<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AVIRON
------
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001 PER SHARE
---------------------------------------
(Title of Class of Securities)
053762-10-0
-----------
(CUSIP Number)
DR. ANDERS HOVE
GRAFENAUWEG 4, 6301 ZUG CH/SWITZERLAND
011-41-41-724-5959
------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Daniel L. Goelzer, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
MARCH 27, 1997
--------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
<PAGE> 2
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
Page 2 of 15
<PAGE> 3
<TABLE>
<CAPTION>
CUSIP No. 053762-10-0
- ---------------------
<S> <C>
- -------------------------------------------------------------------------------------------------------------------------
(1) Name of Reporting Person
Biotech Target S.A.
S.S. or I.R.S. Identification No. of Above Person
Not applicable: Foreign Corporation
- -------------------------------------------------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) [ ]
of a Group* (b) [x]
- -------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------------------------------------------------
(5) Check box if disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Panama
- -------------------------------------------------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 0 by Biotech Target S.A.
by Each Reporting ------------------------------------------------------------------------------
Person With (8) Shared Voting Power
2,588,286 by Biotech Target
S.A.(See Item 5)
------------------------------------------------------------------------------
(9) Sole Dispositive Power
0 by Biotech Target S.A.
------------------------------------------------------------------------------
(10) Shared Dispositive Power
2,588,286 by Biotech Target
S.A.(See Item 5)
- -------------------------------------------------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,588,286 shares of common stock, par value of $.001 per share
(See Item 5)
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3 of 15
<PAGE> 4
<TABLE>
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
- -------------------------------------------------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
16.12%
- -------------------------------------------------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
</TABLE>
Page 4 of 15
<PAGE> 5
<TABLE>
<CAPTION>
CUSIP No. 053762-10-0
- ---------------------
- -------------------------------------------------------------------------------------------------------------------------
<S> <C>
(1) Name of Reporting Person
BB Biotech AG
S.S. or I.R.S. Identification No. of Above Person
Not applicable: Foreign Corporation
- -------------------------------------------------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) [ ]
of a Group* (b) [x]
- -------------------------------------------------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------------------------------------------------
(4) Source of Funds
WC
- -------------------------------------------------------------------------------------------------------------------------
(5) Check Box is Disclosure of Legal Proceedings is required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Switzerland
- -------------------------------------------------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 0 by BB Biotech AG
by Each Reporting ------------------------------------------------------------------------------
Person With (8) Shared Voting Power
2,588,286 by BB Biotech AG
(See Item 5)
------------------------------------------------------------------------------
(9) Sole Dispositive Power
0 by BB Biotech AG
------------------------------------------------------------------------------
(10) Shared Dispositive Power
2,588,286 by BB Biotech AG
(See Item 5)
- -------------------------------------------------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,588,286 shares of common stock, par value of $.001 per share
(See Item 5)
- -------------------------------------------------------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11)
</TABLE>
Page 5 of 15
<PAGE> 6
<TABLE>
<S> <C> <C>
Excludes Certain Shares* [ ]
- -------------------------------------------------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
16.12%
- -------------------------------------------------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC, CO
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 6 of 15
<PAGE> 7
EXPLANATORY NOTE
On February 21, 1997, BB Biotech AG ("BB Biotech"), a Swiss
corporation, and Biotech Target S.A., a Panamanian corporation ("Biotech
Target") filed a Schedule 13G with the Securities and Exchange Commission to
disclose Biotech Target's beneficial ownership of 5.24 percent of the
outstanding shares of common stock, $.001 par value per share (the "Common
Stock") of Aviron, a Delaware corporation ("Aviron"). This disclosure
statement on Schedule 13D relates to the acquisition of an additional 1,714,286
shares of Aviron's Common Stock pursuant to that certain Common Stock Purchase
Agreement dated March 27, 1997 by and between Aviron and Biotech Target (the
"Agreement"). This disclosure statement also relates to the acquisition,
through a series of open market purchases, of an additional 293,000 shares of
Aviron's Common Stock and the sale of 90,000 shares of Aviron's Common Stock.
ITEM 1. SECURITY AND ISSUER
This statement relates to the Common Stock of Aviron. Aviron's
principal executive offices are located at 297 North Bernardo Avenue, Mountain
View, California 94043.
ITEM 2. IDENTITY AND BACKGROUND
This statement is filed jointly by BB Biotech AG ("BB Biotech") and
Biotech Target, S.A. ("Biotech Target"). Biotech Target is a wholly-owned
subsidiary of BB Biotech.
BB Biotech is a holding company incorporated in Switzerland. BB
Biotech's business address is Grafenauweg 4 CH/Switzerland. BB Biotech invests
in companies involved in the development, production, and distribution of
pharmaceuticals and other products based on biotechnology. BB Biotech is
publicly traded on the Zurich Stock Exchange.
Biotech Target is a wholly-owned subsidiary of BB Biotech
incorporated in the Republic of Panama. Biotech Target's business address is
Swiss Bank Tower, Panama 1, Republic of Panama. The principal business of
Biotech Target is to invest in companies in the biotechnology sector.
The name, business address, present principal occupation, and
citizenship of each executive officer and director of BB Biotech and Biotech
Target are set forth on Appendix A hereto, which is incorporated herein by
reference.
Page 7 of 15
<PAGE> 8
During the last five (5) years, neither BB Biotech nor Biotech Target,
nor to the best of their knowledge, any of their executive officers or
directors, has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which he was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Biotech Target purchased 1,714,286 shares of Common Stock in a
privately negotiated transaction pursuant to the Agreement for an aggregate
consideration of $15,000,002.50. Biotech Target purchased an additional
293,000 shares of Common Stock in a series of open market transactions for an
aggregate consideration of $7,077,700. Biotech Target sold 90,000 shares of
Common Stock in a series of open market transactions for an aggregate
consideration of $2,195,100. Biotech Target used capital to purchase the
shares of Aviron Common Stock, which, in turn, was working capital supplied by
BB Biotech. BB Biotech is publicly traded on the Zurich Stock Exchange, and
its shareholders are both private and institutional investors.
ITEM 4. PURPOSE OF TRANSACTION
The shares of Common Stock are being held for investment purposes
only. However, Biotech Target may, from time to time, either increase or
decrease its holdings of the Common Stock, subject to applicable laws and
limitations contained in the Agreement. Any such decision will depend,
however, on numerous factors, including, without limitation, the market price
of shares of the Common Stock, the terms and conditions related to their
purchase and sale, the prospects and profitability of Aviron, other business
and investment alternatives of Biotech Target and general economic and market
conditions.
