UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 8-K

 

 

Current Report

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 16, 2016

 

 

MEDICINOVA, INC.

(Exact name of registrant as specified in its charter)

 

 

 

DELAWARE		001-33185		33-0927979
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

4275 EXECUTIVE SQUARE, SUITE 650, LA JOLLA, CA		92037
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (858) 373-1500

Not applicable.

(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 (see General Instruction A.2. below):

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Item 1.01

Entry into a Material Definitive Agreement

MediciNova, Inc. (the “Company”) previously entered into an At-the-Market Issuance Sales Agreement with MLV & Co. LLC (“MLV”) on May 22, 2015 (the “Original Sales Agreement”) and filed a prospectus supplement registering $30,000,000 of the Company’s common stock for sale pursuant to the Original Sales Agreement. On September 16, 2016, the Company entered into an amendment No. 1 to the Original Sales Agreement (the “Amendment”, together with the Original Sales Agreement, the “Sales Agreement), to also include FBR Capital Markets & Co. (“FBR”) as a sales agent. The Original Sales Agreement provided that sales under the Original Sales Agreement would be effected under an outstanding Form S-3 registration statement (File No. 333-185022), which expired by its terms on December 3, 2015. The Amendment also amends the Original Sales Agreement to provide that sales under the Sales Agreement will be effected under an outstanding Form S-3 shelf registration statement (File No. 333-208274) (the “Current Shelf Registration Statement”) that does not expire until August 29, 2019.

The Company filed a prospectus supplement on September 16, 2016 to move the remaining $29,967,000 of the shares of common stock that can be sold pursuant to the Sales Agreement to the Current Shelf Registration Statement. The shares of common stock included in the prospectus supplement filed on September 16, 2016 represent the remaining shares previously registered for sale under the Sales Agreement, and the Company is not registering any additional shares for sale pursuant to the Sales Agreement.

A description of the terms and conditions of the Original Sales Agreement is set forth in the Company’s Current Report on Form 8-K filed with the Commission on May 22, 2015 and is incorporated herein by reference. The foregoing description of the Amendment is not complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

A copy of the opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP relating to the legality of the shares of common stock that may be issued pursuant to the Sales Agreement and the prospectus supplement is attached as Exhibit 5.1 to this Current Report on Form 8-K.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation, or sale of the securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

 

Item 9.01

Financial Statements and Exhibits

(d) Exhibits

 

Number		Description
5.1		Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
10.1		Amendment No. 1 to At-the-Market Issuance Sales Agreement, dated September 16, 2016, by and among MediciNova, Inc., MLV & Co. LLC and FBR Capital Markets & Co.
23.1		Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (included in Exhibit 5.1)

 

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SIGNATURE

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.

 

Date: September 16, 2016

 

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Exhibit 5.1

September 16, 2016

MediciNova, Inc.

4275 Executive Square, Suite 650

La Jolla, California 92037

Ladies and Gentlemen:

You have requested our opinion with respect to certain matters in connection with the sale and issuance by MediciNova, Inc., a Delaware corporation (the “Company”), of up to an aggregate of $29,967,000 of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), pursuant to an effective shelf registration statement on Form S-3 (File No. 333-208274) (the “Registration Statement”) and the related prospectus (the “Base Prospectus”) filed with the Securities and Exchange Commission (the “Commission”) on December 1, 2015 under the Securities Act of 1933, as amended (the “Act”), as supplemented by the prospectus supplement dated September 16, 2016, filed with the Commission pursuant to Rule 424(b) promulgated under the Act (together with the Base Prospectus, the “Prospectus”).

In connection with this opinion, we have examined and relied upon the Registration Statement and the Prospectus, the Company’s Certificate of Incorporation and Bylaws, as currently in effect, and the originals or copies certified to our satisfaction of such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.

In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the genuineness and authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness of such documents. We express no opinion as to matters governed by any laws other than the substantive laws of the State of Delaware and the federal laws of the United States of America, as in effect on the date hereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold pursuant to that certain At-the-Market Issuance Sales Agreement, dated as of May 22, 2015, by and between the Company and MLV & Co. LLC, as amended by that certain Amendment No. 1 to At-the-Market Issuance Sales Agreement, dated September 16, 2016, by and among the Company, MLV & Co. LLC and FBR Capital Markets & Co., in accordance with the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable.

We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to a Current Report of the Company on Form 8-K. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP

GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP

 

Exhibit 10.1

AMENDMENT NO. 1 TO AT-THE-MARKET ISSUANCE SALES AGREEMENT

September 16, 2016

Ladies and Gentlemen:

MediciNova, Inc. (the “Company”), and MLV & Co. LLC (“MLV”) , are parties to that certain At-the-Market Issuance Sales Agreement dated May 22, 2015 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, together with FBR Capital Markets & Co. (“FBR” and together with MLV, the “Agent”), intending to be legally bound, hereby amend the Original Agreement as follows (to be effective as set forth in paragraph 6 below):

1. Section 1 of the Original Agreement is hereby amended to replace

“The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-185022), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”).

