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
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
2
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
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Yuichi Iwaki, M.D., Ph.D.
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iwaki@medicinova.com
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Esther van den Boom
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esther@medicinova.com
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Kazuko Matsuda, M.D., Ph.D., MPH
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matsuda@medicinova.com
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Masatsune Okajima
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okajima@medicinova.com
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Geoffrey O’Brien, JD, MBA
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obrien@medicinova.com
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John O’Neil
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oneil@medicinova.com
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Kiyomi Suzue
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suzue@medicinova.com
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MLV
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Randy Billhardt
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rbillhardt@mlvco.com
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Ryan Loforte
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rloforte@mlvco.com
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Patrice McNicoll
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pmcnicoll@mlvco.com
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Miranda Toledano
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mtoledano@mlvco.com
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With a copy to mlvatmdesk@mlvco.com”
With,
“
The Company
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Yuichi Iwaki, M.D., Ph.D.
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iwaki@medicinova.com
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Ryan Selhorn
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rselhorn@medicinova.com
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Kazuko Matsuda, M.D., Ph.D., MPH
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matsuda@medicinova.com
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3
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Masatsune Okajima
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okajima@medicinova.com
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Geoffrey O’Brien, JD, MBA
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obrien@medicinova.com
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Olamide Esan
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oesan@medicinova.com
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Kiyomi Suzue
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suzue@medicinova.com
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MLV and FBR
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Patrice McNicoll
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pmcnicoll@fbr.com
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Matthew Feinberg
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mfeinberg@fbr.com
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Ryan Loforte
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rloforte@fbr.com
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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.
4
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.
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MEDICINOVA, INC.
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By:
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/s/ Yuichi Iwaki
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Name: Yuichi Iwaki, M.D., Ph.D.
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Title: President and Chief Executive Officer
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MLV & CO. LLC
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By:
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/s/ Patrice McNicoll
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Name: Patrice McNicoll
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Title: Chief Executive Officer
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FBR CAPITAL MARKETS & CO.
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By:
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/s/ Patrice McNicoll
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Name: Patrice McNicoll
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Title: Co-Head of Capital Markets
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