It is Biotech Target's general policy not to interfere with the
management of companies in which it holds portfolio investments. Neither
Biotech Target nor BB Biotech have an intention to influence or direct Aviron's
affairs, modify its corporate structure or interfere with the business
decisions of its management. Except as set forth above, neither Biotech Target
nor BB Biotech, nor to the best knowledge of such persons, any executive
officer or director of either BB Biotech or Biotech
Page 8 of 15
<PAGE> 9
Target, has any plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of Aviron or the disposition
of securities of Aviron; (b) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving Aviron; (c) a sale or transfer
or a material amount of assets of Aviron; (d) any change in the present board
of directors or management of Aviron, including any plans or proposals to
change the number or term of directors or to fill any existing vacancies on the
board; (e) any material change in the present capitalization or dividend policy
of Aviron; (f) any other material change in Aviron's business or corporate
structure; (g) changes in Aviron's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of Aviron
by any person; (h) causing a class of securities of Aviron to be delisted from
a national securities exchange or to cease to be authorized to be quoted in an
interdealer quotation system of a registered national securities association;
(i) a class of equity securities of Aviron to become eligible for termination
of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934 ("Exchange Act"); or (j) any action similar to any of those enumerated
above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) BB Biotech may be deemed to be the indirect beneficial owner
of the 2,588,286 shares of Common Stock held directly by Biotech Target as of
December 8, 1997, which represents approximately 16.12% of Aviron's outstanding
shares of Common Stock. No shares of Aviron Common Stock are directly owned by
BB Biotech. To the best knowledge of BB Biotech and Biotech Target, no
director or executive officer of BB Biotech or Biotech Target owns any shares
of Aviron Common Stock.
(b) The number of shares of Aviron Common Stock to which there is
sole power to vote or to direct the vote, shared power to vote or to direct the
vote, sole power to dispose or to direct the disposition, or shared power to
dispose or direct the disposition, is set forth in the cover pages hereof and
such information is incorporated herein by reference. BB Biotech, through its
ownership of Biotech Target, may be deemed to beneficially own the shares of
Aviron Common Stock within the meaning of Regulation 13D under the Exchange
Act, and may be deemed to share with Biotech Target the power to vote, or
direct the vote of, and the power to dispose of or direct the disposition of,
the aggregate 2,588,286 shares of Aviron Common Stock held by Biotech Target.
(c) On March 27, 1997, Biotech Target purchased 1,714,286 shares
of Common Stock in a privately negotiated transaction
Page 9 of 15
<PAGE> 10
pursuant to the Agreement for an aggregate consideration of $15,000,002.50. On
March 27, 1997, Biotech Target held approximately 17.5% of the outstanding
shares of common stock.
Biotech Target completed the following open market transactions with
respect to Aviron's Common Stock:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
ACTION DATE NUMBER OF TOTAL PRICE PERCENT OF
SHARES HOLDING PER OUTSTANDING
SHARE HELD
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Bought 3/27/97 1,714,286 2,385,286 $8.75 17.5%
---------------------------------------------------------------------------------------------------
Bought 7/15/97 20,000 2,405,286 $23.59 18.2%
---------------------------------------------------------------------------------------------------
Sold 7/17/97 90,000 2,315,286 $24.39 17.5%
---------------------------------------------------------------------------------------------------
Bought 10/8/97 10,000 2,325,286 $24.63 17.5%
---------------------------------------------------------------------------------------------------
Bought 10/8/97 20,000 2,345,286 $24.38 17.7%
---------------------------------------------------------------------------------------------------
Bought 10/17/97 25,000 2,370,286 $25.75 17.9%
---------------------------------------------------------------------------------------------------
Bought 10/28/97 15,000 2,385,286 $23.29 18.0%
---------------------------------------------------------------------------------------------------
Bought 12/9/97 12,500 2,397,786 $23.13 14.9%
---------------------------------------------------------------------------------------------------
Bought 12/11/97 30,000 2,427,786 $22.89 15.1%
---------------------------------------------------------------------------------------------------
Bought 12/12/97 12,500 2,440,286 $23.33 15.2%
---------------------------------------------------------------------------------------------------
Bought 12/15/97 50,000 2,490,286 $23.18 15.5%
---------------------------------------------------------------------------------------------------
Bought 12/16/97 10,000 2,500,286 $23.25 15.6%
---------------------------------------------------------------------------------------------------
Bought 12/19/97 65,000 2,565,286 $25.13 16.0%
---------------------------------------------------------------------------------------------------
Bought 12/22/97 5,000 2,570,286 $25.50 16.0%
---------------------------------------------------------------------------------------------------
Bought 12/23/97 18,000 2,588,286 $25.50 16.1%
---------------------------------------------------------------------------------------------------
</TABLE>
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
Pursuant to the Agreement, Aviron and Biotech Target have agreed to
the following provisions as they relate to the shares of Aviron Common Stock:
(a) Registration Rights. Aviron has provided Biotech Target
with certain registration rights with respect to the resale of shares of Common
Stock held by Biotech Target. Among other things, Aviron has agreed to prepare
and file a registration
Page 10 of 15
<PAGE> 11
statement on Form S-3 with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, to register the resale of the shares by
Biotech Target on November 5, 1997 or as soon as thereafter as is practicable
and to use its best efforts to cause such registration statement to be declared
effective as soon as practicable.
(b) Restriction of Short Sales. Biotech Target has agreed not to
engage in any short sales of Aviron's Common Stock prior to the effectiveness
of a registration statement, except to the extent that any such short sale is
covered by shares of Common Stock acquired other than pursuant to the
Agreement.
(c) Reference to the Agreement. The response to this Item 6 is
qualified in its entirety by reference to the Agreement, the full text of which
is filed as Exhibit 4 hereto and incorporated herein by reference.
Except for the Agreement, neither BB Biotech nor Biotech Target nor,
to the best of their knowledge, any of the executive officers or directors of
either BB Biotech or Biotech Target, is a party to any contract, arrangement,
understanding, or relationship (legal or otherwise) with any person with
respect to any securities of Aviron (including the shares of Common Stock),
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, divisions of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1: Translation of minutes of the October 18, 1995, Board of
Directors Meeting of Biotech Target (evidencing a power of
attorney in favor of Dr. Andreas Bremer).*
Exhibit 2: Translation of minutes of the January 3, 1997 Board of
Directors Meeting of Biotech Target (evidencing a power of
attorney in favor of Dr. Anders Hove).*
Exhibit 3: Translation of evidence of a power of attorney in favor of
Victor Bischoff and Hans-Joerg Graf on behalf of BB Biotech.**
Exhibit 4: Agreement by and between BB Biotech and Biotech Target with
respect to the filing of this disclosure statement.
Page 11 of 15
<PAGE> 12
Exhibit 5: Common Stock Purchase Agreement dated March 27, 1997
- ----------------
* See Powers of Attorney, attached as Exhibits 1 and 2 to the Schedule 13D
related to Alexion Pharmaceuticals, Inc. filed with the Securities and Exchange
Commission on September 18, 1997, which Exhibit is incorporated by reference
herein.
