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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 18, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AVIRON
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 77-0309686
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
297 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 919-6500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
C. BOYD CLARKE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AVIRON
297 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 919-6500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
ALAN C. MENDELSON, ESQ.
LATHAM & WATKINS
135 COMMONWEALTH DRIVE
MENLO PARK, CALIFORNIA 94025
(650) 463-4693
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are pursuant to
dividend or interest reinvestment plans, check the following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C>
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TITLE OF EACH CLASS PROPOSED MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE
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Debt Securities............................... -- --
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Common Stock, par value $0.001 per share(3)... -- --
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Total......................................... $400,000,000 $105,600
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933. Exclusive of accrued
interest, if any, on the Debt Securities.
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities Act
of 1933.
(3) Includes rights to be issued under the registrant's share purchase rights
plan.
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT
SOLICITING OFFERS TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 18, 2000
PROSPECTUS
$400,000,000
Aviron
DEBT SECURITIES
COMMON STOCK
-------------------------
Aviron may offer from time to time debt securities and common stock. The
specific terms and amounts of the securities will be fully described in
supplements to this prospectus. Please read any prospectus supplements and this
prospectus carefully before you invest. This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement.
-------------------------
OUR COMMON STOCK IS QUOTED ON THE NASDAQ NATIONAL MARKET UNDER THE SYMBOL
"AVIR." ON DECEMBER 15, 2000, THE LAST REPORTED SALE PRICE FOR OUR COMMON STOCK
ON THE NASDAQ NATIONAL MARKET WAS $63 1/8 PER SHARE.
-------------------------
INVESTING IN OUR DEBT SECURITIES OR COMMON STOCK INVOLVES RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 1.
-------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
, 2000
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus....................................... 1
Risk Factors................................................ 1
About Aviron................................................ 1
Special Note Regarding Forward-Looking Statements........... 1
Use of Proceeds............................................. 2
Ratio of Earnings to Fixed Charges.......................... 2
Description of Debt Securities.............................. 2
Description of Capital Stock................................ 10
Plan of Distribution........................................ 13
Legal Matters............................................... 14
Experts..................................................... 14
Where You Can Find More Information......................... 14
</TABLE>
-------------------------
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission. You should rely only on the information we
have provided or incorporated by reference in this prospectus or any prospectus
supplement. We have not authorized anyone to provide you with additional or
different information. We are not making an offer of these securities in any
jurisdiction where the offer is not permitted. You should assume that the
information in this prospectus or any prospectus supplement is accurate only as
of the date on the front of the document and that any information we have
incorporated by reference is accurate only as of the date of the document
incorporated by reference.
We own or have rights to trademarks or trade names that we use in
conjunction with the operation of our business. We own the FluMist trademark in
the United States and in a number of other countries. This prospectus also
includes trademarks owned by other parties.
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ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement on Form S-3 that we
filed with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf process, we may, over the next two years,
offer any combination of securities described in this prospectus in one or more
offerings up to a total amount of $400,000,000. This prospectus provides you
with a general description of the securities we may offer. Each time we use this
prospectus to offer securities, we will provide a prospectus supplement that
will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described below under the
heading "Where You Can Find More Information."
RISK FACTORS
An investment in our debt securities or common stock involves a high degree
of risk. You should consider carefully the risk factors contained in our most
recent filing on Form 10-K, as amended, and all other information contained in
and incorporated by reference in this prospectus before making an investment
decision. Additional risks and uncertainties that are not yet identified or that
we think are immaterial may also materially harm our business, operating results
and financial condition and could result in a complete loss of your investment.
ABOUT AVIRON
We are a biopharmaceutical company focused on the prevention of disease
through innovative vaccine technology. We are currently focusing our product
development and commercialization efforts on our lead product candidate,
FluMist, an investigational intranasal live virus vaccine for influenza. Our
goal is to become a leader in the discovery, development, manufacture and
marketing of innovative vaccines. Our vaccine development programs are based
both on techniques for producing weakened live virus vaccines and on our
proprietary genetic engineering technologies. Live virus vaccines, including
those for smallpox, polio, measles, mumps, rubella and chicken pox, have had a
long record of preventing disease.
We were incorporated in California in April 1992, and reincorporated in
Delaware in November 1996. Our executive offices are located at 297 North
Bernardo Avenue, Mountain View, California 94043 and our telephone number is
(650) 919-6500. Our World Wide Web address is http://www.aviron.com. Information
contained in our World Wide Web site should not be considered to be part of this
prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in the sections entitled "About This Prospectus,"
"Risk Factors," "Use of Proceeds," and elsewhere in this prospectus constitute
forward-looking statements. These statements involve known and unknown risks,
uncertainties and other factors that may cause our or our industry's results,
levels of activity, or achievements to be materially different from any future
results, levels of activity or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, those listed
under "Risk Factors" and elsewhere in this prospectus.
In some cases, you can identify forward-looking statements by terminology
such as "may," "will," "should," "intend," "expect," "plan," "anticipate,"
"believe," "estimate," "predict," "potential," or "continue," or the negative of
such terms or other comparable terminology.
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Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, events, levels of
activity, performance or achievements. Except as may be required by law, we
undertake no obligation to publicly update any forward-looking statements for
any reason, even if new information becomes available or other events occur in
the future.
