<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 27, 1996
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
AVIRON
(Exact name of registrant as specified in its charter)
-----------------------------
DELAWARE 77-0309686
(State of Incorporation) (I.R.S. Employer Identification No.)
-----------------------------
AVIRON
297 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CA 94043
(415) 919-6500
PALO ALTO, CA 94306-2155
(Address and telephone number of principal executive offices)
-----------------------------
1996 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
NON-PLAN OPTION GRANTS
(Full title of the plans)
J. LEIGHTON READ, M.D.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
AVIRON
297 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CA 94043
(415) 919-6500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
Copies to:
ALAN C. MENDELSON, ESQ.
ROBERT J. BRIGHAM, ESQ.
COOLEY GODWARD LLP
3000 EL CAMINO REAL
FIVE PALO ALTO SQUARE
PALO ALTO, CA 94306-2155
(415) 843-5000
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED PRICE PER SHARE (1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common Stock
($.001 par value) 2,018,582 $.25 - $7.50 $11,146,158 $3,378
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The offering price per share and
aggregate offering price are based upon (a) the weighted average exercise price,
for shares subject to outstanding options granted by Aviron (the "Registrant")
under (i) the Registrant's 1996 Equity Incentive Plan (the "Incentive Plan"),
(ii) the Registrant's 1996 Non-Employee Directors' Stock Option Plan
("Directors' Plan"), and (iii) outstanding stock options granted outside the
Incentive Plan (pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Act")) or (b) the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq Stock Market for November
25, 1996, for (i) shares reserved for future grant pursuant to both the
Incentive Plan and the Directors' Plan, and (ii) shares issuable pursuant to the
Employee Stock Purchase Plan (pursuant to Rule 457(c) under the Act).
The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
-------------- ---------------- ------------------------ ------------------------
<S> <C> <C> <C>
Shares issuable pursuant to outstanding 490,056 $0.25-$7.50(1)(a) 432,213
options under 1996 Equity Incentive Plan
Shares issuable pursuant to outstanding 120,000 $1.25(1)(a) 150,000
options granted outside of the 1996 Equity
Incentive Plan
Shares reserved for future issuance 1,158,526 $7.50(1)(b) 8,688,945
pursuant to the 1996 Equity Incentive Plan
and 1996 Non-Employee Directors' Plan
Shares issuable pursuant to the Employee 250,000 $7.50(1)(b) 1,875,000
Stock Purchase Plan
Proposed Maximum Offering Price $11,146,158
Registration Fee $3,378
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Aviron (the "Registrant") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Registrant's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or either (1) the Registrant's latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Act"), that contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed, or (2) the Registrant's
effective registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Registrant's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual reports,
the prospectus or the registration statement referred to in (a) above.
(c) The description of the Registrant's Common Stock which is
contained in the registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act"). The Registrant's Bylaws also
provide that the Registrant will indemnify its directors and executive officers
and may indemnify its other officers, employees and agents to the fullest extent
permitted by Delaware law.
The Registrant's Certificate of Incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its stockholders. These provisions do not eliminate
the directors' duty of care and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
1.
<PAGE>
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER
4.1* Amended and Restated Certificate of Incorporation of the
Registrant
4.2* Bylaws of the Registrant
5. Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement
24 Power of Attorney is contained on the signature pages
99.1* The Registrant's 1996 Equity Incentive Plan.
99.2 Form of Incentive Stock Option under the 1996 Equity Incentive Plan.
99.3 Form of Non-statutory Stock Option under the 1996 Equity Incentive
Plan.
99.4** Employee Stock Purchase Plan.
99.5 Employee Stock Purchase Plan Offering Document.
99.6** 1996 Non-Employee Directors' Stock Option Plan
99.7 Form of Non-statutory Stock Option under the 1996 Non-Employee
Directors' Stock Option Plan.
99.8 Form of Non-statutory Stock Option (Performance-Based) Granted Outside
the Incentive Plan.
* Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 (Amendment No. 2, Registration No. 333-05209)
filed with the SEC on July 16, 1996.
* * Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 (Registration No. 333-05209) filed with the SEC
on June 5, 1996.
UNDERTAKINGS
(d) The undersigned registrant hereby undertakes:
a. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
i. To include any prospectus required by section 10(a)(3)
of the Securities Act;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate,
2.
<PAGE>
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
iii. To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the issuer pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
b. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(e) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(f) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
3.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Mountain View, State of
California, on November 26, 1996.
AVIRON
By /s/ J. Leighton Read, M.D.
----------------------------
J. Leighton Read, M.D.
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Leighton Read and Vera Kallmeyer,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ J. Leighton Read, M.D. Chairman and Chief November 26, 1996
- ------------------------------ Executive Officer
J. Leighton Read, M.D.
/s/ Vera Kallmeyer, M.D., Ph.D. Chief Financial Officer November 26, 1996
- ------------------------------ and Vice President,
Vera Kallmeyer, M.D., Ph.D. Corporate Development
/s/ Reid W. Dennis Director November 26, 1996
- ------------------------------
Reid W. Dennis
Director , 1996
- ------------------------------ ----------
Paul H. Klingenstein
/s/ Jane E. Shaw, Ph.D. Director November 26, 1996
- ------------------------------
Jane E. Shaw, Ph.D.
4.
<PAGE>
/s/ L. James Strand, M.D. Director November 26, 1996
- ------------------------------
L. James Strand, M.D.
/s/ Bernard Roizman, Sc.D. Director November 26, 1996
- ------------------------------
Bernard Roizman, Sc.D.
5.
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
4.1* Amended and Restated Certificate of Incorporation
of the Registrant
4.2* Bylaws of the Registrant
5. Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward LLP is contained in
Exhibit 5 to this Registration Statement
24 Power of Attorney is contained on the signature
pages
99.1** The Registrant's 1996 Equity Incentive Plan.