** See Power of Attorney, attached as an Exhibit 99.E to the Schedule 13D
relating to Biogen, Inc. filed with the Securities and Exchange Commission on
June 2, 1994, which Exhibit is incorporated by reference herein.
Page 12 of 15
<PAGE> 13
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BB BIOTECH AG
Date: December 24, 1997 By: /s/ Hans-Joerg Graf
--------------------------
Name: Hans-Joerg Graf
------------------------
Date: December 24, 1997 By: /s/ Dr. Victor Bischoff
--------------------------
Name: Dr. Victor Bischoff
------------------------
BIOTECH TARGET S.A.
Date: December 24, 1997 By: /s/ Dr. Andreas Bremer
--------------------------
Name: Dr. Andreas Bremer
------------------------
Date: December 24, 1997 By: /s/ Dr. Anders Hove
--------------------------
Name: Dr. Anders Hove
------------------------
Page 13 of 15
<PAGE> 14
APPENDIX A TO ITEM 2
<TABLE>
<CAPTION>
PRESENT
NAME AND POSITION RESIDENCE OR PRINCIPAL
WITH COMPANY BUSINESS ADDRESS OCCUPATION
- ------------ ---------------- ----------
<S> <C> <C>
BB BIOTECH
Dr. Ernst Thomke Vordergasse 3, Chairman
(Swiss citizen) 8200 Schaffhausen, and Director
CH/Switzerland
Dr. Victor Bischoff Vordergasse 3, Vice-
(Swiss citizen) 8200 Schaffhausen, Chairman
CH/Switzerland and Director
Dr. David Baltimore Massachusetts Institute Professor
(U.S. citizen) of Technology and Director
Building 68, Room 380
77 Massachusetts Avenue
Cambridge, MA 02139
BIOTECH TARGET
Dr. Andreas Bremer Grafenauweg 4, signatory
(German citizen) 6301 Zug authority
CH/Switzerland
Dr. Anders Hove Grafenauweg 4, signatory
(Danish citizen) 6301 Zug authority
CH/Switzerland
Hans-Joerg Graf Grafenauweg 4, signatory
(Swiss citizen) 6301 Zug authority
CH/Switzerland
Pablo Javier Espino Swiss Bank Tower, President
(Panamanian citizen) Panama 1, and Director
Republic of Panama
Adelina M. de Estribi Swiss Bank Tower, Director
(Panamanian citizen) Panama 1,
Republic of Panama
</TABLE>
Page 14 of 15
<PAGE> 1
EXHIBIT 4
JOINT FILING AGREEMENT
We, the undersigned, hereby express our agreement that the attached
Schedule 13D (including all amendments thereto) is filed on behalf of each of
the undersigned.
BB BIOTECH AG
Date: December 24, 1997 By: /s/ Hans-Joerg Graf
-------------------------
Name: Hans-Joerg Graf
-----------------------
Date: December 24, 1997 By: /s/ Dr. Victor Bischoff
-------------------------
Name: Dr. Victor Bischoff
-----------------------
BIOTECH TARGET S.A.
Date: December 24, 1997 By: /s/ Dr. Andreas Bremer
-------------------------
Name: Dr. Andreas Bremer
-----------------------
Date: December 24, 1997 By: /s/ Dr. Anders Hove
-------------------------
Name: Dr. Anders Hove
-----------------------
Page 15 of 15
<PAGE> 1
AVIRON
COMMON STOCK PURCHASE AGREEMENT
MARCH 27,1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 1. PURCHASE AND SALE OF COMMON STOCK ................................................. 1
SECTION 2. CLOSING DATE; DELIVERY ............................................................ 1
2.1 Closing Date ......................................................................... 1
2.2 Delivery ............................................................................. 1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ..................................... 1
3.1 Organization and Standing ............................................................ 1
3.2 Corporate Power; Authorization ....................................................... 1
3.3 Issuance and Delivery of the Shares .................................................. 2
3.4 Full Disclosure ...................................................................... 2
3.5 Litigation ........................................................................... 2
3.6 Governmental Consents ................................................................ 3
3.7 No Material Adverse Change ........................................................... 3
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER ............................ 3
4.1 Authorization ........................................................................ 3
4.2 Investment Experience ................................................................ 3
4.3 Investment Intent .................................................................... 3
4.4 Registration or Exemption Requirements ............................................... 4
4.5 Restriction on Short Sales ........................................................... 4
4.6 No Legal, Tax or Investment Advice ................................................... 4
SECTION 5. CONDITIONS TO CLOSING OF PURCHASER ................................................ 4
5.1 Representations and Warranties ....................................................... 4
5.2 Legal Opinion ........................................................................
5.3 Officers' Certificate ................................................................ 5
5.4 Covenants ............................................................................ 5
SECTION 6. CONDITIONS TO CLOSING OF COMPANY .................................................. 5
6.1 Representations and Warranties ....................................................... 5
6.2 Covenants ............................................................................ 5
SECTION 7. REGISTRATION RIGHTS ............................................................... 5
7.1 Registration Requirements ............................................................ 5
7.2 Indemnification and Contribution ..................................................... 7
SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF SHARES: COMPLIANCE W1TH SECURITIES ACT ......... 10
8.1 Restrictions on Transferability ...................................................... 10
8.2 Restrictive Legend ................................................................... 10
8.3 Transfer of Shares after Registration ................................................ 10
8.4 Purchaser Information ................................................................ 11
SECTION 9. MISCELLANEOUS ..................................................................... 11
9.1 Waivers and Amendments ............................................................... 11
9.2 Governing Law ........................................................................ 11
9.3 Survival ............................................................................. 11
9.4 Successors and Assigns ............................................................... 11
9.5 Entire Agreement ..................................................................... 11
9.6 Notices, etc. ........................................................................ 11
9.7 Severability of this Agreement ....................................................... 13
9.8 Counterparts ......................................................................... 13
9.9 Further Assurances ................................................................... 13
9.10 Expenses ............................................................................. 13
</TABLE>
i.
<PAGE> 3
AVIRON
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made as of March
27, 1997 (the "Effective Date'), by and between AVIRON, a Delaware corporation
(the "Company") and BIOTECH TARGET, S.A., a corporation organized under the laws
of Panama (the "Purchaser").
SECTION 1. PURCHASE AND SALE OF COMMON STOCK
Subject to the terms and conditions of this Agreement, the Company agrees
to issue and sell to Purchaser and Purchaser agrees to purchase from the Company
1,714,286 shares of the Company's Common Stock, $0.001 par value (the "Shares"),
for a purchase price of $15,000,002.50.
SECTION 2. CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the offices of Cooley Godward LLP,
Five Palo Alto Square, 3000 El Camino Real, Palo Alto, California, 94306 at
10:00 a.m., on March 27, 1997 or at such other time and place upon which the
Company and Purchaser shall agree. The date of the Closing is hereinafter
referred to as the "Closing Date."
