- Amended Statement of Ownership: Solicitation (SC 14D9/A)
February 12 2009 - 11:59AM
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. 1)
__________________________________________________
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)
__________________________________________________
M. Christina
Thomson
Vice President,
General Counsel and Secretary
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. 1 to Schedule 14D-9 amends and supplements the Schedule 14D-9 (the
Statement) previously filed by Avigen, Inc., a Delaware corporation
(Avigen), with the Securities and Exchange Commission (the SEC) on February
6, 2009, 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 at a price of $1.00 per Share,
net to the seller in cash, less any applicable withholding taxes and without
interest, 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.
ITEM 4. THE SOLICITATION OR
RECOMMENDATION
Item 4 is hereby amended and supplemented as follows:
The statement under the caption Background Summary that reads As of
the date of this statement, MediciNovas counsel had not yet contacted Avigens
counsel is revised to read as follows:
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On February 10, 2009, MediciNova
and Avigen agreed that they would proceed with high level due diligence
without entering into a confidentiality agreement, and if discussions
adequately progressed they would negotiate a confidentiality agreement at
a later date.
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The following two paragraphs are added to Item 4 at the end of the
section entitled Background Summary:
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On February 11, 2009, Avigen, Inc.
issued a press release announcing its financial results for the year ended
December 31, 2008. A copy of the press release is filed as an exhibit
hereto and is incorporated herein by reference.
On February 11, 2009, senior
management of Avigen, Inc. hosted a conference call relating to its fiscal
year ended December 31, 2008. The transcript of the call is filed as an
exhibit hereto and is incorporated herein by reference.
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The statement under the caption Reasons for the Boards Recommendation
that reads We have more than $1.00 per Share of cash, net of liabilities is
revised to read as follows:
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We have more than $1.00 per Share
of cash, available-for-sale securities and restricted cash, net of
liabilities. Our cash, available-for-sale securities and restricted cash
as of December 31, 2008, were $56.8 million, and our liabilities were
$10.8 million, as reflected in our press release of February 11, 2009,
furnished as an exhibit hereto. Shares outstanding on that date were 29.8
million shares, which approximates the number of shares outstanding used
to calculate basic and diluted earnings per share as of December 31, 2008,
resulting in cash, available-for-sale securities and restricted cash, net
of liabilities, per share of in excess of $1.00.
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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)(3)
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Press
Release, dated February 11, 2009, announcing Avigen Inc.s financial
results for
the year ended December 31,
2008.
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(a)(4)
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Transcript of prepared remarks
and questions and responses addressed during Avigen, Inc.s conference
call held on February 11, 2009 relating to the fiscal year ended December
31, 2008.
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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: February
11, 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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