99.2 Form of Incentive Stock Option under the 1996
Equity Incentive Plan.
99.3 Form of Non-statutory Stock Option under the 1996
Equity Incentive Plan.
99.4** Employee Stock Purchase Plan.
99.5 Employee Stock Purchase Plan Offering Document.
99.6** 1996 Non-Employee Directors' Stock Option Plan.
99.7 Form of Non-statutory Stock Option under the 1996
Non-Employee Directors' Stock Option Plan.
99.8 Form of Non-statutory Stock Option (Performance-
Based) Granted Outside the Incentive Plan.
* Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 (Amendment No. 2, Registration No. 333-05209)
filed with the SEC on July 16, 1996.
** Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-05209) filed with the SEC on June
5, 1996.
6.
<PAGE>
[LETTERHEAD OF COOLEY GODWARD LLP]
November 27, 1996
AVIRON
297 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CA 94043
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Aviron (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of 2,018,582 shares the Company's Common Stock,
$.001 par value, (the "Shares") with respect to (a) 1,898,582 of the Shares
issuable pursuant to its 1996 Equity Incentive Plan, 1996 Non-Employee
Directors' Stock Option Plan, and Employee Stock Purchase Plan (the "Plans") and
(b) 120,000 of the Shares issuable pursuant to outstanding options granted
outside the Plans (the "Non-plan Option Agreements").
In connection with this opinion, we have examined the Registration Statement and
related prospectus, your Certificate of Incorporation and Bylaws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, Non-plan
Option Agreements, the Registration Statement and related prospectus, will be
validly issued, fully paid, and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Robert J. Brigham
RJB:sd
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1996 Equity Incentive Plan, Employee Stock
Purchase Plan, 1996 Non-employee Directors' Stock Option Plan and the
Non-plan Option Grants of Aviron of our report dated January 26, 1996 (except
as to the first paragraph of Note 1 and Note 10 as to which the date is May
30, 1996) with respect to the financial statements of Aviron included in its
Form S-1 (No. 333-05209), filed with the Securities and Exchange Commission.
Palo Alto, California
November 25, 1996
<PAGE>
AVIRON
INCENTIVE STOCK OPTION
1996 EQUITY INCENTIVE PLAN
____________________, Optionee:
Aviron (the "Company"), pursuant to its 1996 Equity Incentive Plan (the
"Plan"), has granted to you, the optionee named above, an option to purchase
shares of the common stock of the Company ("Common Stock"). This option is
intended to qualify as an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers), directors or consultants. Defined terms not explicitly
defined in this agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is ____________________
(__________).
2. VESTING. Subject to the limitations contained herein, __________ of
the shares will vest (become exercisable) on ____________, 19__ and __________
of the shares will then vest each ____________ thereafter until either (i) you
cease to provide services to the Company for any reason, or (ii) this option
becomes fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option is
___________________________ ($___________) per share, being not less than the
fair market value of the Common Stock on the date of grant of this option.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash
(including check) at the time of exercise;
(ii) Payment pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which, prior to the
issuance of
1.
<PAGE>
Common Stock, results in either the receipt of cash (or check) by the Company or
the receipt of irrevocable instructions to pay the aggregate exercise price to
the Company from the sales proceeds;
(iii) Provided that at the time of exercise the Company's
Common Stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of already-owned shares of Common Stock, held for the period
required to avoid a charge to the Company's reported earnings, and owned free
and clear of any liens, claims, encumbrances or security interests, which Common
Stock shall be valued at its fair market value on the date of exercise; or
(iv) Payment by a combination of the methods of payment
permitted by subparagraph 3(b)(i) through 3(b)(iii) above.
4. WHOLE SHARES. This option may not be exercised for any number of
shares which would require the issuance of anything other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Act.
6. TERM. The term of this option commences on __________, 19__, the date
of grant, and expires on ________________________ (the "Expiration Date," which
date shall be no more than ten (10) years from the date this option is granted),
unless this option expires sooner as set forth below or in the Plan. In no
event may this option be exercised on or after the Expiration Date. This option
shall terminate prior to the Expiration Date as follows: three (3) months after
the termination of your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company unless one of the following
circumstances exists:
(a) Your termination of Continuous Status as an Employee, Director or
Consultant is due to your permanent and total disability (within the meaning of
Section 422(c)(6) of the Code). This option will then expire on the earlier of
the Expiration Date set forth above or twelve (12) months following such
termination of Continuous Status as an Employee, Director or Consultant.
(b) Your termination of Continuous Status as an Employee, Director or
Consultant is due to your death or your death occurs within three (3) months
following your termination of Continuous Status as an Employee, Director or
Consultant for any other reason. This option will then expire on the earlier of
the Expiration Date set forth above or twelve (12) months after your death.
2.
<PAGE>
(c) If during any part of such three (3) month period you may not
exercise your option solely because of the condition set forth in paragraph 5
above, then your option will not expire until the earlier of the Expiration Date
set forth above or until this option shall have been exercisable for an
aggregate period of three (3) months after your termination of Continuous Status
as an Employee, Director or Consultant.
(d) If your exercise of the option within three (3) months after
termination of your Continuous Status as an Employee, Director or Consultant
with the Company or with an Affiliate of the Company would result in liability
under section 16(b) of the Securities Exchange Act of 1934, then your option
will expire on the earlier of (i) the Expiration Date set forth above, (ii) the
tenth (10th) day after the last date upon which exercise would result in such
liability or (iii) six (6) months and ten (10) days after the termination of
your Continuous Status as an Employee, Director or Consultant with the Company
or an Affiliate of the Company.
However, this option may be exercised following termination of Continuous
Status as an Employee, Director or Consultant only as to that number of shares
as to which it was exercisable on the date of termination of Continuous Status
as an Employee, Director or Consultant under the provisions of paragraph 2 of
this option.