2.2 DELIVERY. At the Closing, the Company will deliver to Purchaser a
certificate, registered in Purchaser's name, representing the number of shares
of Common Stock to be purchased by Purchaser. Such delivery shall be against
payment of the purchase price therefor by wire transfer to the Company's bank
account.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser as of the Closing Date as
follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has full power and authority to own and operate its properties and assets
and to carry on its business as presently conducted and as proposed to be
conducted. The Company is qualified as a foreign corporation to do business in
each jurisdiction in the United States in which the ownership of its property or
the conduct of its business requires such qualification, except where any
statutory fines or penalties or any corporate disability imposed for the failure
to qualify would not materially or adversely affect the Company, its assets,
financial condition or operations. The Company has no subsidiaries.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power to, and has taken all requisite corporate action to, execute and
deliver this Agreement,
1.
<PAGE> 4
to sell and issue the Shares and to carry out and perform all of its obligations
under this Agreement. This Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting the enforcement of creditors' rights
generally, (ii) as limited by equitable principles generally and (iii) as to
those provisions of Section 7.2 relating to indemnity or contribution, as may be
limited by applicable laws. The execution and delivery of this Agreement does
not, and the performance of this Agreement and the compliance with the
provisions hereof and the issuance, sale and delivery of the Shares by the
Company will not materially conflict with, or result in a material breach or
violation of the terms, conditions or provisions of, or constitute a material
default under, or result in the creation or imposition of any material lien
pursuant to the terms of, the Certificate of Incorporation or Bylaws of the
Company or (a) any governmental statute, law, rule applicable to the Company or
(b) order, writ, judgment, injunction, decree, determination or award which has
been entered against the Company and of which we are aware, the violation of
which would materially and adversely affect the Company, its assets, financial
condition or operations.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued and paid
for in compliance with the provisions of this Agreement, will be validly issued,
fully paid and nonassessable. The issuance and delivery of the Shares is not
subject to preemptive, co-sale, right of first refusal or any other similar
rights of the stockholders of the Company or any liens or encumbrances,
provided, however, that the Shares may be subject to restrictions on transfer
under state and/or federal securities laws as set forth herein or as otherwise
required by such laws at the time a transfer is proposed.
3.4 FULL DISCLOSURE. The Company has furnished to Purchaser the following
documents filed with or to be filed with the Securities and Exchange Commission
(collectively, the "SEC Documents") and the Company warrants that the
information contained in such documents, as of their respective dates, did not
contain any untrue statement of a material fact, and did not omit to state any
material fact necessary to make any statement, in light of the circumstances
under which such statement was made, not misleading:
(a) The prospectus for the Company's initial public offering of
Common Stock, dated November 5, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1996.
(c) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
3.5 LITIGATION. Except as set forth in the SEC Documents, there is no
pending or, to the Company's knowledge, threatened action, suit or other
proceeding before any court, governmental body or authority, or arbitrator to
which the Company is a party or to which its property or assets are subject.
2.
<PAGE> 5
3.6 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
Federal, state, or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement except for (a) compliance with the securities and blue sky laws
in the states and other jurisdictions in which shares of Common Stock arc
offered and/or sold, which compliance will be effected in accordance with such
laws, and (b) the filing of a registration statement and all amendments thereto
with the SEC as contemplated by Section 7.1 of this Agreement.
3.7 NO MATERIAL ADVERSE CHANGE. Since December 31, 1996, there have not
been any changes in the assets, liabilities, financial condition or operations
of the Company from that reflected in the SEC Documents except changes in the
ordinary course of business or which have not been, either individually or in
the aggregate, materially adverse.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Purchaser hereby represents and warrants to the Company, effective as of
the Closing Date, as follows:
4.1 AUTHORIZATION. Purchaser represents and warrants to the Company that:
(i) Purchaser has all requisite legal and corporate or other power and capacity
and has taken all requisite corporate or other action to execute and deliver
this Agreement, to purchase the Shares and to carry out and perform all of its
obligations under this Agreement; and (ii) this Agreement constitutes the legal,
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, or similar laws relating to or affecting the enforcement of
creditors' rights generally and (b) as limited by equitable principles
generally.
4.2 INVESTMENT EXPERIENCE. Purchaser is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser is aware of the Company's business affairs and
financial condition and has had access to and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision to
acquire the Shares. Purchaser has such business and financial experience as is
required to give it the capacity to protect its own interests in connection with
the purchase of the Shares.
4.3 INVESTMENT INTENT. Purchaser is purchasing the Shares for its own
account as principal, for investment purposes only, and not with a view to, or
for, resale, distribution or fractionalization thereof, in whole or in part,
within the meaning of the Securities Act. Purchaser understands that its
acquisition of the Shares has not been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of Purchaser's investment intent as expressed herein. Purchaser
has completed or caused to be completed the Purchaser Certificates/Questionnaire
attached hereto as Exhibits A-1 through A-3 for use in connection with the sale
of Shares and in preparation of the Registration
3.
<PAGE> 6
Statement (as defined below), will deliver the such Certificates/Questionnaires
to the Company on or prior to the Closing Date, and the responses provided
therein shall be true and correct as of the Closing Date. Purchaser has, in
connection with its decision to purchase the Shares, relied solely upon the SEC
Documents and the representations and warranties of the Company contained
herein.
4.4 REGISTRATION OR EXEMPTION REQUIREMENTS. Purchaser further acknowledges
and understands that the Shares must be held for investment purposes, and they
may not be resold or otherwise transferred except in a transaction registered
under the Securities Act or an exemption from such registration is available.
Purchaser understands that the certificate(s) evidencing the Shares will be
imprinted with a legend that prohibits the transfer of the Shares unless (i)
they are registered or such registration is not required, and (ii) if the
transfer is pursuant to an exemption from registration other than Rule 144 under
the Securities Act ("Rule 144") and, if the Company shall so request in writing,
an opinion of counsel satisfactory to the Company is obtained to the effect that
the transaction is so exempt and in compliance with applicable state law.
4.5 RESTRICTION ON SHORT SALES. Purchaser represents and warrants to and
covenants with the Company that Purchaser has not engaged and will not engage in
any short sales of the Company's Common Stock prior to the effectiveness of the
Registration Statement, except to the extent that any such short sale is fully
covered by shares of Common Stock of the Company other than the Shares.
4.6 NO LEGAL, TAX OR INVESTMENT ADVICE. Purchaser understands that nothing
in this Agreement or any other materials presented to Purchaser in connection
with the purchase and sale of the Shares constitutes legal, tax or investment
advice and that no independent legal counsel has reviewed these documents and
materials on Purchaser's behalf. Purchaser has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Shares.
SECTION 5. CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligation to purchase the Initial Shares at the Closing is,
at the option of Purchaser, subject to the fulfillment or waiver as of the
Closing Date of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Company in Section 3 hereof shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of said date.