USE OF PROCEEDS
Unless otherwise indicated in the prospectus supplement, the net proceeds
from the sale of securities offered by this prospectus will be used for general
corporate purposes, including capital expenditures and to meet working capital
needs. We expect from time to time to evaluate the acquisition of businesses,
products and technologies for which a portion of the net proceeds may be used,
although we currently are not planning or negotiating any such transactions.
Pending such uses, we may invest the net proceeds in interest bearing
securities.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEAR ENDED DECEMBER 31, ENDED
-------------------------------- SEPTEMBER 30,
1995 1996 1997 1998 1999 2000
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)........... -- -- -- -- -- --
</TABLE>
-------------------------
(1) Earnings for the years ended December 31, 1995, 1996, 1997, 1998 and 1999
and the nine months ended September 30, 2000 were insufficient to cover
fixed charges by an amount equal to the net loss for the periods.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our convertible
senior or subordinated debt securities issued under one or more separate senior
or subordinated indentures to be entered into between us and a trustee to be
identified in the applicable prospectus supplement. This prospectus, together
with its prospectus supplement, will describe all the material terms of a
particular series of debt securities.
The following is a summary of the most important provisions and definitions
of the indentures. For additional information, you should look at the applicable
indenture that is filed as an exhibit to the registration statement which
includes the prospectus. The indentures are substantially identical except for
the subordination provisions described below under "Subordinated Debt
Securities." In this description of the debt securities, the words "Aviron",
"we", "us" or "our" refer only to Aviron and not to any of our subsidiaries.
GENERAL
Debt securities may be issued in separate series without limitation as to
aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series.
We are not limited as to the amount of debt securities we may issue under
the indentures. The prospectus supplement will set forth:
- whether the debt securities will be senior or subordinated,
- the offering price,
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- the title,
- any limit on the aggregate principal amount,
- the person who shall be entitled to receive interest, if other than the
record holder on the record date,
- the date the principal will be payable,
- the interest rate, if any, the date interest will accrue, the interest
payment dates and the regular record dates,
- the place where payments may be made,
- any mandatory or optional redemption provisions,
- if applicable, the method for determining how the principal, premium, if
any, or interest will be calculated by reference to an index or formula,
- if other than U.S. currency, the currency or currency units in which
principal, premium, if any, or interest will be payable and whether we or
the holder may elect payment to be made in a different currency,
- the portion of the principal amount that will be payable upon
acceleration of stated maturity, if other than the entire principal
amount,
- if the principal amount payable at stated maturity will not be
determinable as of any date prior to stated maturity, the amount which
will be deemed to be the principal amount,
- any defeasance provisions if different from those described below under
"Satisfaction and Discharge; Defeasance,"
- any conversion or exchange provisions,
- any obligation to redeem or purchase the debt securities pursuant to a
sinking fund,
- whether the debt securities will be issuable in the form of a global
security,
- any subordination provisions, if different than those described below
under "Subordinated Debt Securities,"
- any deletions of, or changes or additions to, the events of default or
covenants, and
- any other specific terms of such debt securities.
Unless otherwise specified in the prospectus supplement:
- the debt securities will be registered debt securities, and
- registered debt securities denominated in U.S. dollars will be issued in
denominations of $1,000 or an integral multiple of $1,000.
Debt securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at time of
issuance is below market rates.
EXCHANGE AND TRANSFER
Debt securities may be transferred or exchanged at the office of the
security registrar or at the office of any transfer agent designated by us.
We will not impose a service charge for any transfer or exchange, but we
may require holders to pay any tax or other governmental charges associated with
any transfer or exchange.
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In the event of any potential redemption of debt securities of any series,
we will not be required to:
- issue, register the transfer of, or exchange, any debt security of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption and ending at the
close of business on the day of the mailing, or
- register the transfer of or exchange any debt security of that series
selected for redemption, in whole or in part, except the unredeemed
portion being redeemed in part.
We may initially appoint the trustee as the security registrar. Any
transfer agent, in addition to the security registrar, initially designated by
us will be named in the prospectus supplement. We may designate additional
transfer agents or change transfer agents or change the office of the transfer
agent. However, we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
GLOBAL SECURITIES
The debt securities of any series may be represented, in whole or in part,
by one or more global securities. Each global security will:
- be registered in the name of a depositary that we will identify in a
prospectus supplement,
- be deposited with the depositary or nominee or custodian, and
- bear any required legends.
No global security may be exchanged in whole or in part for debt securities
registered in the name of any person other than the depositary or any nominee
unless:
- the depositary has notified us that it is unwilling or unable to continue
as depositary or has ceased to be qualified to act as depositary,
- an event of default is continuing, or
- any other circumstances described in a prospectus supplement.
As long as the depositary, or its nominee, is the registered owner of a
global security, the depositary or nominee will be considered the sole owner and
holder of the debt securities represented by the global security for all
purposes under the indenture. Except in the above limited circumstances, owners
of beneficial interests in a global security:
- will not be entitled to have the debt securities registered in their
names,
- will not be entitled to physical delivery of certificated debt
securities, and
- will not be considered to be holders of those debt securities under the
indentures.
Payments on a global security will be made to the depositary or its nominee
as the holder of the global security. Some jurisdictions have laws that require
that certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to transfer beneficial
interests in a global security.
Institutions that have accounts with the depositary or its nominee are
referred to as "participants." Ownership of beneficial interests in a global
security will be limited to participants and to persons that may hold beneficial
interests through participants. The depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of debt
securities represented by the global security to the accounts of its
participants.
