- Amended Statement of Ownership: Solicitation (SC 14D9/A)
March 26 2009 - 12:29PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, DC 20549
_____________________________________________________
SCHEDULE 14D-9
Solicitation/Recommendation Statement Under
Section
14(d)(4) of the Securities Exchange Act of 1934
(Amendment No. 3)
_____________________________________________________
Avigen, Inc.
(Name of Subject Company)
Avigen, Inc.
(Name of Person(s) Filing Statement)
Common Stock, Par Value $0.001 Per
Share
(Title of Class of Securities)
053690103
(CUSIP Number of Class of Securities)
_____________________________________________________
Andrew Sauter
Chief Financial Officer
Avigen, Inc.
1301 Harbor
Bay Parkway
Alameda, California 94502
(510) 748-7150
(Name, Address and Telephone Number of
Person Authorized to Receive Notice and
Communications on Behalf of the
Person(s) Filing Statement)
_____________________________________________________
With copies to:
Brett D. White
Cooley Godward
Kronish LLP
Five Palo Alto
Square
3000 El Camino Real
Palo Alto, CA 94306
(650) 843-5000
o
Check the
box if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
This Amendment No. 3 to Schedule
14D-9 amends and supplements the Schedule 14D-9 previously filed by Avigen,
Inc., a Delaware corporation (Avigen), with the Securities and Exchange
Commission (the SEC) on February 6, 2009, and subsequently amended (as
amended, the Statement), relating to the tender offer 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
(together with the Purchaser, BVF), to purchase all of the outstanding Shares,
upon the terms and conditions set forth in the Offer contained in the Schedule
TO filed by the Purchaser with the SEC on January 23, 2009, as thereafter
amended. Capitalized terms used but not defined herein have the meanings
ascribed to them in the Statement.
In considering the information set
forth in the Statement as amended by this Amendment No. 3 and prior amendments,
stockholders are encouraged to read the Statement in its entirety, including the
cautionary statements set forth in Item 8 of the Statement under the heading
Statement under the Private Securities Litigation Reform Act, regarding
forward-looking statements and risks and uncertainties relating to Avigen and
the Offer.
ITEM 4. THE SOLICITATION OR
RECOMMENDATION
Item 4 is hereby amended and
supplemented as follows:
The section entitled The Boards
Recommendation is amended to read in its entirety as follows:
The Boards
Recommendation
After careful
consideration by the Board, including a thorough review of the revised Offer of
$1.20 per Share with management of Avigen and Avigens financial and legal
advisors, the Board, at a meeting held on March 25, 2009, determined that the
Board would express no opinion to Avigens stockholders and would remain neutral
with respect to the revised Offer.
In reaching the
conclusions and in making the determination to remain neutral with respect to
the revised Offer, the Board took into account a number of factors, described in
more detail below.
The last two paragraphs added by
Amendment No. 2 to Item 4 at the end of the section entitled Background
Summary are replaced in their entirety with the following paragraphs:
Later in the day on
March 20, 2009, RBC contacted BVF with the intent to negotiate an increase in
the Offer price to compensate the remaining stockholders for the value of
Avigens AV411 assets and potential Genzyme milestone payments that Avigen
believed were not reflected in the revised Offer price.
Over the
weekend of March 20-22, 2009 Avigens advisors and BVF discussed a proposal by
Avigen to work together to maximize stockholder value. Among other things,
Avigens advisors proposed that Avigen would share with BVF for its
consideration and input, following execution by BVF of an appropriate
confidentiality agreement, the proposals received by Avigen relating to
potential strategic transactions.
On March 23,
2009, BVF requested that Avigen have its counsel and financial advisors prepare
an agreement between Avigen and BVF that would allow BVF to actively review and
participate in negotiating the strategic proposals under consideration,
including the proposal from MediciNova, to determine if Avigen and BVF could
jointly agree on a proposal to present to stockholders for a vote, and with the
other terms provided below, as well as the terms of a joint press release
announcing these arrangements.
The draft agreement
prepared on behalf of Avigen and submitted to BVF on March 24, 2009 provided
that if the parties agreed on a strategic transaction, BVF would sign a tender
and/or voting agreement in favor of the transaction recommended by the Board and
presented to stockholders for approval. The draft agreement further provided
that if no agreement for a strategic transaction were signed with a third party
by May 8, 2009, Avigen would begin a formal liquidation process, with the goal
of distributing at least $1.00 per Share to stockholders. Avigens obligations
under the draft agreement were explicitly subject to a customary fiduciary out.
The draft agreement
also provided that BVF would not modify its revised Offer of $1.20 per Share and
that Avigen would reserve the right at any time during the process to terminate
the Rights Agreement, support the revised Offer and support the BVF nominees, if
the Board determined that such actions were in the best interests of
stockholders.
On March 24, 2009, a
representative of BVF stated to a representative of Avigen that it would not
enter into the draft agreement.
On March 25, 2009, the
Board met and reviewed Avigens alternatives, in light of BVFs rejection of the
draft agreement and the difficulty of obtaining stockholder approval for any
strategic transaction without BVFs support.
On March 26, 2009,
Avigen issued a press release announcing the Boards recommendation with respect
to the revised Offer and the termination of the employment of certain corporate
officers. A copy of the press release is filed as an exhibit hereto and is
incorporated herein by reference.
The section
entitled Reasons for the Boards Recommendation is amended to read in its
entirety as follows:
Reasons for the Boards
Recommendation
The Board studied the
revised Offer and consulted with Avigens management and financial and legal
advisors. In reaching its decision to express no opinion and remain neutral with
respect to the revised Offer, the Board noted the following:
-
The Board believes the revised Offer
price of $1.20 per Share is approximately equal to the value of Avigens net
cash assets less wind down costs, but does not reflect the value for Avigens
other assets, including its AV411 pain and addiction program and rights to
future payments from Genzyme Corporation.
-
The Board recognizes the preference of
some stockholders for immediate and certain liquidity.
-
The Board believes it can deliver more
than $1.20 per Share from net cash assets less wind down costs, rights to
approximately $6 million ($0.20 per share) of near-term Genzyme payments and
the sale of AV411.
-
BVF has stated that it intends to pursue
a strategic transaction with MediciNova, which the Board does not believe
under the current terms would be in the best interests of
stockholders.
The foregoing discussion of
the information and factors considered by the Board is not intended to be
exhaustive but addresses the material information and factors considered by the
Board in its consideration of the revised 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 its
recommendation. The Boards 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 determinations, the members of the Board were aware of the interests
of certain officers and directors of Avigen as described in Item 3 of this Statement and in
the 2008 Proxy.
Avigen has not made a
determination that the revised Offer is fair to, or in the best interests of,
its stockholders and is not making a recommendation regarding whether Avigens
stockholders should participate in the revised Offer. Avigen urges each
stockholder to make its own decision regarding the revised Offer, including,
among other things, the adequacy of the revised Offer price (based on all of the
available information and in light of the stockholders own investment
objectives), the stockholders view with respect to Avigens prospects and
outlook, the stockholders need for liquidity, the stockholders own tax
position and tax consequences, the matters considered by the Board (as noted
above), and any other factors that the stockholder deems relevant to its
investment decision.
ITEM 9. EXHIBITS
Item 9 is hereby amended and supplemented by adding the following:
Exhibit No.
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Description
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(a)(5)
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Press
Release of Avigen, dated March 26, 2009.
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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: March 26,
2009
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AVIGEN, INC.
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By:
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/s/ Andrew A. Sauter
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Andrew A. Sauter
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Chief Financial
Officer
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