5.2 LEGAL OPINION. The Company shall have delivered a legal opinion from
Cooley Godward LLP, counsel to the Company, addressed to Purchaser in the form
attached hereto as Exhibit C with respect to the sale of the Shares by the
Company hereunder.
4.
<PAGE> 7
5.3 OFFICERS' CERTIFICATE. The Company shall deliver to Purchaser a
certificate, dated as of the Closing Date, signed by the President and Chief
Financial Officer of the Company, stating that the representations and
warranties set forth in Section 3 are true as of and all of the closing
conditions set forth in Section 5 have been satisfied on the Closing Date.
5.4 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects.
SECTION 6. CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares is, at the option of
the Company, subject to the fulfillment or waiver of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations made by Purchaser
in Section 4 hereof shall be true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
with the same force and effect as if they had been made on and as of such date.
6.2 COVENANTS. All covenants, agreements and conditions contained in this
Agreement to be performed by Purchaser on or prior to the Closing Date shall
have been performed or complied with in all material respects.
SECTION 7. REGISTRATION RIGHTS
7.1 REGISTRATION REQUIREMENTS
(a) Except as provided in paragraph (d) below, the Company shall use
its best efforts to prepare and file a registration statement on Form S-3 with
the SEC under the Securities Act to register the resale of the Shares by
Purchaser (the "Registration Statement") on November 5, 1997, or as soon
thereafter as is practicable and to use its best efforts to cause the
Registration Statement to be declared effective as soon as practicable. In the
event that at any time the filing of such Registration Statement is undertaken
or is required to be undertaken the Company fails to qualify for use of Form S-3
for purposes of registering for resale the Shares, the Company shall cause a
registration statement on Form S-1 to be filed as soon as practicable
thereunder. The Purchaser agrees to furnish promptly to the Company in writing
all information reasonably required by the Company to file such Registration
Statement.
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and Purchaser shall pay all Selling Expenses (as defined below) and
other expenses that are not Registration Expenses relating to the Shares resold
by Purchaser. "Registration Expenses" shall mean all expenses, except for
Selling Expenses, incurred by the Company in complying with the registration
provisions herein described, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel and independent public
5.
<PAGE> 8
accountants for the Company, blue sky fees, transfer agent fees and expenses and
the expense of any special audits incident to or required by any such
registration. "Selling Expenses" shall mean selling commissions, underwriting
fees and stock transfer taxes applicable to the Shares and, subject to Section
9.10, all fees and disbursements of counsel for Purchaser.
(c) In the case of the registration effected by the Company pursuant
to these registration provisions, the Company will use its best efforts to: (i)
keep such registration effective until the earlier of (A) the second anniversary
of the Closing Date, (B) such date as all of the Shares have been resold or (C)
such time as all of the Shares held by Purchaser can be sold within a given
three-month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144; (ii) prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus used
in connection with the Registration Statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by the Registration Statement; (iii) furnish such number of
prospectuses and other documents incident thereto, including any amendment of or
supplement to the prospectus, as Purchaser from time to time may reasonably
request in order to facilitate the public sale or other disposition of all or
any of the Shares held by Purchaser; (iv) cause all Shares registered as
described herein to be listed on each securities exchange and quoted on each
quotation service on which similar securities issued by the Company are then
listed or quoted; (v) provide a transfer agent and registrar for all Shares
registered pursuant to the Registration Statement and a CUSIP number for all
such Shares; (vi) otherwise use its best efforts promptly to comply with all
applicable rules and regulations of the SEC; and (vii) file the documents
required of the Company and otherwise use its best efforts promptly to obtain,
if applicable, and maintain requisite blue sky clearance in (A) all
jurisdictions in which any of the Shares are originally sold and (B) all other
states specified in writing by Purchaser, provided as to clause (B), however,
that the Company shall not be required to qualify to do business or consent to
service of process in any state in which it is not now so qualified or has not
so consented. The Company shall use its best efforts to qualify for use of Form
S-3 under the Securities Act to register the resale of the Shares and to
maintain such qualification during the periods described in paragraph (i).
(d) The Company may delay the filing of the Registration Statement
for up to six months (i.e., until May 5, 1998) by giving written notice to
Purchaser if the Company shall have determined that the Company may be required
to disclose any material corporate development which disclosure may have a
material effect on the Company.
(e) Following the effectiveness of the Registration Statement, the
Company may, at any time, but not more than once in any six-month period,
suspend the effectiveness of such registration statement for up to 45 days, as
appropriate (a "Suspension Period"), by giving notice to Purchaser, if the
Company shall have determined that the Company may be required to disclose any
material corporate development which disclosure may have a material effect on
the Company. The Company agrees to use commercially reasonable efforts to
minimize the length of any suspension. The duration of any Suspension Period
shall be added to the period of time that the Company agrees to keep the
Registration Statement effective. Purchaser agrees that, upon receipt of any
notice from the Company of a Suspension Period, Purchaser shall
6.
<PAGE> 9
forthwith discontinue disposition of shares covered by such Registration
Statement or prospectus until Purchaser (i) is advised in writing by the Company
that the use of the applicable prospectus may be resumed, (ii) has received
copies of a supplemental or amended prospectus, if applicable, and (iii) has
received copies of any additional or supplemental filings which are
incorporated or deemed to be incorporated by reference in such prospectus.
(f) The Company will, as expeditiously as possible, notify Purchaser
(i) of the effective date of the Registration Statement and the date when any
post-effective amendment the Registration Statement becomes effective; (ii) of
any stop order or notification from Securities and Exchange Commission or any
other jurisdiction as to the suspension of the effectiveness of the Registration
Statement: and (iii) of the end of any suspension hereunder.
(g) With a view to making available to Purchaser the benefits of
Rule 144 and any other rule or regulation of the SEC that may at any time permit
Purchaser to sell Shares to the public without registration or pursuant to
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) the second anniversary of the Closing Date or (B) such
date as all of the Shares shall have been resold; (ii) file with the SEC in a
timely manner all reports and other documents required of the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and maintain
registration of its Common Stock under Section 12 of the Exchange Act; and (iii)
furnish to Purchaser upon request, as long as Purchaser owns any Shares, (A) a
written statement by the Company that it has complied with the reporting
requirements of the Exchange Act, (B) a copy of the most recent annual or
quarterly report of the Company, and (C) such other information as may be
reasonably requested in order to avail Purchaser of any rule or regulation of
the SEC that permits the selling of any such Shares without registration.
7.2 INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify Purchaser and hold Purchaser
harmless from and against any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) to which Purchaser may become subject (under
the Securities Act Exchange Act, state securities laws or otherwise) insofar as
such losses, claims, damages or liabilities (or actions proceedings or
settlements in respect thereof) arise out of, or are based upon, (i) any untrue
statement (or alleged untrue statement) of a material fact contained in the
Registration Statement, on the effective date thereof or any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, (ii) the omission or the alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (iii) any failure by the Company (or its agents) to fulfill any undertaking
included in the Registration Statement, and the Company will, as incurred,
reimburse Purchaser for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, loss, damage,
proceeding or claim; provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of, or is based upon (i) an untrue statement (or omission) made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on
7.
