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As filed with the Securities and Exchange Commission on December 9, 1998
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AVIGEN, INC.
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(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 13-3647113
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(State of Incorporation) (I.R.S. Employer Identification No.)
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1201 Harbor Bay Parkway, #1000
Alameda, CA 94502
(510) 748-7150
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(Address of principal executive offices)
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1996 Equity Incentive Plan
1997 Employee Stock Purchase Plan
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(Full title of the plans)
John Monahan, Ph.D
President and Chief Executive Officer
Avigen, Inc.
1201 Harbor Bay Parkway, #1000
Alameda, CA 94502
(510) 748-7150
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(Name, address, including zip code, and telephone number,
ncluding area code, of agent for service)
Copies to:
Alan C. Mendelson, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Shares available for
additional grants under
the 1996 Equity Incentive
Plan(2) 700,000 $3.00 $2,100,000 $583.80
Shares issuable pursuant
to outstanding options
granted under 1,300,000
the 1997 Employee Stock
Purchase Plan(3) 360,000 $3.00 $1,080,000 $300.24
Total 1,060,000 $3,180,000 $884.04
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon the Closing price of Registrant's Common
Stock on December 3, 1998 as reported on the Nasdaq National Market.
(2) Represents 700,000 additional shares of Common Stock reserved for issuance
pursuant to the Company's 1996 Equity Incentive Plan.
(3) Represents, 360,000 Shares of Common Stock reserved for issuance pursuant
to the Company's 1997 Employee Stock Purchase Plan.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Avigen, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(A) The Company's latest Annual Report on Form 10-K filed for the year
ended June 30, 1998 (File No. 000-28272), including all material incorporated by
reference therein;
(B) The Company's latest Quarterly Report on Form 10-Q filed for the
quarter ended September 30, 1998 (File No. 000-28272), including all material
incorporated by reference therein;
(C) The contents of Registration Statement on Form S-8, No. 333-12087
filed with the Securities and Exchange Commission on September 13, 1996.
(D) All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
EXHIBITS
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EXHIBIT
NUMBER
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<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement
24 Power of Attorney is contained on the signature pages.
99.1+ 1996 Equity Incentive Plan
99.2* 1997 Employee Stock Purchase Plan
99.3* 1997 Employee Stock Purchase Plan Offering
</TABLE>
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+ Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(No. 333-3220), as amended through the date hereof, and incorporated herein
by reference.
* Filed as an exhibit to the Registrant's Proxy Statement (No. 000-28272) and
incorporated herein by reference.
1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Alameda, State of California, on December 9, 1998.
AVIGEN, INC.
By /s/ John Monahan
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John Monahan, Ph.D
Title President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John Monahan and Philip J. Whitcome, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ John Monahan President, Chief Executive December 9, 1998
- ------------------------------- Officer And Director
John Monahan, Ph.D
/s/ Thomas Paulson Chief Financial Officer December 9, 1998
- ------------------------------- (Principal Financial Officer)
Thomas Paulson
/s/ Zola Horovitz* Director December 9, 1998
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Zola Horovitz, Ph.D.
/s/ Yuichi Iwaki* Director December 9, 1998
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Yuichi Iwaki, M.D., Ph.D
/s/ John K.A. Prendergast* Director December 9, 1998
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John K.A. Prendergast, Ph.D.
/s/ Philip J. Whitcome* Director December 9, 1998
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Philip J. Whitcome, Ph. D.
*By: /s/ John Monahan December 9, 1998
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John Monahan
Attorney-in-Fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement
24 Power of Attorney is contained on the signature pages.
99.1+ 1996 Equity Incentive Plan
99.2* 1997 Employee Stock Purchase Plan
99.3* 1997 Employee Stock Purchase Plan Offering
</TABLE>
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+ Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(No. 333-3220), as amended through the date hereof, and incorporated herein
by reference.
* Filed as an exhibit to the Registrant's Proxy Statement (No. 000-28272) and
incorporated herein by reference.
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EXHIBIT 5.1
OPINION OF COOLEY GODWARD LLP
December 9, 1998
Avigen, Inc.
1201 Harbor Bay Parkway #1000
Alameda, CA 94502
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Avigen, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of an additional 700,000 shares of the
Company's Common Stock, $.001 par value (the "Incentive Shares") pursuant to its
1996 Equity Incentive Plan (the "Incentive Plan") and of 360,000 shares of the
Company's Common Stock, $.001 par value (the "Employee Shares") reserved for
issuance pursuant to its 1997 Employee Stock Purchase Plan (the "Purchase
Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Incentive Shares and the Employee Shares, when sold and issued in
accordance with the Incentive Plan (in the case of the Incentive Shares), the
Purchase Plan (in the case of the Employee Shares), the Registration Statement
and related Prospectus, will be validly issued, fully paid, and nonassessable
(except as to shares issued pursuant to certain deferred payment arrangements,
which will be fully paid and nonassessable when such deferred payments are made
in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Alan C. Mendelson
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Alan C. Mendelson
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 13, 1998, with respect to the
financial statements of Avigen, Inc. included in the Annual Report on form 10-K
for the year ended June 30, 1998.
/s/ Ernst & Young LLP