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Ownership of beneficial interests in a global security will be shown on and
effected through records maintained by the depositary, with respect to
participants' interests, or any participant, with respect to interests of
persons held by participants on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a
global security will be subject to policies and procedures of the depositary.
The depositary policies and procedures may change from time to time.
Neither we nor the trustee will have any responsibility or liability for the
depositary's or any participant's records with respect to beneficial interests
in a global security.
PAYMENT AND PAYING AGENTS
The provisions of this paragraph will apply to the debt securities unless
otherwise indicated in the prospectus supplement. Payment of interest on a debt
security on any interest payment date will be made to the person in whose name
the debt security is registered at the close of business on the regular record
date. Payment on debt securities of a particular series will be payable at the
office of a paying agent or paying agents designated by us. However, at our
option, we may pay interest by mailing a check to the record holder. The
corporate trust office will be designated as our sole paying agent.
We may also name any other paying agents in the prospectus supplement. We
may designate additional paying agents, change paying agents or change the
office of any paying agent. However, we will be required to maintain a paying
agent in each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent for payment on any debt security
which remain unclaimed at the end of two years after such payment was due will
be repaid to us. Thereafter, the holder may look only to us for such payment.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other person, in a
transaction in which we are not the surviving corporation, or convey, transfer
or lease our properties and assets substantially as an entirety to, any person,
unless:
- the successor, if any, is a U.S. corporation, limited liability company,
partnership, trust or other entity,
- the successor assumes our obligations on the debt securities and under
the indenture,
- immediately after giving effect to the transaction, no default or event
of default shall have occurred and be continuing, and
- certain other conditions are met.
EVENTS OF DEFAULT
Unless we inform you otherwise in the prospectus supplement, the indenture
will define an event of default with respect to any series of debt securities as
one or more of the following events:
(1) failure to pay principal of or any premium on any debt security of
that series when due,
(2) failure to pay any interest on any debt security of that series
for 30 days when due,
(3) failure to deposit any sinking fund payment when due,
(4) failure to perform any other covenant in the indenture continued
for 60 days after being given the notice required in the indenture,
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(5) our bankruptcy, insolvency or reorganization, and
(6) any other event of default specified in the prospectus supplement.
An event of default of one series of debt securities is not necessarily an
event of default for any other series of debt securities.
If an event of default, other than an event of default described in clause
(5) above, shall occur and be continuing, either the trustee or the holders of
at least 25% in aggregate principal amount of the outstanding securities of that
series may declare the principal amount of the debt securities of that series to
be due and payable immediately.
If an event of default described in clause (5) above shall occur, the
principal amount of all the debt securities of that series will automatically
become immediately due and payable. Any payment by us on the subordinated debt
securities following any such acceleration will be subject to the subordination
provisions described below under "Subordinated Debt Securities."
After acceleration the holders of a majority in aggregate principal amount
of the outstanding securities of that series may, under certain circumstances,
rescind and annul such acceleration if all events of default, other than the
non-payment of accelerated principal, or other specified amount, have been cured
or waived.
Other than the duty to act with the required care during an event of
default, the trustee will not be obligated to exercise any of its rights or
powers at the request of the holders unless the holders shall have offered to
the trustee reasonable indemnity. Generally, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee.
A holder will not have any right to institute any proceeding under the
indentures, or for the appointment of a receiver or a trustee, or for any other
remedy under the indentures, unless:
(1) the holder has previously given to the trustee written notice of a
continuing event of default with respect to the debt securities of that
series,
(2) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written request and
have offered reasonable indemnity to the trustee to institute the
proceeding, and
(3) the trustee has failed to institute the proceeding and has not
received direction inconsistent with the original request from the holders
of a majority in aggregate principal amount of the outstanding debt
securities of that series within 60 days after the original request.
Holders may, however, sue to enforce the payment of principal, premium or
interest on any debt security on or after the due date or to enforce the right,
if any, to convert any debt security without following the procedures listed in
(1) through (3) above.
We will furnish the trustee an annual statement by our officers as to
whether or not we are in default in the performance of the indenture and, if so,
specifying all known defaults.
MODIFICATION AND WAIVER
Aviron and the trustee may make modifications and amendments to the
indentures with the consent of the holders of a majority in aggregate principal
amount of the outstanding securities of each series affected by the modification
or amendment.
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However, neither we nor the trustee may make any modification or amendment
without the consent of the holder of each outstanding security of that series
affected by the modification or amendment if such modification or amendment
would:
- change the stated maturity of any debt security,
- reduce the principal, premium, if any, or interest on any debt security,
- reduce the principal of an original issue discount security or any other
debt security payable on acceleration of maturity,
- reduce the rate of interest on any debt security,
- change the currency in which any debt security is payable,
- impair the right to enforce any payment after the stated maturity or
redemption date,
- waive any default or event of default in payment of the principal of,
premium or interest on any debt security,
- waive a redemption payment or modify any of the redemption provisions of
any debt security,
- adversely affect the right to convert any debt security, or
- change the provisions in the indenture that relate to modifying or
amending the indenture.
SATISFACTION AND DISCHARGE; DEFEASANCE
We may be discharged from our obligations on the debt securities of any
series that have matured or will mature or be redeemed within one year if we
deposit with the trustee enough cash to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the debt
securities.