<PAGE> 10
behalf of Purchaser specifically for use in preparation of the Registration
Statement, (ii) the failure of Purchaser to comply with the covenants and
agreements contained in Section 7.1 or 8.3 hereof, or (iii) any untrue statement
(or omission) in any Prospectus that is corrected in any subsequent Prospectus
that was delivered to Purchaser by the Company prior to the pertinent sale or
sales by Purchaser. The Company will reimburse Purchaser for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations under
this section and the possibility that such payments might later be held to be
improper, provided, that (i) to the extent any such payment is ultimately held
to be improper, the persons receiving such payments shall promptly refund them
and (ii) such persons shall provide to the Company, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
(b) Purchaser agrees to indemnify and hold harmless the Company from
and against any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) to which the Company may become subject (under
the Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon (i) an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Purchaser specifically for use in preparation of the
Registration Statement, provided, however, that Purchaser shall not be liable in
any such case for any untrue statement included in any Prospectus which
statement has been corrected, in writing, by Purchaser and delivered to the
Company before the sale from which such loss occurred, (ii) the failure of
Purchaser to comply with the covenants and agreements contained in Section 7.1
or 8.3 hereof, or (iii) any untrue statement in any Prospectus that is corrected
in any subsequent Prospectus that was delivered to the Purchaser prior to the
pertinent sale or sales by Purchaser, provided, further, however, that the
liability of Purchaser hereunder shall be limited to the proceeds received by
Purchaser from the sale of the Shares covered by such Registration Statement;
and provided, further, however, that the obligations of Purchaser hereunder
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action settlement is effected without the consent of Purchaser.
Purchaser will reimburse the Company for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the obligations under this section and
the possibility that such payments might later be held to be improper, provided,
that (i) to the extent any such payment is ultimately held to be improper, the
persons receiving such payments shall promptly refund them and (ii) such persons
shall provide to Purchaser, upon request, reasonable assurances of their ability
to effect any refund, when and if due.
(c) Promptly after receipt by any indemnified person of a notice of
a claim or the commencement of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.2, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and the indemnifying person shall have been notified thereof,
the
8.
<PAGE> 11
indemnifying person shall be entitled to participate therein, and, to the extent
that it shall wish, to assume and undertake the defense thereof, with counsel
reasonably satisfactory to the indemnified person. After notice from the
indemnifying person to such indemnified person of the indemnifying person's
election to assume and undertake the defense thereof, the indemnifying person
shall not be liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection with the defense
thereof; provided, however, that if there exists or shall exist a conflict of
interest that would make it inappropriate in the reasonable judgment of the
indemnified person for the same counsel to represent both the indemnified person
and such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the expense of
such indemnifying person.
(d) If the indemnification provided for in this Section 7.2 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions proceedings or settlements in respect thereof) referred
to therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Purchaser
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or Purchaser on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), Purchaser shall not be required to contribute
any amount in excess of the amount by which the amount received by Purchaser
(net of Selling Expenses) from the sale of the Shares to which such loss relates
exceeds the amount of any damages which Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and Purchaser under this Section
7.2 shall be in addition to any liability which the Company and Purchaser may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company or Purchaser within the meaning of the
Securities Act.
9.
<PAGE> 12
SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF SHARES: COMPLIANCE WITH SECURITIES
ACT
8.1 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be transferable
in the absence of a registration under the Securities Act or an exemption
therefrom or in the absence of compliance with any term of this Agreement. The
Company shall be entitled to give stop transfer instructions to its transfer
agent with respect to the Shares in order to enforce the foregoing restrictions.
8.2 RESTRICTIVE LEGEND. Each certificate representing Shares shall bear
substantially the following legends (in addition to any legends required under
applicable securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
ADDITIONALLY, THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO CERTAIN RESTRICTIONS SPECIFIED IN THE COMMON STOCK PURCHASE
AGREEMENT DATED MARCH [27], 1997 BETWEEN THE COMPANY AND THE ORIGINAL
PURCHASER, AND NO TRANSFER OF SHARES SHALL BE VALID OR EFFECTIVE ABSENT
COMPLIANCE WITH SUCH RESTRICTIONS. ALL SUBSEQUENT HOLDERS OF THIS
CERTIFICATE WILL HAVE AGREED TO BE BOUND BY CERTAIN OF THE TERMS OF THE
AGREEMENT, INCLUDING SECTIONS 7.1 AND 8.3 OF THE AGREEMENT. COPIES OF THE
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
REGISTERED HOLDER OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.
Upon the request of Purchaser, the Company shall remove the foregoing
legend from the certificates evidencing the Shares and issue to Purchaser new
certificates free of any transfer legend if with such request, and at the
request of the Company, the Company shall have received an opinion of counsel
satisfactory to the Company, to the effect that any transfers by Purchaser of
such Shares may be made to the public without compliance with either Section 5
of the Securities Act or Rule 144 thereunder and applicable state securities
laws.
8.3 TRANSFER OF SHARES AFTER REGISTRATION. Purchaser hereby covenants with
the Company not to make any sale of the Shares except either (i) in accordance
with the Registration Statement, in which case Purchaser covenants to comply
with the requirement of delivering a current prospectus, or (ii) in accordance
with Rule 144, in which case Purchaser covenants to comply with Rule 144.
Purchaser further acknowledges and agrees that such Shares are not transferable
on the books of the Company unless the certificate submitted to the Company's
transfer agent evidencing such Shares is accompanied by a separate certificate
executed by an
10.
<PAGE> 13
officer of, or other person duly authorized by, the Purchaser in the form
attached hereto as Exhibit B.
8.4 PURCHASER INFORMATION. Purchaser covenants that it will promptly
notify the Company in writing of any changes in the information set forth in the
Registration Statement regarding Purchaser.
SECTION 9. MISCELLANEOUS
9.1 WAIVERS AND AMENDMENTS. The terms of this Agreement may be waived or
amended with the written consent of the Company and Purchaser.
9.2 GOVERNING LAW. This Agreement shall be governed in all respects by and
construed in accordance with the laws of the State of California without any
regard to conflicts of laws principles.
9.3 SURVIVAL. The representations, warranties, covenants and agreements
made in this Agreement shall survive any investigation made by the Company or
Purchaser and the Closing. With respect to any registration made pursuant to
this Agreement, the covenants and agreements set forth in section 7.1 shall
continue in effect until all obligations hereunder with respect thereto are
fulfilled, and provided that the indemnification and contribution obligations as
set forth in Section 7.2 shall survive for the period of the statute of
limitations with respect thereto.