In order to obtain the federal income tax advantages associated with an
"incentive stock option," the Code requires that at all times beginning on the
date of grant of the option and ending on the day three (3) months before the
date of the option's exercise, you must be an employee of the Company or an
Affiliate of the Company, except in the event of your death or permanent and
total disability. The Company has provided for continued vesting or extended
exercisability of your option under certain circumstances for your benefit, but
cannot guarantee that your option will necessarily be treated as an "incentive
stock option" if you provide services to the Company or an Affiliate of the
Company as a consultant or exercise your option more than three (3) months after
the date your employment with the Company and all Affiliates of the Company
terminates.
7. EXERCISE.
(a) This option may be exercised, to the extent specified above,
by delivering a notice of exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require pursuant
to subsection 12(e) of the Plan.
(b) By exercising this option you agree that:
(i) as a precondition to the completion of any exercise of
this option, the Company may require you to enter an arrangement providing for
the payment by you to the Company of any tax withholding obligation of the
Company arising by reason of (1) the exercise of this option; (2) the lapse of
any substantial risk of forfeiture to which the shares are subject at the time
of exercise; or (3) the disposition of shares acquired upon such exercise; and
3.
<PAGE>
(ii) you will notify the Company in writing within fifteen
(15) days after the date of any disposition of any of the shares of the Common
Stock issued upon exercise of this option that occurs within two (2) years after
the date of this option grant or within one (1) year after such shares of Common
Stock are transferred upon exercise of this option.
8. TRANSFERABILITY. This option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party
who, in the event of your death, shall thereafter be entitled to exercise this
option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company,
or of the Company to continue your employment with the Company. In addition,
nothing in this option shall obligate the Company or any Affiliate of the
Company, or their respective stockholders, Board of Directors, officers or
employees to continue any relationship which you might have as a Director or
Consultant for the Company or Affiliate of the Company.
10. NOTICES. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the address
specified below or at such other address as you hereafter designate by written
notice to the Company.
11. GOVERNING PLAN DOCUMENT. This option is subject to all the provisions
of the Plan, a copy of which is attached hereto and its provisions are hereby
made a part of this option, including without limitation the provisions of
Section 6 of the Plan relating to option provisions, and is further subject to
all interpretations, amendments, rules and regulations which
4.
<PAGE>
may from time to time be promulgated and adopted pursuant to the Plan. In the
event of any conflict between the provisions of this option and those of the
Plan, the provisions of the Plan shall control.
Dated the ____ day of __________________, 19__.
Very truly yours,
AVIRON
By
--------------------------------------
Duly authorized on behalf of the
Board of Directors
ATTACHMENTS:
1996 Equity Incentive Plan
Notice of Exercise
5.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan; and
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its Affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the undersigned
under stock option plans of the Company, and (ii) the following agreements only:
NONE
----------
(Initial)
OTHER
------------------------------
------------------------------
------------------------------
--------------------------------------------------
OPTIONEE
Address:
----------------------------------------
----------------------------------------
6.
<PAGE>
NOTICE OF EXERCISE
Aviron
297 North Bernardo Avenue
Mountain View, CA 94043 Date of Exercise: __________________
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase
the number of shares for the price set forth below.
Type of option (Check one): Incentive / / Nonstatutory / /
Stock option dated: _______________
Number of shares as
to which option is
exercised: _______________
Certificates to be
issued in name of: _______________
Total exercise price: $______________
Cash payment delivered
herewith: $______________
Value of ______ shares
of________common stock
delivered herewith(1): _______________
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms of the Aviron 1996 Equity Incentive
Plan, (ii) to provide for the payment by me to you (in the manner designated
by you) of your withholding obligation, if any, relating
_______________________
1 Shares must meet the public trading requirements set forth in the option.
Shares must be valued in accordance with the terms of the option being
exercised, must have been owned for the minimum period required in the option,
and must be owned free and clear of any liens, claims, encumbrances or security
interests. Certificates must be endorsed or accompanied by an executed
assignment separate from certificate.
1.
<PAGE>
to the exercise of this option, and (iii) if this exercise relates to an
incentive stock option, to notify you in writing within fifteen (15) days after
the date of any disposition of any of the shares of Common Stock issued upon
exercise of this option that occurs within two (2) years after the date of grant
of this option or within one (1) year after such shares of Common Stock are
issued upon exercise of this option.
I acknowledge that all certificates representing any of the Shares
subject to the provisions of the Option shall have endorsed thereon appropriate
legends reflecting any restrictions pursuant to the Company's Certificate of
Incorporation, Bylaws and/or applicable securities laws.
Very truly yours,
___________________________________
2.
<PAGE>
AVIRON
NONSTATUTORY STOCK OPTION
1996 EQUITY INCENTIVE PLAN
____________________, Optionee:
Aviron (the "Company"), pursuant to its 1996 Equity Incentive Plan (the
"Plan"), has granted to you, the optionee named above, an option to purchase
shares of the common stock of the Company ("Common Stock"). This option is not
intended to qualify and will not be treated as an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers), directors or consultants. Defined terms not explicitly
defined in this agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is _____________________
(____________).
2. VESTING. Subject to the limitations contained herein, __________ of
the shares will vest (become exercisable) on ____________, 19__ and __________
of the shares will then vest each ____________ thereafter until either (i) you
cease to provide services to the Company for any reason, or (ii) this option
becomes fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option is
_______________ ($____________) per share, being not less than 85% of the fair
market value of the Common Stock on the date of grant of this option.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash (including
check) at the time of exercise;
(ii) Payment pursuant to a program developed under Regulation T
as promulgated by the Federal Reserve Board which, prior to the issuance of
Common Stock,
1.