Each indenture contains a provision that permits us to elect:
- to be discharged from all of our obligations, subject to limited
exceptions, with respect to any series of debt securities then
outstanding, and/or
- to be released from our obligations under the following covenants and
from the consequences of an event of default resulting from a breach of
these covenants:
(1) the subordination provisions under the subordinated indenture, and
(2) covenants as to payment of taxes and maintenance of corporate
existence.
To make either of the above elections, we must deposit in trust with the
trustee enough money to pay in full the principal, interest and premium on the
debt securities. This amount may be made in cash and/or U.S. government
obligations. As a condition to either of the above elections, we must deliver to
the trustee an opinion of counsel that the holders of the debt securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of the action.
If any of the above events occurs, the holders of the debt securities of
the series will not be entitled to the benefits of the indenture, except for the
rights of holders to receive payments on debt securities or the registration of
transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities.
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NOTICES
Notices to holders will be given by mail to the addresses of the holders in
the security register.
GOVERNING LAW
The indentures and the debt securities will be governed by, and construed
under, the law of the State of New York.
REGARDING THE TRUSTEE
The indenture limits the right of the trustee, should it become a creditor
of us, to obtain payment of claims or secure its claims.
The trustee is permitted to engage in certain other transactions. However,
if the trustee, acquires any conflicting interest, and there is a default under
the debt securities of any series for which they are trustee, the trustee must
eliminate the conflict or resign.
SUBORDINATED DEBT SECURITIES
Payment on the subordinated debt securities will, to the extent provided in
the indenture, be subordinated in right of payment to the prior payment in full
of all our senior indebtedness. The subordinated debt securities also are
effectively subordinated to all debt and other liabilities, including trade
payables and lease obligations, if any, of our subsidiaries.
Upon any distribution of our assets upon any dissolution, winding up,
liquidation or reorganization, the payment of the principal of and interest on
the subordinated debt securities will be subordinated in right of payment to the
prior payment in full in cash or other payment satisfactory to the holders of
senior indebtedness of all senior indebtedness. In the event of any acceleration
of the subordinated debt securities because of an event of default, the holders
of any senior indebtedness would be entitled to payment in full in cash or other
payment satisfactory to such holders of all senior indebtedness obligations
before the holders of the subordinated debt securities are entitled to receive
any payment or distribution. The indenture requires us or the trustee to
promptly notify holders of designated senior indebtedness if payment of the
subordinated debt securities is accelerated because of an event of default.
We may not make any payment on the subordinated debt securities, including
upon redemption at the option of the holder of any subordinated debt securities
or at our option, if:
- a default in the payment of the principal, premium, if any, interest,
rent or other obligations in respect of designated senior indebtedness
occurs and is continuing beyond any applicable period of grace (called a
"payment default"); or
- a default other than a payment default on any designated senior
indebtedness occurs and is continuing that permits holders of designated
senior indebtedness to accelerate its maturity, and the trustee receives
a notice of such default (called a "payment blockage notice") from us or
any other person permitted to give such notice under the indenture
(called a "non-payment default").
We may resume payments and distributions on the subordinated debt
securities:
- in the case of a payment default, upon the date on which such default is
cured or waived or ceases to exist; and
- in the case of a non-payment default, the earlier of the date on which
such nonpayment default is cured or waived or ceases to exist and 179
days after the date on which the payment blockage notice is received by
the trustee, if the maturity of the designated senior indebtedness has
not been accelerated.
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No new period of payment blockage may be commenced pursuant to a payment
blockage notice unless 365 days have elapsed since the initial effectiveness of
the immediately prior payment blockage notice and all scheduled payments of
principal, premium and interest, including any liquidated damages, on the notes
that have come due have been paid in full in cash. No non-payment default that
existed or was continuing on the date of delivery of any payment blockage notice
shall be the basis for any later payment blockage notice unless the non-payment
default is based upon facts or events arising after the date of delivery of such
payment blockage notice.
If the trustee or any holder of the notes receives any payment or
distribution of our assets in contravention of the subordination provisions on
the subordinated debt securities before all senior indebtedness is paid in full
in cash, property or securities, including by way of set-off, or other payment
satisfactory to holders of senior indebtedness, then such payment or
distribution will be held in trust for the benefit of holders of senior
indebtedness or their representatives to the extent necessary to make payment in
full in cash or payment satisfactory to the holders of senior indebtedness of
all unpaid senior indebtedness.
In the event of our bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of the subordinated
debt securities may receive less, ratably, than our other creditors (including
our trade creditors). This subordination will not prevent the occurrence of any
event of default under the indenture.
As of September 30, 2000, $14.5 million senior indebtedness was
outstanding. We are not prohibited from incurring debt, including senior
indebtedness, under the indenture. We may from time to time incur additional
debt, including senior indebtedness.
We are obligated to pay reasonable compensation to the trustee and to
indemnify the trustee against certain losses, liabilities or expenses incurred
by the trustee in connection with its duties relating to the subordinated debt
securities. The trustee's claims for these payments will generally be senior to
those of noteholders in respect of all funds collected or held by the trustee.