9.4 SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this Agreement. Notwithstanding the foregoing,
Purchaser shall not assign this Agreement without the prior written consent of
the Company.
9.5 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
thereof.
9.6 NOTICES, ETC. All notices and other communications required or
permitted under this Agreement shall be effective upon receipt and shall be in
writing and may be delivered in person, by telecopy, overnight delivery service
or registered or certified United States mail, addressed to the Company or
Purchaser, as the case may be, at their respective addresses set forth below:
11.
<PAGE> 14
If to the Company:
Aviron
297 North Bernardo Avenue
Mountain View, CA 94043
Attn: J. Leighton Read, M.D.
President and Chief Executive Officer
Telephone: (415) 919-6500
Facsimile: (415) 919-6610
With a copy to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Attn: Robert J. Brigham, Esq.
Telephone: (415) 843-5000
Facsimile: (415) 857-0663
if to Purchaser:
Biotech Target, S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
With copies to:
Bellevue Asset Management AG
Grafenauweg 4
CH-6301 Zug
SWITZERLAND
Attn: Dr. Andreas Bremer
Dr. Anders Hove
Telephone: 011-41-724-5920
Facsimile: 011-41-724-5958
12.
<PAGE> 15
and
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attn: Diane Roberts, Esq./Daniel L. Goelzer, Esq.
Telephone: (202) 452-7000
Facsimile: (202) 452-7072
All notices and other communications shall be effective upon the earlier of
actual receipt thereof by the person to whom notice is directed or (i) in the
case of notices and communications sent by personal delivery or telecopy, one
business day after such notice or communication arrives at the applicable
address or was successfully sent to the applicable telecopy number, (ii) in the
case of notices and communications sent by overnight delivery service, at noon
(local time) on the second business day following the day such notice or
communication was sent, and (iii) in the case of notices and communications sent
by United States mail, seven days after such notice or communication shall have
been deposited in the United States mail. Any notice delivered to a party
hereunder shall be sent simultaneously, by the same means, to such party's
counsel as set forth above.
9.7 SEVERABILITY OF THIS AGREEMENT. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
9.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9.9 FURTHER ASSURANCES. Each party to this Agreement shall do and perform
or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as the other party hereto may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
9.10 EXPENSES. The Company agrees to bear the cost of reasonable fees and
expenses of one counsel for the Purchaser, in an amount not to exceed $15,000,
and reasonable fees and expenses of one counsel for the Purchaser in connection
with its review of the Registration Statement.
13.
<PAGE> 16
The foregoing agreement is hereby executed as of the date first above written.
AVIRON BIOTECH TARGET, S.A.
By: /s/ J. Leighton Read, M.D. By: /s/ Dr. Andreas Bremer
---------------------------- -----------------------------
J. Leighton Read, M.D. Dr. Andreas Bremer
Chief Executive Officer Authorized Signatory
By: /s/ M. Jorg Graf
-----------------------------
M. Jorg Graf
Authorized Signatory
14.
<PAGE> 17
EXHIBIT A
INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Common Stock Purchase Agreement)
A. Complete the following items in the Common Stock Purchase Agreement:
1. Provide the information regarding the Purchaser requested on the
signature page. The Agreement must be executed by an individual
authorized to bind the Purchaser.
2. Exhibit A-1 - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire;
3. Exhibit A-2 - Registration Statement Questionnaire:
Provide the information requested by the Registration Statement
Questionnaire.
4. Exhibit A-3 - Purchaser Certificate:
Provide the information requested by the Certificate.
5. Return the signed Purchase Agreement including the properly
completed Exhibit A to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Attn: Robert J. Brigham, Esq.
Fax: (415) 857-0663
B. Instructions regarding the transfer of funds for the purchase of Shares
will be telecopied to Purchaser by the Company at a later date.
C. Upon the resale of the Shares by Purchaser after the Registration
Statement covering the Shares is effective, as described in the Purchase
Agreement, Purchaser:
(i) must deliver a current prospectus, and annual and quarterly
reports of the Company to the buyer (prospectuses, and annual
and quarterly reports may be obtained from the Company at the
Purchaser's request); and
15.
<PAGE> 18
(ii) must send a letter in the form of Exhibit B to the Company so that the
Shares may be properly transferred.
16.
<PAGE> 19
EXHIBIT A-1
AVIRON
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4.3 of the Agreement, please provide us with the
following information:
1. The exact name that the Shares are
to be registered in (this is the
name that will appear on the stock
certificate(s)). You may use a
nominee name if appropriate: ___________________________________
2. The relationship between the
Purchaser of the Shares and the
Registered Holder listed in
response to item 1 above: ___________________________________
3. The mailing address of the
Registered Holder listed in
response to item 1 above: ___________________________________
___________________________________
___________________________________
___________________________________
4. The Tax Identification Number of
the Registered Holder listed in
response to item 1 above: ___________________________________
<PAGE> 20
EXHIBIT A-2
AVIRON
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information regarding the Purchaser.
1. Please state your organization's name exactly as it should appear in
the Registration Statement:
2. Have you or your organization had any position, office or other
material relationship within the past three years with the Company?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE> 21
EXHIBIT A-3
AVIRON
CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, FOUNDATION AND JOINT PURCHASERS
If the investor is a corporation, partnership, trust, pension plan,
foundation, joint purchaser (other than a married couple) or other entity, an
authorized officer, partner, or trustee must complete, date and sign this
Certificate.
CERTIFICATE
The undersigned certifies that the representations and responses below are
true and accurate:
(a) The investor has been duly formed and is validly existing and has full
power and authority to invest in the Company. The person signing on behalf of
the undersigned has the authority to execute and deliver the Common Stock
Purchase Agreement on behalf of the Purchaser and to take other actions with
respect thereto.
(b) Indicate the form of entity of the undersigned:
_______ Limited Partnership
_______ General Partnership
_______ Corporation
_______ Revocable Trust (identify each grantor and indicate under
what circumstances the trust is revocable by the grantor):
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________ .
(Continue on a separate piece of paper, if necessary.)
<PAGE> 22
_______ Other Type of Trust (indicate type of trust and, for trusts
other than pension trusts, name the grantors and
beneficiaries).
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________ .
(Continue on a separate piece of paper, if necessary.)
_______ Other form of organization (indicate form of organization):
__________________________________________________________ .
(c) Indicate the date the undersigned entity was formed:_______________
(d) In order for the Company to offer and sell the Shares in conformance
with state and federal securities laws, the following information must be
obtained regarding your investor status. Please initial each category applicable
to you as an investor in the Company.
_____ 1. A bank as defined in Section 3(a)(2) of the Securities Act,
or any savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity;
_____ 2. A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934;
_____ 3. An insurance company as defined in Section 2(13) of the
securities Act;
_____ 4. An investment company registered under the Investment
Company Act of 1940 or a business development company as defined in
Section 2(a)(48) of that Act;
_____ 5. A Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958;
_____ 6. A plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of $5,000,000;
_____ 7. An employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such act,
which is either a bank, savings and loan association, insurance
company, or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000
20.