<PAGE>
results in either the receipt of cash (or check) by the Company or the receipt
of irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds;
(iii) Provided that at the time of exercise the Company's Common
Stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of already-owned shares of Common Stock, held for the period
required to avoid a charge to the Company's reported earnings, and owned free
and clear of any liens, claims, encumbrances or security interests, which Common
Stock shall be valued at its fair market value on the date of exercise; or
(iv) Payment by a combination of the methods of payment permitted
by subparagraph 3(b)(i) through 3(b)(iii) above.
4. WHOLE SHARES. This option may not be exercised for any number of
shares which would require the issuance of anything other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Act.
6. TERM. The term of this option commences on _________, 19__, the date
of grant and expires on _____________________ (the "Expiration Date," which date
shall be no more than ten (10) years from the date this option is granted),
unless this option expires sooner as set forth below or in the Plan. In no
event may this option be exercised on or after the Expiration Date. This option
shall terminate prior to the Expiration Date as follows: three (3) months after
the termination of your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company for any reason or for no reason
unless:
(a) such termination of Continuous Status as an Employee, Director or
Consultant is due to your permanent and total disability (within the meaning of
Section 422(c)(6) of the Code), in which event the option shall expire on the
earlier of the Expiration Date set forth above or twelve (12) months following
such termination of Continuous Status as an Employee, Director or Consultant; or
(b) such termination of Continuous Status as an Employee, Director or
Consultant is due to your death or your death occurs within three (3) months
following your termination for any other reason, in which event the option shall
expire on the earlier of the Expiration Date set forth above or twelve (12)
months after your death; or
(c) during any part of such three (3) month period the option is not
exercisable solely because of the condition set forth in paragraph 5 above, in
which event the option shall not expire until the earlier of the Expiration Date
set forth above or until it shall have been
2.
<PAGE>
exercisable for an aggregate period of three (3) months after the termination of
Continuous Status as an Employee, Director or Consultant; or
(d) exercise of the option within three (3) months after termination
of your Continuous Status as an Employee, Director or Consultant with the
Company or with an Affiliate of the Company would result in liability under
section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act), in
which case the option will expire on the earlier of (i) the Expiration Date set
forth above, (ii) the tenth (10th) day after the last date upon which exercise
would result in such liability or (iii) six (6) months and ten (10) days after
the termination of your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company.
However, this option may be exercised following termination of Continuous
Status as an Employee, Director or Consultant only as to that number of shares
as to which it was exercisable on the date of termination of Continuous Status
as an Employee, Director or Consultant under the provisions of paragraph 2 of
this option.
7. EXERCISE.
(a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to subsection
12(e) of the Plan.
(b) By exercising this option you agree that, as a precondition to
the completion of any exercise of this option, the Company may require you to
enter an arrangement providing for the cash payment by you to the Company of any
tax withholding obligation of the Company arising by reason of: (1) the exercise
of this option; (2) the lapse of any substantial risk of forfeiture to which the
shares are subject at the time of exercise; or (3) the disposition of shares
acquired upon such exercise. You also agree that any exercise of this option
has not been completed and that the Company is under no obligation to issue any
Common Stock to you until such an arrangement is established or the Company's
tax withholding obligations are satisfied, as determined by the Company.
8. TRANSFERABILITY. This option is not transferable except by will,
by the laws of descent and distribution or pursuant to a qualified domestic
relations order satisfying the requirements of Rule 16b-3 and any administrative
interpretations or pronouncements thereunder
(a "QDRO"), and shall be exercisable during your lifetime only by you or any
transferee pursuant to a QDRO. Notwithstanding the foregoing, by delivering
written notice to the Company, in a form satisfactory to the Company, you may
designate a third party who, in the event of your death, shall thereafter be
entitled to exercise this option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your
3.
<PAGE>
part to continue in the employ of the Company, or of the Company to continue
your employment with the Company. In addition, nothing in this option shall
obligate the Company or any Affiliate of the Company, or their respective
stockholders, Board of Directors, officers, or employees to continue any
relationship which you might have as a Director or Consultant for the Company or
Affiliate of the Company.
10. NOTICES. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the address
specified below or at such other address as you hereafter designate by written
notice to the Company.
11. GOVERNING PLAN DOCUMENT. This option is subject to all the provisions
of the Plan, a copy of which is attached hereto and its provisions are hereby
made a part of this option, including without limitation the provisions of
Section 6 of the Plan relating to option provisions, and is further subject to
all interpretations, amendments, rules and regulations which may from time to
time be promulgated and adopted pursuant to the Plan. In the event of any
conflict between the provisions of this option and those of the Plan, the
provisions of the Plan shall control.
Dated the ____ day of __________________, 19__.
Very truly yours,
AVIRON
By
--------------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
1996 Equity Incentive Plan
Notice of Exercise
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan; and
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its Affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on
4.
<PAGE>
that subject with the exception of (i) the options previously granted and
delivered to the undersigned under stock option plans of the Company, and
(ii) the following agreements only:
NONE
----------
(Initial)
OTHER
------------------------------
------------------------------
------------------------------
---------------------------------------------
OPTIONEE
Address:
-----------------------------------
-----------------------------------
5.
<PAGE>
AVIRON
1996 EMPLOYEE STOCK PURCHASE PLAN OFFERING
ADOPTED MARCH 6, 1996
1. GRANT; OFFERING DATE.
(a) The Board of Directors of Aviron, a Delaware corporation (the
"Company"), pursuant to the Company's 1996 Employee Stock Purchase Plan (the
"Plan"), hereby authorizes the grant of rights to purchase shares of the common
stock of the Company ("Common Stock") to all Eligible Employees (an "Offering").
The first Offering shall begin simultaneously with the effectiveness of the
Company's registration statement under the Securities Act of 1933, as amended,
with respect to the initial public offering of the Company's Common Stock (the
"Effective Date") and end on June 30, 1997 (the "Initial Offering").