CERTAIN DEFINITIONS
"indebtedness" means:
(1) all indebtedness, obligations and other liabilities for borrowed
money, including overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances
from banks, or evidenced by bonds, debentures, notes or similar
instruments, other than any account payable or other accrued current
liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services;
(2) all reimbursement obligations and other liabilities with respect
to letters of credit, bank guarantees or bankers' acceptances;
(3) all obligations and liabilities in respect of leases required in
conformity with generally accepted accounting principles to be accounted
for as capitalized lease obligations on our balance sheet;
(4) all obligations and other liabilities under any lease or related
document in connection with the lease of real property which provides that
we are contractually obligated to purchase or cause a third party to
purchase the leased property and thereby guarantee a minimum residual value
of the leased property to the lessor and our obligations under the lease or
related document to purchase or to cause a third party to purchase the
leased property;
(5) all obligations with respect to an interest rate or other swap,
cap or collar agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase agreement or other similar instrument or
agreement;
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(6) all direct or indirect guaranties or similar agreements in respect
of, and our obligations or liabilities to purchase, acquire or otherwise
assure a creditor against loss in respect of, indebtedness, obligations or
liabilities of others of the type described in (1) through (5) above;
(7) any indebtedness or other obligations described in (1) through (6)
above secured by any mortgage, pledge, lien or other encumbrance existing
on property which is owned or held by us; and
(8) any and all refinancings, replacements, deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements
to, any indebtedness, obligation or liability of the kind described in
clauses (1) through (7) above.
"senior indebtedness" means the principal, premium, if any, interest,
including any interest accruing after bankruptcy, and rent or termination
payment on or other amounts due on our current or future indebtedness, whether
created, incurred, assumed, guaranteed or in effect guaranteed by us, including
any deferrals, renewals, extensions, refundings, amendments, modifications or
supplements to the above. However, senior indebtedness does not include:
- indebtedness that expressly provides that it shall not be senior in right
of payment to the subordinated debt securities or expressly provides that
it is on the same basis or junior to the subordinated debt securities;
- our indebtedness to any of our majority-owned subsidiaries; and
- the subordinated debt securities.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 100 million shares of common
stock, $0.001 par value, and 5 million shares of preferred stock, $0.001 par
value.
COMMON STOCK
The holders of common stock are entitled to one vote per share on all
matters submitted to a vote of our stockholders. Subject to preferences that may
be applicable to any preferred stock outstanding at the time, the holders of
outstanding shares of common stock are entitled to receive ratably any dividends
out of assets legally available therefor as our board of directors may from time
to time determine. Upon liquidation, dissolution or winding up of our company,
holders of our common stock are entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference of any
then outstanding shares of preferred stock. Holders of common stock have no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and nonassessable. As of
December 14, 2000, there were 23,286,157 shares of common stock issued and
outstanding that were held by 336 stockholders of record.
PREFERRED STOCK
Our certificate of incorporation provides that our board of directors has
the authority, without further action by the stockholders, to issue up to five
million shares of preferred stock in one or more series. The board is able to
fix the rights, preferences, privileges and restrictions of the preferred stock,
including dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences, sinking fund terms and the number of shares
constituting any series or the designation of this series. The issuance of
preferred stock could adversely affect the voting power of holders of common
stock, and the likelihood that holders of preferred stock will receive dividend
payments and payments upon liquidation may have the effect of delaying,
deferring or preventing a change in control of our company, which could depress
the market price of our common stock. We have no present plan to issue any
shares of preferred stock.
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SHARE PURCHASE RIGHTS PLAN
In October 1997, our board of directors adopted a share purchase rights
plan, commonly known as a "poison pill." Pursuant to our rights plan, our board
of directors declared a dividend distribution of one right for each outstanding
share of common stock payable to stockholders of record as of October 23, 1997.
Each right, or Right, entitles the registered holder to acquire shares of our
Series A Junior Participating Preferred Stock, par value $0.001. The Rights are
triggered and become exercisable upon the occurrence of either (1) the date of a
public announcement of the acquisition of 20 percent or more beneficial
ownership of our common stock by a person or group, or an Acquiring Person, or
(2) ten business days, or such later time as may be set by our board of
directors, after a public announcement of a tender or exchange offer for 20
percent or more beneficial ownership of our common stock by an Acquiring Person.
If the Rights are triggered because an Acquiring Person beneficially owns 20
percent or more of our common stock, each Right effectively provides its holder,
other than a holder who is an Acquiring Person, the right to purchase shares of
common stock at a 50 percent discount from the market price at that time, upon
payment of an exercise price of $150 per Right. In addition, in the event of
certain business combinations, the Rights permit the purchase of shares of
common stock of an acquirer at a 50 percent discount from the market price at
that time. The board of directors has the right to redeem the Rights at a price
of $0.001 per Right at any time prior to the close of business on the day of the
first public announcement that a person has become an Acquiring Person. If the
Rights are triggered under certain circumstances, the board of directors may
elect to exchange each Right, other than Rights held by Acquiring Persons, for
one share of common stock. The Rights have no voting privileges and are attached
to and trade with our common stock. The board of directors also generally may
amend the terms of the Rights without the consent of the holders of the Rights.
The Rights expire on October 23, 2007. These provisions may have the effect of
deterring hostile takeovers or delaying changes in control or management of
Aviron.
WARRANTS
In February 1993, we entered into an agreement with The Mount Sinai School
of Medicine of the City University of New York, under which Mount Sinai
transferred to us rights to patents, patent applications, and associated
know-how and other technical information. In connection with these agreements,
we issued to Mount Sinai warrants to purchase, in the aggregate, up to 45,000
shares of common stock. Each warrant is exercisable for a period of five years
from specified milestone events. As of October 25, 2000, warrants to purchase
26,079 shares were exercisable at a price per share of $10.00.