<PAGE> 23
or, if a self-directed plan, with investment decisions made
solely by persons that are accredited investors;
_____ 8. A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
_____ 9. An organization,described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific purpose
of acquiring the Shares, with total assets in excess of $5,000,000;
_____ 10. A trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Shares, whose
purchase is directed by a sophisticated person who has such knowledge
and experience in financial and business matters that such person is
capable of evaluating the merits and risks of investing in the
Company;
_____ 11. An entity in which all of the equity owners qualify under
any of the above subparagraphs. If the undersigned belongs to this
investor category only, list the equity owners of the undersigned,
and the investor category which each such equity owner satisfies:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(Continue on a separate piece of paper, if necessary.)
(e) The state of incorporation or formation of the investor is___________
and the investor's principal office is located in the state of__________________
Dated:_________________,19__
____________________________
Name of investor
_________________________________
Signature and title of authorized
officer, partner or trustee
21.
<PAGE> 24
EXHIBIT B
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
To: Aviron
297 N. Bernardo Avenue
Mountain View, CA 94043
The undersigned, the Purchaser or an officer of, or other person duly
authorized by the Purchaser, hereby certifies that Biotech Target was the
Purchaser of the shares evidenced by the attached certificate, and as such,
proposes to transfer such shares on or about ___________________ either (check
the applicable box) / / (i) in accordance with the registration statement, file
number _ in which case the Purchaser certifies that the requirement of
delivering a current prospectus has been complied with or will be complied with
in connection with such sale, or / / (ii) in accordance with Rule 144 under the
Securities Act of 1933 ("Rule 144"), in which case the Purchaser certifies that
it has complied with or will comply with the requirements of Rule 144.
Print or type:
Name of Purchaser: Biotech Target
Name of Individual
representing Purchaser:___________________________________________________
Title of Individual
representing Purchaser:___________________________________________________
Signature by:
Individual representing
Purchaser:________________________________________________________________
<PAGE> 25
EXHIBIT C
FORM OF OPINION
March 27, 1997
Biotech Target, S.A.
Swiss Bank Tower
Panama 1
Republic of Panama
RE: SALE AND PURCHASE OF AVIRON COMMON STOCK
Gentlemen:
We have acted as counsel for Aviron, a Delaware corporation (the "Company"), in
connection with the issuance and sale of 1,714,286 shares of Company Common
Stock to Biotech Target, S.A., a corporation organized under the laws of Panama
("Purchaser"), pursuant to the terms of that certain Stock Purchase Agreement,
dated March 27, 1997, by and between the Company and Purchaser (the
"Agreement"). The shares of Company Common Stock issued to Purchaser at the
closing (the "Closing") are referred to herein as the "Shares". We are rendering
this opinion pursuant to Section 5.2 of the Agreement. Except as otherwise
defined herein, capitalized terms used but not defined herein have the
respective meanings given to them in the Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Agreement by the parties thereto and originals or copies
certified to our satisfaction, of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. Where we render
an opinion "to the best of our knowledge" or concerning an item "known to us" or
our opinion otherwise refers to our knowledge, it is based solely upon (i) an
inquiry of attorneys within this firm who perform legal services for the
Company, (ii) receipt of a certificate executed by an officer of the Company
covering such matters, and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the 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 authorization, execution and delivery are
prerequisites to the effectiveness of such documents (except the due
authorization, execution and delivery of the
<PAGE> 26
Biotech Target
March [27], 1997
Page 4
Agreement by the Company). We have also assumed: that all individuals executing
and delivering documents had the legal capacity to so execute and deliver; that
you have received all documents you were to receive under the Agreement; that
the Agreement is an obligation binding upon you; if you are a corporation or
other entity, that you have filed any required California franchise or income
tax returns and have paid any required California franchise or income taxes; and
that there are no extrinsic agreements or understandings among the parties to
the Agreement that would modify or interpret the terms of the Agreement or the
respective rights or obligations of the parties thereunder.
Our opinion is expressed only with respect to the federal laws of the United
States of America and the laws of the State of California and the General
Corporation Law of the State of Delaware. We express no opinion as to whether
the laws of any particular jurisdiction apply, and no opinion to the extent that
the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof. We are not rendering any opinion as to compliance
with any antifraud law, rule or regulation relating to securities, or to the
sale or issuance thereof.
With regard to our opinion in paragraph 4 below, we have examined and relied
upon a certificate executed by an officer of the Company, to the effect that the
consideration for all outstanding shares of capital stock of the Company was
received by the Company in accordance with the provisions of the applicable
Board of Directors resolutions and any plan or agreement relating to the
issuance of such shares, and we have undertaken no independent verification with
respect thereto,
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, we are of the opinion that:
1. The Company has been duty incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware.
2. The Company has the requisite corporate power to own or lease its
property and assets and to conduct its business as it is currently being
conducted and, to the best of our knowledge, is qualified as a foreign
corporation to do business in each jurisdiction in the United States in which
the ownership of its property or the conduct of its business requires such
qualification and where any statutory fines or penalties or any corporate
disability imposed for
24.
<PAGE> 27
Biotech Target
March [27], 1997
Page 4
the failure to qualify would materially or adversely affect the Company, its
assets, financial condition or operations.
3. The Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid, legal and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as rights to indemnity under Section 7.2 of the Agreement may be limited by
applicable laws and except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
laws affecting creditors' rights, and subject to general equity principles and
to limitations on availability of equitable relief, including specific
performance.
4. The Shares have been duly authorized and, upon issuance and delivery in
accordance with the terms of the Agreement, will be validly issued, fully paid
and nonassessable.
5. The issuance and sale of the Shares as contemplated by the Agreement
does not violate any provision of the Company's Certificate of Incorporation or
Bylaws and does not violate or contravene (a) any governmental statute, rule or
regulation applicable to the Company or (b) any order, writ, judgment,
injunction, decree, determination or award which has been entered against the
Company and of which we are aware, the violation or contravention of which would
materially and adversely affect the Company, its assets, financial condition or
operations.
6. All consents, approvals, authorizations, or orders of, and filings,
registrations, and qualifications with any regulatory authority or governmental
body in the United States required for the issuance and sale of the Shares as
contemplated by the Agreement, have been made or obtained.
7. The issuance and sale of the Shares as contemplated by the Agreement is
exempt from the registration requirements of the Securities Act of 1933, as
amended.
25.
<PAGE> 28
Biotech Target
March [27], 1997
Page 4
This opinion is intended solely for your benefit and is not to be made available
to or be relied upon by any other person, firm, or entity without our prior
written consent.
Very truly yours,
COOLEY GODWARD LLP
By_________________________
Alan C. Mendelson
26.
