Avanir Phamaceuticals

0000936392-08-000254.txt : 20080410 0000936392-08-000254.hdr.sgml : 20080410 20080410152841 ACCESSION NUMBER: 0000936392-08-000254 CONFORMED SUBMISSION TYPE: 8-A12B/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20080410 DATE AS OF CHANGE: 20080410 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AVANIR PHARMACEUTICALS CENTRAL INDEX KEY: 0000858803 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 330314804 STATE OF INCORPORATION: CA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-A12B/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-15803 FILM NUMBER: 08749932 BUSINESS ADDRESS: STREET 1: 101 ENTERPRISE STREET 2: SUITE 300 CITY: ALISO VIEJO STATE: CA ZIP: 92656 BUSINESS PHONE: 949-389-6700 MAIL ADDRESS: STREET 1: 101 ENTERPRISE STREET 2: SUITE 300 CITY: ALISO VIEJO STATE: CA ZIP: 92656 FORMER COMPANY: FORMER CONFORMED NAME: LIDAK PHARMACEUTICALS DATE OF NAME CHANGE: 19920703 8-A12B/A 1 a39676e8va12bza.htm FORM 8-A12B/A Avanir Phamaceuticals

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-A/A

Amendment No. 2

FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934

Avanir Pharmaceuticals

(Exact name of registrant as specified in its charter)


California		33-0314804

(State of incorporation or organization)		(I.R.S. Employer Identification No.)

101 Enterprise, Suite 300, Aliso Viejo, California		92656

(Address or principal executive offices)		(Zip Code)

Securities to be registered pursuant to Section 12(b) of the Act:


Title of each class to be so registered		Name of each exchange on which each class is to be registered

Common Stock, no par value		The NASDAQ Stock Market LLC
and related Preferred Share Purchase Rights
pursuant to Rights Agreement

If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General instruction A.(c), check the following box. þ

If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. o

Securities Act registration statement file number to which this form relates: 001-15803

EXPLANATORY NOTE

This Amendment No. 2 to Form 8-A is being filed by the registrant for the purpose of amending and supplementing the description of the registrant’s securities contained in the original Form 8-A filed by the registrant with the Securities and Exchange Commission on April 5, 2000, as amended by Amendment No. 1 to Form 8-A filed by the registrant with the Securities and Exchange Commission on April 13, 2000.

TABLE OF CONTENTS


Item 1. Description of Registrant’s Securities to be Registered
Item 2. Exhibits
SIGNATURE
Exhibit Index
EXHIBIT 4.2

Item 1. Description of Registrant’s Securities to be Registered.

In connection with the completion by Avanir Pharmaceuticals (the “Company”) of the offering and sale of 34,972,678 shares of Class A common stock and warrants to purchase up to 12,240,437 shares of Class A common stock on April 4, 2008 (the “Offering”), the Company and American Stock Transfer & Trust Company, as Rights Agent (“AST”), entered into an amendment (the “Amendment”) to the Rights Agreement dated as of March 5, 1999 between the Company and AST (the “Rights Agreement”).

Prior to the effectiveness of the Amendment, the Rights Agreement provided that certain persons who become the beneficial owner of 15% or more of the then outstanding shares of common stock of the Company shall be deemed an “Acquiring Person.” Clarus Ventures, through certain of its related entities (collectively, “Clarus”), purchased in the Offering a number of shares of Class A common stock that caused Clarus to beneficially own more than 15% of the Company’s outstanding Class A common stock immediately following the Offering. Accordingly, the Company and AST entered into the Amendment for the purpose of amending the Rights Agreement, effective immediately prior to the completion of the Offering, to (i) provide for an exception to the definition of “Acquiring Person” for a “Grandfathered Person,” so long as such person does not acquire greater than a specified “Grandfathered Percentage” (initially, 20.40% and subject to adjustment as set forth in the Amendment), of the Company’s Class A common stock subject to certain limitations, (ii) provide that Clarus is a “Grandfathered Person” subject to certain limitations, and (iii) provide for other modifications to the Rights Agreement consistent with the foregoing.

The Rights Agreement and the Amendment are filed as Exhibits 4.1 and 4.2 to this Amendment No. 2 to Form 8-A and incorporated herein by reference. The above description of the material terms of the Amendment as they relate to the Rights Agreement is qualified in its entirety by reference to such exhibits.

Item 2. Exhibits.


Exhibit No.		Description
4.1(1)		Rights Agreement, dated as of March 5, 1999, by and between Avanir Pharmaceuticals and American Stock Transfer & Trust Company, as Rights Agent, which includes: as Exhibit A thereto, the Form of Certificate of Determination of Series C Junior Participating Preferred Stock; as Exhibit B thereto, the Form of Right Certificate; and, as Exhibit C thereto, the Summary of Rights to Purchase Preferred Shares.