In connection with an agreement entered into in February 1995 with the
University of Michigan, under which the university transferred to Aviron
intellectual property rights and technology, we agreed to issue to the
university a warrant to purchase shares of our common stock upon the first
commercial sale of a product incorporating the university's technology, for a
number of shares equal to 1.25 percent of the total issued and outstanding
shares of our common stock as of the date of the first commercial sale at a per
share exercise price of $10.00. In February 2000, we amended our licensing
agreement for cold-adapted influenza virus vaccine technology with the
University of Michigan to accelerate the issuance of a warrant to the
university. As a result of this amendment, we granted the university a warrant
to purchase 340,000 shares of our common stock at an exercise price of $10.00
per share that expires on February 16, 2007. Upon the date of the first
commercial sale of FluMist, if 1.25 percent of the common stock then outstanding
exceeds 340,000 shares, we will issue an additional warrant on the same terms,
allowing the university to purchase a number of shares equal to the difference
between 340,000 shares and 1.25 percent of the common stock outstanding. As of
December 15, 2000, the warrant was exercisable with respect to the 340,000
shares, but had not been exercised.
On May 8, 2000, we entered into a settlement agreement with ARCH
Development Corporation, or ARCH, pursuant to which we issued a warrant to
purchase 14,077 shares of our common stock at an
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exercise price of $23.00 per share that expires on June 23, 2005. As of December
15, 2000, the warrant was exercisable but had not been exercised.
On October 11, 2000, we granted Evans Vaccines Limited, a division of
PowderJect Pharmaceuticals Plc, or Evans Vaccines, six warrants to purchase a
total of 63,162 shares of our common stock at an exercise price of $47.50 per
share. These warrants expire annually at the rate of 10,527 shares per year on
October 10, 2001 through 2006. As of December 15, 2000, all warrants were
exercisable but none had been exercised.
On October 13, 2000, we issued to The Proctor and Gamble Company a warrant
for the purchase of 9,398 shares of common stock at an exercise price of $53.00
per share that expires on October 13, 2005. The warrant is not currently
exercisable.
ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW AND CHARTER PROVISIONS
We are subject to Section 203 of the Delaware General Corporation Law. In
general, the statute prohibits a publicly held Delaware corporation from
engaging in any business combination with any interested stockholder for a
period of three years following the date that the stockholder became an
interested stockholder unless:
- prior to the date, the board of directors of the corporation approved
either the business combination or the transaction that resulted in the
stockholder becoming an interested stockholder;
- upon consummation of the transaction that resulted in the stockholder's
becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding those shares owned by persons who
are directors and also officers, and employee stock plans in which
employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer; or
- on or subsequent to the date, the business combination is approved by the
board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least two-thirds of the outstanding voting stock of that interested
stockholder.
Section 203 defines "business combination" to include:
- any merger or consolidation involving the corporation and the interested
stockholder;
- any sale, transfer, pledge or other disposition involving the interested
stockholder of 10 percent or more of the assets of the corporation;
- subject to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder; or
- the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In general, Section 203 defines an interested stockholder as any entity or
person beneficially owning 15 percent or more of the outstanding voting stock of
the corporation and any entity or person affiliated with or controlling or
controlled by the entity or person.
Our bylaws provide that candidates for director may be nominated only by
the board of directors or by a stockholder who gives written notice to us no
later than 60 days prior nor earlier than 90 days prior to the first anniversary
of the last annual meeting of stockholders. The board may consist of one or more
members to be determined from time to time by the board. The board currently
consists of eight members divided into three different classes. As a result,
only one class of directors will be elected at each annual meeting of
stockholders of our company, with the other classes continuing for the remainder
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of their respective terms. Between stockholder meetings, the board may appoint
new directors to fill vacancies or newly created directorships.
Our certificate of incorporation requires that any action required or
permitted to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and may not be effected by a consent
in writing. Our certificate of incorporation also provides that the authorized
number of directors may be changed only by resolution of the board of directors.
Delaware law and these charter provisions may have the effect of deterring
hostile takeovers or delaying changes in control or our management, which could
depress the market price of our common stock.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Delaware Law permits, and our Certificate of Incorporation contains,
provisions eliminating a director's personal liability for monetary damages
resulting from a breach of fiduciary duty, except in certain circumstances
involving wrongful acts, such as (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derives an improper personal
benefit. These provisions do not limit or eliminate our rights or any
stockholder's rights to seek non-monetary relief, such as an injunction or
rescission, in the event of a breach of director's fiduciary duty. These
provisions will not alter a director's liability under federal securities laws.
Our Certificate of Incorporation also contains provisions indemnifying our
directors and officers to the fullest extent permitted by Delaware General
Corporation Law. We believe that these provisions will assist us in attracting
and retaining qualified individuals to serve as our directors.
TRANSFER AGENT
The transfer agent and registrar for our common stock is Boston Equiserve.
Its telephone number is (781) 575-2508.
PLAN OF DISTRIBUTION
We may sell the securities separately or together:
- through one or more underwriters or dealers in a public offering and sale
by them,
- directly to investors, or
- through agents.
We may sell the securities from time to time in one or more transactions at
a fixed price or prices, which may be changed from time to time:
- at market prices prevailing at the times of sale,
- at prices related to such prevailing market prices, or
- at negotiated prices.
We will describe the method of distribution of the securities in the
prospectus supplement.