Thereafter, an Offering shall begin on the date immediately following the ending
date of the preceding Offering and end six months from the Offering Date. The
first day of an Offering is that Offering's "Offering Date."
(b) Prior to the commencement of any Offering, the Board of Directors (or
the Committee described in subparagraph 2(c) of the Plan, if any) may change any
or all terms of such Offering and any subsequent Offerings. The granting of
rights pursuant to each Offering hereunder shall occur on each respective
Offering Date unless, prior to such date (a) the Board of Directors (or such
Committee) determines that such Offering shall not occur, or (b) no shares
remain available for issuance under the Plan in connection with the Offering.
2. ELIGIBLE EMPLOYEES.
All employees of the Company and each of its Affiliates (as defined in the
Plan) incorporated in the United States shall be granted rights to purchase
Common Stock under each Offering on the Offering Date of such Offering, provided
that each such employee otherwise meets the employment requirements of
subparagraph 5(a) of the Plan and has been continuously employed for at least
ten (10) days on the Offering Date of such Offering (an "Eligible Employee");
however, the 10-day eligibility requirement shall be waived with respect to the
Initial Offering only. Notwithstanding the foregoing, the following employees
shall NOT be Eligible Employees or be granted rights under an Offering: (i)
part-time or seasonal employees whose customary employment is less than 20 hours
per week or 5 months per calendar year or (ii) 5% stockholders (including
ownership through unexercised options) described in subparagraph 5(c) of the
Plan.
1.
<PAGE>
3. RIGHTS.
(a) Subject to the limitations contained herein and in the Plan, on each
Offering Date each Eligible Employee shall be granted the right to purchase the
number of shares of Common Stock purchasable with up to fifteen percent (15%) of
such employee's Earnings (as defined in the Plan without any different set of
inclusions and exclusions permitted by the Plan) paid during the period of such
Offering beginning after such Eligible Employee first commences participation;
provided, however, that no employee may purchase Common Stock on a particular
Purchase Date that would result in more than fifteen percent (15%) of such
employee's Earnings in the period from the Offering Date to such Purchase Date
having been applied to purchase shares under all ongoing Offerings under the
Plan and all other Company plans intended to qualify as "employee stock purchase
plans" under Section 423 of the Internal Revenue Code of 1986, as amended (the
"Code").
(b) Notwithstanding the foregoing, the maximum number of shares of Common
Stock an Eligible Employee may purchase on any Purchase Date in an Offering
shall be such number of shares as has a fair market value (determined as of the
Offering Date for such Offering) equal to (x) $25,000 multiplied by the number
of calendar years in which the right under such Offering has been outstanding at
any time, minus (y) the fair market value of any other shares of Common Stock
(determined as of the relevant Offering Date with respect to such shares) which,
for purposes of the limitation of Section 423(b)(8) of the Code, are attributed
to any of such calendar years in which the right is outstanding. The amount in
clause (y) of the previous sentence shall be determined in accordance with
regulations applicable under Section 423(b)(8) of the Code based on (i) the
number of shares previously purchased with respect to such calendar years
pursuant to such Offering or any other Offering under the Plan, or pursuant to
any other Company plans intended to qualify as "employee stock purchase plans"
under Section 423 of the Code, and (ii) the number of shares subject to other
rights outstanding on the Offering Date for such Offering pursuant to the Plan
or any other such Company plan.
(c) The maximum aggregate number of shares available to be purchased by
all Eligible Employees under an Offering shall be the number of shares remaining
available under the Plan on the Offering Date. If the aggregate purchase of
shares of Common Stock upon exercise of rights granted under the Offering would
exceed the maximum aggregate number of shares available, the Board shall make a
pro rata allocation of the shares available in a uniform and equitable manner.
4. PURCHASE PRICE.
The purchase price of the Common Stock under the Offering shall be the
lesser of eighty-five percent (85%) of the fair market value of the Common Stock
on the Offering Date or eighty-five percent (85%) of the fair market value of
the Common Stock on the Purchase Date, in each case rounded up to the nearest
whole cent per share. For the Initial Offering, the fair market value of the
Common Stock at the time when the Offering commences shall be the price
2.
<PAGE>
per share at which shares of Common Stock are first sold to the public in the
Company's initial public offering as specified in the final prospectus with
respect to that offering.
5. PARTICIPATION.
(a) An Eligible Employee may elect to participate in an Offering only at
the beginning of the Offering. An Eligible Employee shall become a participant
in an Offering by delivering an agreement authorizing payroll deductions. Such
deductions must be in whole dollars, with a minimum dollar amount of ten dollars
($10) per pay period and a maximum amount not expected to exceed fifteen percent
(15%) of Earnings over the course of the Offering, or in whole percentages, with
a minimum percentage of one percent (1%) and a maximum percentage of fifteen
percent (15%). A participant may not make additional payments into his or her
account. The agreement shall be made on such enrollment form as the Company
provides, and must be delivered to the Company before the Offering Date to be
effective for the remaining portion of that Offering, unless a later time for
filing the enrollment form is set by the Board for all Eligible Employees with
respect to a given Offering Date. As to the Initial Offering, the time prior to
the Offering Date for filing an enrollment form and commencing participation for
individuals who are Eligible Employees on the Offering Date for the Initial
Offering shall be determined by the Company and communicated to such Eligible
Employees.
(b) A participant may not increase or reduce his or her participation
level during the course of an Offering, except that a participant may reduce his
or her participation level to zero percent (0%) once during any Offering (except
not during the period preceding a Purchase Date specified by the Company), by
delivering a notice to the Company in such form and at such time as the Company
prescribes. Notwithstanding the foregoing, a participant may withdraw from an
Offering and receive his or her accumulated payroll deductions from the Offering
(reduced to the extent, if any, such deductions have been used to acquire Common
Stock for the participant on any prior Purchase Dates), without interest, or
reduce his or her participation percentage to zero (0), at any time prior to the
end of the Offering, excluding only each period immediately preceding a Purchase
Date specified by the Company, by delivering a withdrawal notice to the Company
in such form as the Company prescribes.
