AMENDMENT NO. 1 TO AT-THE-MARKET ISSUANCE SALES AGREEMENT
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 Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Email: xxxxxxxx@xxxxx.xxx
with a copy (which shall not constitute notice) to:
K&L Gates LLP
0 Xxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Email: xxxxxxx.xxxxx@xxxxxxx.xxx
and if to the Company, shall be delivered to:
MediciNova, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxx, M.D., Ph.D.
Telephone: (000) 000-0000
Email: xxxxx@xxxxxxxxxx.xxx
with a copy to:
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
000 X. Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Email: xxxx.xxxxxx@xxxxxxxxxxxx.xxx”
With,
“FBR Capital Markets & Co.
0000 Xxxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Legal Department
E-mail: xxxxxxxx@xxx.xxx
And
MLV & Co. LLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxx Xxxxxx LLP
One Riverfront Plaza
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Email: XXXxxxx@xxxxxxxxxxx.xxx
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and if to the Company, shall be delivered to:
MediciNova, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxx, M.D., Ph.D.
Telephone: (000) 000-0000
Email: xxxxx@xxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Email: xxxxxxxxxx@xxxxxx.xxx”
5. Schedule 3 is hereby amended to replace
“The Company
| Xxxxxx Xxxxx, M.D., Ph.D. |
xxxxx@xxxxxxxxxx.xxx | |
| Xxxxxx van den Boom |
xxxxxx@xxxxxxxxxx.xxx | |
| Xxxxxx Xxxxxxx, M.D., Ph.D., MPH |
xxxxxxx@xxxxxxxxxx.xxx | |
| Masatsune Okajima |
xxxxxxx@xxxxxxxxxx.xxx | |
| Xxxxxxxx X’Xxxxx, JD, MBA |
xxxxxx@xxxxxxxxxx.xxx | |
| Xxxx X’Xxxx |
xxxxx@xxxxxxxxxx.xxx | |
| Kiyomi Suzue |
xxxxx@xxxxxxxxxx.xxx |
MLV
| Xxxxx Xxxxxxxxx |
xxxxxxxxxx@xxxxx.xxx | |
| Xxxx Xxxxxxx |
xxxxxxxx@xxxxx.xxx | |
| Xxxxxxx XxXxxxxx |
xxxxxxxxx@xxxxx.xxx | |
| Xxxxxxx Xxxxxxxx |
xxxxxxxxx@xxxxx.xxx |
With a copy to xxxxxxxxxx@xxxxx.xxx”
With,
“The Company
| Xxxxxx Xxxxx, M.D., Ph.D. |
xxxxx@xxxxxxxxxx.xxx | |
| Xxxx Xxxxxxx |
xxxxxxxx@xxxxxxxxxx.xxx | |
| Xxxxxx Xxxxxxx, M.D., Ph.D., MPH |
xxxxxxx@xxxxxxxxxx.xxx |
3
| Masatsune Okajima |
xxxxxxx@xxxxxxxxxx.xxx | |
| Xxxxxxxx X’Xxxxx, JD, MBA |
xxxxxx@xxxxxxxxxx.xxx | |
| Xxxxxxx Xxxx |
xxxxx@xxxxxxxxxx.xxx | |
| Kiyomi Suzue |
xxxxx@xxxxxxxxxx.xxx |
MLV and FBR
| Xxxxxxx XxXxxxxx |
xxxxxxxxx@xxx.xxx | |
| Xxxxxxx Xxxxxxxx |
xxxxxxxxx@xxx.xxx | |
| Xxxx Xxxxxxx |
xxxxxxxx@xxx.xxx |
With a copy to xxxxxxxx@xxx.xxx.”
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.
| Very truly yours, | ||
| MEDICINOVA, INC. | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx, M.D., Ph.D. | ||
| Title: President and Chief Executive Officer | ||
| MLV & CO. LLC | ||
| By: | /s/ Xxxxxxx XxXxxxxx | |
| Name: Xxxxxxx XxXxxxxx | ||
| Title: Chief Executive Officer | ||
| FBR CAPITAL MARKETS & CO. | ||
| By: | /s/ Xxxxxxx XxXxxxxx | |
| Name: Xxxxxxx XxXxxxxx | ||
| Title: Co-Head of Capital Markets | ||