Underwriters, dealers or agents may receive compensation in the form of
discounts, concessions or commissions from us or our purchasers (as their agents
in connection with the sale of securities). These underwriters, dealers or
agents may be considered to be underwriters under the Securities Act. As a
result, discounts, commissions, or profits on resale received by the
underwriters, dealers or agents may be treated as underwriting discounts and
commissions. The prospectus supplement will identify any such underwriter,
dealer or agent, and describe any compensation received by them from us. Any
initial public
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offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
Underwriters, dealers and agents may be entitled to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments made by the underwriters,
dealers or agents, under agreements between us and the underwriters, dealers and
agents.
We may grant underwriters who participate in the distribution of securities
an option to purchase additional securities to cover over-allotments, if any, in
connection with the distribution.
All debt securities will be new issues of securities with no established
trading market. Underwriters involved in the public offering and sale of debt
securities may make a market in the debt securities. However, they are not
obligated to make a market and may discontinue market making activity at any
time. No assurance can be given as to the liquidity of the trading market for
any debt securities.
Underwriters or agents and their associates may be customers of, engage in
transactions with or perform services for us in the ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the securities offered in this prospectus
will be passed upon for Aviron by Latham & Watkins, Menlo Park, California. Alan
C. Mendelson, one of our Directors and a partner of Latham & Watkins, owns 2,007
shares of our common stock.
EXPERTS
Ernst & Young LLP, independent auditors have audited our financial
statements included in our Annual Report on Form 10-K/A for the year ended
December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports,
proxy statements and other information with the Securities and Exchange
Commission, or the SEC. You may read and copy these reports, proxy statements
and other information at the SEC's public reference rooms at 450 Fifth Street,
N.W., Washington, D.C., 20549, as well as at the SEC's regional offices at 500
West Madison Street, Suite 1400, Chicago, Illinois, 60661, and at Seven World
Trade Center, New York, New York, 10048. You can request copies of these
documents by writing to the SEC and paying a fee for the copying cost. Please
call the SEC at 1-800-SEC-0330 for more information about the operation of the
public reference rooms. Our SEC filings are also available at the SEC's Web site
at "http://www.sec.gov". In addition, you can read and copy our SEC filings at
the office of the National Association of Securities Dealers, Inc. at 1735 K
Street, Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. Further, all
filings we make under the Securities Exchange Act after the date of the initial
registration statement and prior to effectiveness of the registration statement
shall be deemed to be incorporated by reference into this prospectus. We
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incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934:
1. Our Annual Report on Form 10-K for the year ended December 31,
1999, filed with the SEC on March 8, 2000, and amended by a Form 10-K/A
filed with the SEC on April 3, 2000 and April 28, 2000;
2. Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000, June 30, 2000 and September 30, 2000, filed with the SEC on May 15,
2000, August 11, 2000 and November 14, 2000;
3. Our Current Reports on Form 8-K dated January 11, 2000, June 12,
2000, October 10, 2000, and October 31, 2000, filed with the SEC on January
14, 2000, June 13, 2000, October 19, 2000 and November 2, 2000.
We will provide to you at no cost a copy of any and all of the information
incorporated by reference into the registration statement of which this
prospectus is a part. You may make a request for copies of this information in
writing or by telephone. Requests should be directed to:
Aviron
Attention: Investor Relations
297 North Bernardo Avenue
Mountain View, CA 94043
(650) 919-6500
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 105,600
Legal Fees and Expenses..................................... 550,000
Accountants' Fees and Expenses.............................. 250,000
Printing Costs.............................................. 215,000
Miscellaneous............................................... 29,400
----------
Total..................................................... $1,150,000
==========
</TABLE>
The foregoing items, except for the Securities and Exchange Commission
Registration Fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, Aviron 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.
Aviron's certificate of incorporation and by-laws include provisions to (1)
eliminate the personal liability of its directors for monetary damages resulting
from breaches of their fiduciary duty to the extent permitted by Section
102(b)(7) of the General Corporation Law of Delaware and (2) require Aviron to
indemnify its directors and officers to the fullest extent permitted by Section
145 of the Delaware Law, including circumstances in which indemnification is
otherwise discretionary. Pursuant to Section 145 of the Delaware Law, a
corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses incurred by them in
connection with any suit to which they are, or are threatened to be made, a
party by reason of their serving in such positions so long as they acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interest of the corporation, and with respect to any criminal action, they
had no reasonable cause to believe their conduct was unlawful. Aviron believes
that these provisions are necessary to attract and retain qualified persons as
directors and officers. 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 directors' duty of loyalty to Aviron, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of Aviron or its stockholders, for any transaction from which the
director derived an improper personal benefit, for acts or omissions involving a
reckless disregard for the directors' duty to Aviron or its stockholders when
the director was aware or should have been aware of a risk of serious injury to
Aviron or its stockholders, for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
Aviron or its stockholders, for improper transactions between the director and
Aviron and for improper distributions to stockholders and loans to directors and
officers. The provision also does not affect a director's responsibilities under
any other law, such as the federal securities law or state or federal
environmental laws.
Aviron has entered into indemnity agreements with each of its directors and
executive officers that require Aviron to indemnify such persons against
expenses, judgments, fines, settlements and other amounts incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director or an executive officer of Aviron
or any of its affiliated enterprises, provided such person acted in good faith
and in a manner such persons reasonably believed to be in, or not opposed
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to, the best interests of Aviron and, with respect to any criminal proceeding,
has no reasonable cause to believe his conduct was unlawful. The indemnification
agreements also set forth procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of Aviron as to which indemnification is being sought.