6. PURCHASES.
Subject to the limitations contained herein, on each Purchase Date, each
participant's accumulated payroll deductions (without any increase for interest)
shall be applied to the purchase of whole shares of Common Stock, up to the
maximum number of shares permitted under the Plan and the Offering. "Purchase
Date" shall be defined as the last day of each Offering.
7. NOTICES AND AGREEMENTS.
Any notices or agreements provided for in an Offering or the Plan shall be
given in writing, in a form provided by the Company, and unless specifically
provided for in the Plan
3.
<PAGE>
or this Offering shall be deemed effectively given upon receipt or, in the case
of notices and agreements delivered by the Company, five (5) days after deposit
in the United States mail, postage prepaid.
8. EXERCISE CONTINGENT ON STOCKHOLDER APPROVAL.
The rights granted under an Offering are subject to the approval of the
Plan by the shareholders as required for the Plan to obtain treatment as a tax-
qualified employee stock purchase plan under Section 423 of the Code and to
comply with the requirements of exemption from potential liability under Section
16(b) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act") set forth in Rule 16b-3 promulgated under the Exchange Act.
9. OFFERING SUBJECT TO PLAN.
Each Offering is subject to all the provisions of the Plan, and its
provisions are hereby made a part of the Offering, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan. In the event of any conflict
between the provisions of an Offering and those of the Plan (including
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan), the provisions of the Plan
shall control.
4.
<PAGE>
AVIRON
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION
_________________________, Optionee:
Aviron (the "Company"), pursuant to its 1996 Non-Employee Directors' Stock
Option Plan (the "Plan") has on __________________, 19___ granted to you, the
optionee named above, an option to purchase shares of the common stock of the
Company ("Common Stock"). This option is not intended to qualify and will not
be treated as an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for Non-Employee Directors (as defined in
the Plan).
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this option is
____________________ ( ).
2. The exercise price of this option is _________________________
($________) per share, such amount being equal to the Fair Market Value (as
defined in the Plan) of the Common Stock on the date of grant of this option.
3. Subject to the limitations contained herein, this option shall become
exercisable (i.e., vest) in installments over a period of three (3) years from
the date of grant, commencing on the date one (1) year after the date of grant
of the option, with thirty-three percent (33%) becoming exercisable one (1) year
after the date of the grant, thirty-four percent (34%) becoming exercisable two
(2) years after the date of grant and the remaining thirty-three percent (33%)
becoming exercisable three (3) years after the date of grant; provided that you
have, during the entire period from the grant date to such vesting date,
continuously served as a Non-Employee Director or employee of or consultant to
the Company or any Affiliate (as defined in the Plan), whereupon this option
shall become fully exercisable with respect to that portion of the shares
represented by that installment.
4. (a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to Section 6 of
the Plan. This option may not be exercised for any number of shares which would
require the issuance of anything other than whole shares.
(b) You may elect to pay the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash at the time
of exercise;
1.
<PAGE>
(ii) Provided that at the time of the exercise the Common Stock
is publicly traded and quoted regularly in the Wall Street Journal, payment by
delivery of shares of Common Stock already owned by you, held for the period
required to avoid a charge to the Company's reported earnings, and owned free
and clear of any liens, claims, encumbrances or security interest, which Common
Stock shall be valued at its Fair Market Value on the date preceding the date of
exercise; or
(iii) Payment pursuant to a program developed under Regulation T
as promulgated by the Federal Reserve Board which results in the receipt of cash
(or check) by the Company either prior to the issuance of shares of the Common
Stock or pursuant to the terms of irrevocable instructions issued by you prior
to the issuance of shares of the Common Stock.
(iv) Payment by a combination of the methods of payment specified
in subparagraphs (i) through (iii) above.
(c) By exercising this option you agree that the Company may require
you to enter an arrangement providing for the cash payment by you to the Company
of any tax withholding obligation of the Company arising by reason of the
exercise of this option.
5. The term of this option is ten (10) years measured from the grant
date, subject, however, to earlier termination upon your termination of service,
as set forth in Section 6 of the Plan.
6. Any notices provided for in this option or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the address specified
below or at such other address as you hereafter designate by written notice to
the Company.
7. This option is subject to all the provisions of the Plan, a copy of
which is attached hereto and its provisions are hereby made a part of this
option, including without limitation the provisions of Section 6 of the Plan
relating to option provisions, and is further subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the
provisions of this option and those of the Plan, the provisions of the Plan
shall control.
Dated the ____ day of _________________, 19__.
Very truly yours,
AVIRON
By:_____________________________
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
1996 Non-Employee Directors' Stock Option Plan
2.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan;
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its Affiliates regarding the acquisition of Common Stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options and any other stock awards previously granted and
delivered to the undersigned under stock award plans of the Company, and (ii)
the following agreements only:
NONE: _____________
(Initial)
OTHER: ___________________________________
___________________________________
___________________________________
_________________________________________________
Optionee
Address: __________________________________________________
__________________________________________________
3.
<PAGE>
NOTICE OF EXERCISE
Aviron
297 North Bernardo Avenue
Mountain View, CA 94043
Date of Exercise:
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase the
number of shares for the price set forth below.
Type of option: Nonstatutory
Stock option dated: ____________
Number of shares as
to which option is
exercised: _____________
Certificates to be
issued in name of: _____________
Total exercise price: $____________
Cash payment delivered
herewith: $____________
Value of ______ shares
of common stock delivered
herewith (1) $____________
- ---------------
(1) Shares must meet the public trading requirements set forth in the option.
