the discovery and possible
development of selective small molecule inhibitors for a target important in the development of
cancer. In addition, under the Merck Agreement, Merck agreed to pay Avalon up to approximately
$200 million in milestone payments if Avalon were to achieve all of the milestones under the
agreement. The Merck Agreement also provided for the payment to Avalon by Merck of royalties on net
sales of products marketed in the collaboration. The Merck Agreement did not provide for any
minimum guaranteed payments to Avalon by Merck.
As a result of the termination of the Merck Agreement, Avalon will not receive any further payments
from Merck under the Merck Agreement, and the research program between the parties has been
terminated. In addition, neither party has any further obligation to work exclusively with the
other regarding the subject matter of the research program, and Avalon has agreed to destroy
certain materials delivered or provided to it by Merck and certain compounds relating to the
research program in Avalons possession or control. Further, Avalon has agreed that it shall have
no license rights to any Merck patent rights, Merck know-how or to Mercks interest in any joint
information or inventions resulting from the research program following the termination of the
Merck Agreement.
Avalon does not have any other material relationship with Merck.
Section 2 Financial Information
Item 2.04. Triggering Events that Accelerate or Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement.
The disclosure contained in Items 1.02 and 8.01 is incorporated herein by reference.
Section 8 Other Events
Item 8.01. Other Events
Under the terms of the Agreement and Plan of Merger and Reorganization (the Merger Agreement),
dated October 27, 2008, as amended, between Avalon, Clinical Data, Inc. (Clinical Data) and API
Acquisition Sub II, LLC, an indirect wholly-owned subsidiary of Clinical Data (Merger Sub), the
$4 million payment to be received by Avalon from Merck is required to be used to pay down the
outstanding balance of $4 million in short-term loans provided by Clinical Data to Avalon in
connection with the
anticipated
merger of Avalon and Merger Sub contemplated by the Merger Agreement. As of April 30, 2009, a total of approximately $4.1
million in principal and accrued interest remained outstanding under these loans. Avalon intends
to make loan payments totaling $4 million to Clinical Data promptly upon its receipt of the
anticipated $4 million payment from Merck, which would reduce the outstanding balance of the
Clinical Data loans by that amount.
Important Information for Investors and Stockholders
Avalon and Clinical Data have filed a joint definitive proxy statement/prospectus with the
Securities and Exchange Commission (SEC) in connection with the proposed merger. The joint
definitive proxy statement/ prospectus was first mailed to Avalon stockholders on or about April
28, 2009. Investors and stockholders are urged to read the joint definitive proxy
statement/prospectus because it contains important information about the proposed merger.
Investors and stockholders are able to obtain the joint definitive proxy statement/prospectus and
other documents filed with the SEC free of charge at the website maintained by the SEC at
www.sec.gov. In addition, documents filed with the SEC by Avalon are available free of charge on
the portion of the Avalon website titled Investors at www.avalonrx.com. Documents filed with the
SEC by Clinical Data are available free of charge on the portion of the Clinical Data website
titled Investors at www.clda.com.
Clinical Data, Avalon and their directors and executive officers may be deemed to be participants
in the solicitation of proxies from Avalon stockholders. Information regarding Clinical Datas
participants is available in Clinical Datas Annual Report on Form 10-K for the year ended March
31, 2008 and its proxy statement for its 2008 Annual Meeting of Stockholders, which are filed with
the SEC. Information regarding Avalons participants is available in Avalons Annual Report on Form
10-K for the year ended December 31, 2008, which is filed with the SEC. Additional information
regarding interests of such participants is included in the joint definitive proxy
statement/prospectus filed with the SEC. You can obtain free copies of these documents from
Clinical Data and Avalon as indicated above.
Forward-Looking Statements
This report contains forward-looking statements that involve risks and uncertainties. Such
statements are based on certain assumptions and actual results could differ materially from those
currently anticipated as a result of a number of factors, risks and uncertainties. The information
in this report should be read in conjunction with the Risk Factors set forth in Avalons 2008
Annual Report on Form 10-K and updates contained in subsequent filings Avalon makes with the SEC.
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.
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Avalon Pharmaceuticals, Inc.
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Date: May 6, 2009
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By:
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/s/ Kenneth C. Carter
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Kenneth C. Carter
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President and
Chief Executive Officer
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