4.2		Amendment No. 1 to Rights Agreement, dated April 4, 2008, by and between Avanir Pharmaceuticals and American Stock Transfer & Trust Company, as Rights Agent.


(1)		This exhibit is filed as an exhibit to the registrant’s Current Report on Form 8-K filed March 11, 1999 and is incorporated herein by reference.

SIGNATURE

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed its behalf by the undersigned thereunto duly authorized.

Dated: April 10, 2008


	AVANIR PHARMACEUTICALS
	By:	/s/ Christine G. Ocampo
		Christine G. Ocampo
		Vice President, Finance

Exhibit Index


Exhibit No.		Description
4.1(1)		Rights Agreement, dated as of March 5, 1999, by and between Avanir Pharmaceuticals and American Stock Transfer & Trust Company, as Rights Agent, which includes: as Exhibit A thereto, the Form of Certificate of Determination of Series C Junior Participating Preferred Stock; as Exhibit B thereto, the Form of Right Certificate; and, as Exhibit C thereto, the Summary of Rights to Purchase Preferred Shares.

4.2		Amendment No. 1 to Rights Agreement, dated April 4, 2008, by and between Avanir Pharmaceuticals and American Stock Transfer & Trust Company, as Rights Agent.


(1)		This exhibit is filed as an exhibit to the registrant’s Current Report on Form 8-K filed March 11, 1999 and is incorporated herein by reference.

EX-4.2 2 a39676exv4w2.htm EXHIBIT 4.2 exv4w2

Exhibit 4.2

AVANIR PHARMACEUTICALS
AMENDMENT NO. 1 TO RIGHTS AGREEMENT

This Amendment No. 1 (the “Amendment”) to the Rights Agreement, dated as of March 5, 1999 (the “Rights Agreement”) is entered into as of April 4, 2008, by and between Avanir Pharmaceuticals, a California corporation (the “Company”), and American Stock Transfer & Trust Company, a New York corporation (the “Rights Agent”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Rights Agreement.

RECITALS

WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company may, from time to time, supplement or amend any provision of the Rights Agreement without the approval of any holders of Rights in order to make any changes or provisions in regard to matters or questions arising under the Rights Agreement that the Company may deem necessary or desirable;

WHEREAS, the Company intends to offer shares of its Class A Common Stock (the “Common Stock”) through Piper Jaffray & Co., as placement agent, certain investors pursuant to subscription agreements to be entered into with such investors on or about March 26, 2008 (the “Offering”);

WHEREAS, pursuant to Section 1.1 of the Rights Agreement, any Person who, together with all of its Affiliates and Associates, shall be a Beneficial Owner of 15% or more of the Common Shares of the Company then outstanding, shall be deemed an Acquiring Person;

WHEREAS, the Rights Agreement provides that in the event a Person becomes an Acquiring Person, holders of Rights shall be entitled to certain rights, as set forth in Section 11.1.2 of the Rights Agreement;

WHEREAS, Clarus Ventures (“Clarus”) desires to purchase in the Offering, through one or more of its Affiliates and/or Associates, a number of shares of Common Stock that would cause Clarus to become an Acquiring Person upon the completion of the Offering; and

WHEREAS, the Company desires to amend the Rights Agreement as set forth below in connection with the purchase by Clarus of Common Stock in the Offering.

AGREEMENT

NOW, THEREFORE, in consideration of the promises and the mutual agreements herein set forth, the parties hereby agree as follows:

1. Section 1.1 of the Rights Agreement is hereby amended and restated in its entirety to read as follows:

“1.1. “Acquiring Person” means any Person (as such term is hereinafter defined) who or which, together with all Affiliates and Associates (as such terms are hereinafter defined) of that Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the Common Shares of the Company then outstanding but shall not include (i) an Exempt Person (as such term is hereinafter defined), (ii) if, as of March 15, 1999, any Person is the Beneficial Owner of 15% or more of the Common Shares outstanding (an “Existing Holder”), such Existing Holder shall not be or become an “Acquiring Person” unless and until such time as such Existing Holder shall become