Shares must be valued in accordance with the terms of the option being
exercised, must have been owned for the minimum period required in the option,
and must be owned free and clear of any liens, claims, encumbrances or security
interests. Certificates must be endorsed or accompanied by an executed
assignment separate from certificate.
1.
<PAGE>
By this exercise, I agree (i) to provide such additional documents as you
may require pursuant to the terms of the Company's 1996 Non-Employee Directors'
Stock Option Plan and (ii) to provide for the payment by me to you (in the
manner designated by you) of your withholding obligation, if any, relating to
the exercise of this option.
I acknowledge that all certificates representing any of the Shares subject
to the provisions of the Option shall have endorsed thereon appropriate legends
reflecting any restrictions pursuant to the Company's Certificate of
Incorporation, Bylaws and/or applicable securities laws.
Very truly yours,
__________________________________
2.
<PAGE>
NONSTATUTORY STOCK OPTION
________________, Optionee:
Aviron (the "Company"), has granted to you, the optionee
named above, an option to purchase shares of the common stock of
the Company ("Common Stock"). This option is not intended to
qualify as and will not be treated as an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance
of the Company's compensatory benefit plan for participation of
the Company's employees (including officers) directors or
consultants. The grant of this option and the issuance of shares
upon the exercise of this option are also intended to be exempt
from the securities qualification requirements of the California
Corporations Code pursuant to Section 25102(f) of that code.
Defined terms not explicitly defined in this agreement but
defined in the Plan shall have the same definitions as in the
Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The
total number of shares of Common Stock subject to this option is
_______________ (__________).
2. VESTING. Subject to the limitations contained herein,
__% of the shares will vest each month commencing on
____________, 19__ and continuing until either (i) you cease to
provide services to the Company for any reason, or (ii) the
option becomes fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option
is ($ ) per share.
-------------------------- -----
(b) METHOD OF PAYMENT. Payment of the exercise price
per share is due in full upon exercise of all or any part of each
installment which has accrued to you. You may elect, to the
extent permitted by applicable statutes and regulations, to make
payment of the exercise price under one of the following
alternatives:
(i) Payment of the exercise price per share
in cash (including check) at the time of exercise;
(ii) Payment pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board
which, prior to the issuance of Common Stock, results in either
the receipt of cash (or check) by the Company or the receipt
1.
<PAGE>
of irrevocable instructions to pay the aggregate exercise price
of the Company from the sales proceeds;
(iii) Payment by a combination of the methods
of payment permitted by subparagraph 3(b)(i) or 3(b)(ii) above.
4. WHOLE SHARES. This option may not be exercised for any
number of shares which would require the issuance of anything
other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to
the contrary contained herein, this option may not be exercised
unless the shares issuable upon exercise of this option are then
registered under the Act or, if such Shares are not then so
registered, the Company has determined that such exercise and
issuance would be exempt from the registration requirements of
the Act.
6. TERM. The term of this option commences on
_______________, 19__, the date of grant, and expires on
_______________, (the "Expiration Date," which date shall be no
more than ten (10) years from the date this option is granted).
In no event may this option be exercised on or after the
Expiration Date. This option shall terminate prior to the
Expiration Date as follows: three (3) months after the
termination of your Continuous Status as an Employee, Director or
Consultant with the Company or an Affiliate of the Company for
any reason or for no reason unless:
(a) such termination of Continuous Status as an
Employee, Director or Consultant is due to your disability, in
which event the option shall expire on the earlier of the
Expiration Date set forth above or twelve (12) months following
such termination of Continuous Status as an Employee, Director or
Consultant; or
(b) such termination of Continuous Status as an
Employee, Director or Consultant is due to your death or your
death occurs within three (3) months following your termination
for any other reason, in which event the option shall expire on
the earlier of the Expiration Date set forth above or twelve (12)
months after your death; or
(c) during any part of such three (3) month period the
option is not exercisable solely because of the condition set
forth in paragraph 6 above, in which event the option shall not
expire until the earlier of the Expiration Date set forth above
or until it shall have been exercisable for an aggregate period
of three (3) months after the termination of Continuous Status as
an Employee, Director or Consultant; or
(d) exercise of the option within three (3) months
after termination of your Continuous Status as an Employee,
Director or Consultant with the Company or with an Affiliate of
the Company would result in liability under section 16(b) of the
Securities Exchange Act of 1934 (the "Exchange Act), in which
case the option will expire on the earlier of (i) the Expiration
Date set forth above, (ii) the tenth (10th) day after the last
date upon which exercise would result in such liability or
(iii) six (6) months and ten (10) days after the termination of
2.
<PAGE>
your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company.
However, this option may be exercised following termination
of Continuous Status as an Employee, Director or Consultant only
as to that number of shares as to which it was exercisable on the
date of termination of Continuous Status as an Employee, Director
or Consultant under the provisions of paragraph 2 of this option.
7. REPRESENTATIONS. By executing this option agreement,
you hereby warrant and represent that you are acquiring this
option for your own account and that you have no intention of
distributing, transferring or selling all or any part of this
option except in accordance with the terms of this option
agreement and Section 25102(f) of the California Corporations
Code. You also hereby warrant and represent that you have either
(i) preexisting personal or business relationships with the
Company or any of its officers, directors or controlling persons,
or (ii) the capacity to protect your own interests in connection
with the grant of this option by virtue of the business or
financial expertise of any of your professional advisors who are
unaffiliated with and who are not compensated by the Company or
any of its affiliates, directly or indirectly.
8. EXERCISE.
(a) This option may be exercised, to the extent
specified above, by delivering a notice of exercise (in a form
designated by the Company) together with the exercise price to
the Secretary of the Company, or to such other person as the
Company may designate, during regular business hours.