With,

“The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-208274), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”).

2. All references to “MLV & Co. LLC” and “MLV” set forth in the Original Agreement are revised to read “MLV & Co. LLC and FBR Capital Markets & Co.” and “the Agent,” respectively.

3. All references to “May 22, 2015” set forth in Schedule I and Exhibit 7(l) of the Original Agreement are revised to read “May 22, 2015 (as amended by Amendment No. 1 to At-the-Market Issuance Sales Agreement, dated September 16, 2016)”.

4. Section 14 of the Original Agreement is hereby amended to replace

“MLV & Co. LLC

1301 Avenue of the Americas,

43rd Floor

New York, New York 10019

Attention: Legal Department

Telephone: (212) 542-5880

Email: mlvlegal@mlvco.com

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with a copy (which shall not constitute notice) to:

K&L Gates LLP

1 Park Plaza, Twelfth Floor

Irvine, CA 92614

Attention: Michael Hedge

Telephone: (949) 623-3519

Email: michael.hedge@klgates.com

and if to the Company, shall be delivered to:

MediciNova, Inc.

4275 Executive Square, Suite 650

La Jolla, CA 92037

Attention: Yuichi Iwaki, M.D., Ph.D.

Telephone: (858) 246-8671

Email: iwaki@medicinova.com

with a copy to:

Pillsbury Winthrop Shaw Pittman LLP

501 W. Broadway, Suite 1100

San Diego, CA 92101-3575

Attention: David R. Snyder

Telephone: (619) 544-3369

Email: dave.snyder@pillsburylaw.com”

With,

“FBR Capital Markets & Co.

1300 North 17th Street, Suite 1400

Arlington, VA 22209

Attention: Legal Department

E-mail: atmadmin@fbr.com

And

MLV & Co. LLC

299 Park Avenue, 7th Floor

New York, NY 10171

Attention: Legal Department

Facsimile: (212) 542-5880

Email: mlvlegal@mlvco.com

with a copy (which shall not constitute notice) to:

Duane Morris LLP

One Riverfront Plaza

1037 Raymond Boulevard, Suite 1800

Newark, NJ 07102

Attention: James T. Seery

Email: JTSeery@duanemorris.com

 

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and if to the Company, shall be delivered to:

MediciNova, Inc.

4275 Executive Square, Suite 650

La Jolla, CA 92037

Attention: Yuichi Iwaki, M.D., Ph.D.

Telephone: (858) 246-8671

Email: iwaki@medicinova.com

with a copy (which shall not constitute notice) to:

Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP

3570 Carmel Mountain Road, Suite 200

San Diego, CA 92130

Attention: Kirt W. Shuldberg

Telephone: (858) 436-8060

Email: kshuldberg@gunder.com”

5. Schedule 3 is hereby amended to replace

“The Company

 

Yuichi Iwaki, M.D., Ph.D.		iwaki@medicinova.com
Esther van den Boom		esther@medicinova.com
Kazuko Matsuda, M.D., Ph.D., MPH		matsuda@medicinova.com
Masatsune Okajima		okajima@medicinova.com
Geoffrey O’Brien, JD, MBA		obrien@medicinova.com
John O’Neil		oneil@medicinova.com
Kiyomi Suzue		suzue@medicinova.com

MLV

 

Randy Billhardt		rbillhardt@mlvco.com
Ryan Loforte		rloforte@mlvco.com
Patrice McNicoll		pmcnicoll@mlvco.com
Miranda Toledano		mtoledano@mlvco.com

With a copy to mlvatmdesk@mlvco.com”

With,

“The Company

 

Yuichi Iwaki, M.D., Ph.D.		iwaki@medicinova.com
Ryan Selhorn		rselhorn@medicinova.com
Kazuko Matsuda, M.D., Ph.D., MPH		matsuda@medicinova.com

 

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Masatsune Okajima		okajima@medicinova.com
Geoffrey O’Brien, JD, MBA		obrien@medicinova.com
Olamide Esan		oesan@medicinova.com
Kiyomi Suzue		suzue@medicinova.com

MLV and FBR

 

Patrice McNicoll		pmcnicoll@fbr.com
Matthew Feinberg		mfeinberg@fbr.com
Ryan Loforte		rloforte@fbr.com

With a copy to atmadmin@fbr.com.”

6. Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.

7. Entire Agreement; Amendment; Severability. This Amendment No. 1 to Sales Agreement together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment No. 1; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement, and the reference to “time of execution of this Agreement” set forth in Section 13(a) shall continue to refer to the time of execution of the Original Agreement.

8. Applicable Law; Consent to Jurisdiction. This amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

9. Waiver of Jury Trial. The Company, MLV and FBR each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby.

10. Counterparts. This amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission.

 

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If the foregoing correctly sets forth the understanding among the Company, MLV and FBR, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Agreement between the Company, MLV and FBR.