the Beneficial Owner of one or more additional Common Shares of the Company (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Shares in Common Shares or pursuant to a split or subdivision of the outstanding Common Shares), unless, upon becoming the Beneficial Owner of such additional Common Shares, such Existing Holder is not then the Beneficial Owner of 15% or more of the Common Shares then outstanding or (iii) any Grandfathered Person, unless such Grandfathered Person at any time after the Grandfathered Time becomes the Beneficial Owner of a percentage of the then outstanding Common Shares equal to or exceeding the Grandfathered Percentage then applicable to such Grandfathered Person. Notwithstanding the foregoing, no Person shall become an “Acquiring Person” as the result of an acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 15% or more of the Common Shares of the Company then outstanding; provided, however, that if a Person shall become the Beneficial Owner of 15% (or, in the case of a Grandfathered Person, the Grandfathered Percentage then applicable to such Grandfathered Person) or more of the Common Shares of the Company then outstanding solely by reason of share purchases by the Company and shall, after such share purchases by the Company, become the Beneficial Owner of one or more additional Common Shares of the Company) other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Shares in Common Shares or pursuant to a split or subdivision of the outstanding Common Shares), then such Person shall be deemed to be an “Acquiring Person” unless upon becoming the Beneficial Owner of such additional shares of Common Stock such Person does not beneficially own 15% (or, in the case of a Grandfathered Person, the Grandfathered Percentage then applicable to such Grandfathered Person) or more of the shares of Common Stock then outstanding. Notwithstanding the foregoing, if the Board of Directors of the Company determines in good faith that a Person who would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing provisions of this Section 1.1, has become such inadvertently (including, without limitation, because (A) such Person was unaware that it beneficially owned a percentage of Common Stock that would otherwise cause such Person to be an “Acquiring Person” or (B) such Person was aware of the extent of its Beneficial Ownership of Common Stock but had no actual knowledge of the consequences of such Beneficial Ownership under this Agreement), and without any intention of changing or influencing control of the Company, and such Person divests as promptly as practicable a sufficient number of Common Shares so that such Person would no longer be an Acquiring Person, as defined pursuant to the foregoing provisions of this Section 1.1, then such Person shall no be deemed to be or have become an “Acquiring Person” at any time for any purposes of this Agreement. For all purposes of this Agreement, any calculation of the number of Common Shares outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding Common Shares of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as in effect on the date of this Agreement.”

2. Section 1 of the Rights Agreement is amended by adding at the end of said section the following definitions:

“1.14 “Grandfathered Percentage” shall initially be 20.40%; provided that in the event any Grandfathered Person shall sell, transfer, distribute or otherwise dispose of any outstanding Common Shares after the Grandfathered Time, the Grandfathered Percentage

shall, immediately after such sale, transfer, distribution or disposition, be adjusted downward, with respect to such Grandfathered Person, to equal the lesser of (i) the Grandfathered Percentage as in effect immediately prior to such sale, transfer, distribution or disposition or (ii) the percentage of outstanding Common Shares that such Grandfathered Person Beneficially Owns immediately following such sale, transfer or disposition plus an additional 0.50%.

1.42 “Grandfathered Person” shall mean Clarus Ventures and its Affiliates and Associates including, without limitation, Clarus Lifesciences I, L.P., Clarus Ventures I, G.P., L.P., and Clarus Ventures I, LLC. Notwithstanding anything to the contrary provided in this Agreement, any Grandfathered Person who after the Grandfathered Time becomes the Beneficial Owner of less than 15% of the Common Shares then outstanding shall thereupon cease to be a Grandfathered Person and shall thereafter be subject to all of the provisions of this Agreement in the same manner as any Person who is not and was not a Grandfathered Person.

1.43 “Grandfathered Time” shall mean the closing of the Offering on April 4, 2008.”

3. The first sentence of Section 3.1 of the Rights Agreement is hereby amended and restated in its entirety to read as follows:

“Until the earlier of (i) the tenth day after the Shares Acquisition Date or (ii) the tenth Business Day after the date of the commencement of, or first public announcement of the intent of any Person (other than an Exempt Person) to commence, a tender or exchange offer the consummation of which would result in any Person (other than an Exempt Person) becoming the Beneficial Owner of Common Shares aggregating 15% (or, in the case of a Grandfathered Person, the Grandfathered Percentage then applicable to such Grandfathered Person) or more of the then outstanding Common Shares of the Company (the earlier of (i) and (ii) being herein referred to as the “Distribution Date”), (x) the Rights (unless earlier expired, redeemed or terminated) will be evidenced (subject to the provisions of Section 3.2) by the certificates for Common Shares registered in the names of the holders thereof (which certificates for Common Shares shall also be deemed to be Right Certificates) and not by separate certificates, and (y) the Rights (and the right to receive certificates therefor) will be transferable only in connection with the transfer of the underlying Common Shares.”

4. By execution of this Agreement, the Company shall not be deemed to have compromised or waived any of its rights under the Rights Agreement.

5. Except as expressly modified herein, all terms and conditions of the Rights Agreement shall continue in full force and effect.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same amendment, and each of which shall be deemed to be an original.

AVANIR PHARMACEUTICALS


By:		/s/ Keith A. Katkin
Name:		Keith A. Katkin
Title:		President and Chief Executive Officer

AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent

By:		/s/ Herbert J. Lemmer
Name:		Herbert J. Lemmer
Title:		Vice President

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