(b) By exercising this option you agree that:
(i) as a precondition to the completion of
any exercise of this option, the Company may require you to enter
an arrangement providing for the cash payment by you to the
Company of any tax withholding obligation of the Company arising
by reason of: (1) the exercise of this option; (2) the lapse of
any substantial risk of forfeiture to which the shares are
subject at the time of exercise; or (3) the disposition of shares
acquired upon such exercise. You also agree that any exercise of
this option has not been completed and that the Company is under
no obligation to issue any Common Stock to you until such an
arrangement is established or the Company's tax withholding
obligations are satisfied, as determined by the Company; and
(ii) the Company (or a representative of the
underwriters) may, in connection with the first underwritten
registration of the offering of any securities of the Company
under the Act, require that you not sell or otherwise transfer or
dispose of any shares of Common Stock or other securities of the
Company during such period (not to exceed one hundred eighty
(180) days) following the effective date (the "Effective Date")
of the registration statement of the Company filed under the Act
as may be requested by the Company or the representative of the
underwriters. You further agree that the Company may impose
stop-
3.
<PAGE>
transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such period.
9. TRANSFERABILITY. This option is not transferable,
except by will or by the laws of descent and distribution, and is
exercisable during your life only by you or pursuant to a
qualified domestic relations order satisfying the requirements of
Rule 16b-3 of the Exchange Act (a "QDRO"), and is exercisable
during your life only by you or a transferee pursuant to a QDRO.
10. OPTION NOT A SERVICE CONTRACT. This option is not an
employment contract and nothing in this option shall be deemed to
create in any way whatsoever any obligation on your part to
continue in the employ of the Company, or of the Company to
continue your employment with the Company. In addition, nothing
in this option shall obligate the Company or any Affiliate of the
Company, or their respective shareholders, Board of Directors,
officers, or employees to continue any relationship which you
might have as a Director or Consultant for the Company or
Affiliate of the Company.
11. NOTICES. Any notices provided for in this option or
the Plan shall be given in writing and shall be deemed
effectively given upon receipt or, in the case of notices
delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the
address specified below or at such other address as you hereafter
designate by written notice to the Company.
Dated the __th day of ______________________, 19__.
Very truly yours,
By
--------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
Notice of Exercise
4.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein; and
(b) Acknowledges that as of the date of grant of this
option, it sets forth the entire understanding between the
undersigned optionee and the Company and its Affiliates regarding
the acquisition of stock in the Company and supersedes all prior
oral and written agreements on that subject with the exception of
(i) the options previously granted and delivered to the
undersigned under stock option plans of the Company, and (ii) the
following agreements only:
NONE
-----------
(Initial)
OTHER -------------------------------
-------------------------------
-------------------------------
-----------------------------------
ADDRESS:
5.
<PAGE>
NOTICE OF EXERCISE
Secretary
Aviron
297 North Bernardo Avenue
Mountain View, CA 94043 Date of Exercise: ____________
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect
to purchase the number of shares for the price set forth below.
Type of option: Nonstatutory
Stock option dated: ______________
Number of shares as
to which option is
exercised: ______________
Certificates to be
issued in name of: ______________
Total exerise price: $_____________
Cash payment delivered
herewith: $_____________
By this exercise, I agree (i) to provide such additional
documents as you may require, (ii) to provide for the payment by
me to you (in the manner designated by you) of your withholding
obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option, to
notify you in writing within fifteen (15) days after the date of
any disposition of any shares of Common Stock issued upon
exercise of this option that occurs within two (2) years after
the date of grant of this option or within one (1) year after
such shares of Common Stock are issued upon exercise of this
option.
I hereby make the following certifications and
representations with respect to the number of shares of Common
Stock of the Company listed above (the "Shares"), which are being
acquired by me for my own account upon exercise of the Option as
set forth above:
1.
<PAGE>
I acknowledge that the Shares have not been registered under
the Securities Act of 1933, as amended (the "Act"), and are
deemed to constitute "restricted securities" under Rule 701 and
"control securities" under Rule 144 promulgated under the Act. I
warrant and represent to the Company that I have no present
intention of distributing or selling said Shares, except as
permitted under the Act and any applicable state securities laws.
I further acknowledge that I will not be able to resell the
Shares for at least ninety days after the stock of the Company
becomes publicly traded (I.E., subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934) under Rule 701 and that more restrictive conditions
apply to affiliates of the Company under Rule 144.
I further acknowledge that all certificates representing any
of the Shares subject to the provisions of the Option shall have
endorsed thereon appropriate legends reflecting the foregoing
limitations, as well as any legends reflecting restrictions
pursuant to the Company's Articles of Incorporation, Bylaws
and/or applicable securities laws.
I further agree that, if required by the Company (or a
representative of the underwriters) in connection with the first
underwritten registration of the offering of any securities of
the Company under the Act, I will not sell or otherwise transfer
or dispose of any shares of Common Stock or other securities of
the Company during such period (not to exceed one hundred eighty
(180) days) following the effective date of the registration
statement of the Company filed under the Act (the "Effective
Date") as may be requested by the Company or the representative
of the underwriters. For purposes of this restriction I will be
deemed to own securities that (i) are owned directly or
indirectly by me, including securities held for my benefit by
nominees, custodians, brokers or pledgees; (ii) may be acquired
by me within sixty (60) days of the Effective Date; (iii) are
owned directly or indirectly, by or for my brothers or sisters
(whether by whole or half blood), spouse, ancestors and lineal
descendants; or (iv) are owned, directly or indirectly, by or for
a corporation, partnership, estate or trust of which I am a
shareholder, partner or beneficiary, but only to the extent of my
proportionate interest therein as a shareholder, partner or
beneficiary thereof. I further agree that the Company may impose
stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of such period.
Very truly yours,
___________________________________
2.