Aviron has an insurance policy covering the officers and directors of
Aviron with respect to certain liabilities, including liabilities arising under
the Securities Act or otherwise.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF DOCUMENT
----------- -----------------------
<S> <C>
1.1* Underwriting Agreement.
4.2 Specimen Stock Certificate.(1)
4.8 Investors Rights Agreement, dated July 18, 1995, among
Aviron and the investors named therein.(2)
4.11 Common Stock Purchase Agreement, dated as of December 16,
1999, between Aviron and American Home Products
Corporation.(2)
4.12 Common Stock Purchase Agreement, dated as of December 30,
1999, between Aviron and American Home Products
Corporation.(2)
4.13 Common Stock Purchase Agreement, dated as of February 3,
2000, between Aviron and American Home Products
Corporation.(2)
4.14 Warrant for Common Stock, issued to the University of
Michigan.(3)
4.15 Common Stock Purchase Agreement, dated as of April 5, 2000,
between Aviron and American Home Products Corporation.(4)
4.16 Registration Rights Agreement, dated October 10, 2000, by
and between Aviron and Evans Vaccines Limited.(5)
4.17 Warrant for Common Stock, issued to ARCH Development
Corporation.(6)
4.18 Warrant for Common Stock, issued to The Procter & Gamble
Company.(7)
4.19 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.20 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.21 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.22 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.23 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.24 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.25 Form of senior indenture to be entered into between Aviron
and a trustee to be named.
4.26 Form of subordinated indenture to be entered into between
Aviron and a trustee to be named.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins. Reference is made to Exhibit
5.1.
24.1 Power of Attorney. See signature page.
25.1* Statement of Eligibility of Trustee under the senior
indenture.
25.2* Statement of Eligibility of Trustee under the subordinated
indenture.
</TABLE>
-------------------------
* To be filed by an amendment or by a report on Form 8-K pursuant to section
601 of Regulation S-K.
(1) Incorporated by reference to the correspondingly numbered exhibit to our
Registration Statement on Form S-1, File No. 333-05209, Filed June 5, 1996,
as amended.
(2) Incorporated by reference to the correspondingly numbered exhibit to our
Annual Report on Form 10-K for the year ended December 31, 1999, File No.
0-20815, Filed March 8, 2000.
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(3) Incorporated by reference to the correspondingly numbered exhibit to our
Annual Report on Form 10-K for the year ended December 31, 1999, File No.
0-20815, filed March 8, 2000.
(4) Incorporated by reference to the correspondingly numbered exhibit to our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, File No.
0-20815, Filed May 15, 2000.
(5) Incorporated by reference to the correspondingly numbered exhibit to our
Registration Statement on Form S-3, File No. 333-45072, Filed September 1,
2000, as amended.
(6) Incorporated by reference to the correspondingly numbered exhibit to our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000, File No.
0-20815, Filed August 11, 2000.
(7) Incorporated by reference to the correspondingly numbered exhibit to our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2000, File
No. 0-20815, Filed November 14, 2000.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes:
(1) 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
of 1933; (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,
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) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) 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.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) of Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
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registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. The
undersigned registrant undertakes that; (1) for purpose of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of the registration statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of the registration statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Mountain View, County of Santa Clara, State of
California, on December 18, 2000.
AVIRON
/s/ C. BOYD CLARKE
--------------------------------------
Name: C. Boyd Clarke
Title: President, Chief Executive
Officer
and Director
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSON BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints C. Boyd Clarke and Fred Kurland, his or her true
and lawful agent, proxy and attorney-in-fact, each acting alone, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and in any and all capacities, to (1) act on, sign and file
with the Securities and Exchange Commission any and all amendments (including
post-effective amendments) to this registration statement together with all
schedules and exhibits thereto and any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together
with all schedules and exhibits thereto, (2) act on, sign and file such
certificates, instruments, agreements and other documents as may be necessary or
appropriate in connection therewith, (3) act on and file any supplement to any
prospectus included in this registration statement or any such amendment or any
subsequent registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and (4) take any and all actions which may
be necessary or appropriate to be done, as fully for all intents and purposes as
he or she might or could do in person, hereby approving, ratifying and
confirming all that such agent, proxy and attorney-in-fact or any of his
substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the securities act of 1933, as amended,
this registration statement on form S-3 has been signed below by the following
persons in the capacities and on the dates indicated.
/s/ C. BOYD CLARKE
--------------------------------------
Name: C. Boyd Clarke
Title: President, Chief Executive
Officer
and Director
(Principal Executive Officer)
Date: December 18, 2000
II-5
<PAGE> 24
/s/ FRED KURLAND
--------------------------------------
Name: Fred Kurland
Title: Senior Vice President and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
Date: December 18, 2000
/s/ J. LEIGHTON READ, M.D.
--------------------------------------
Name: J. Leighton Read, M.D.
Title: Chairman of the Board
Date: December 18, 2000
/s/ R. GORDON DOUGLAS, JR., M.D.
--------------------------------------
Name: R. Gordon Douglas, Jr., M.D.
Title: Director
Date: December 18, 2000
/s/ DENNIS M. FENTON, PH.D.
--------------------------------------
Name: Dennis M. Fenton, Ph.D.
Title: Director
Date: December 18, 2000
/s/ WAYNE T. HOCKMEYER, PH.D.
--------------------------------------
Name: Wayne T. Hockmeyer, Ph.D.
Title: Director
Date: December 18, 2000
/s/ PAUL H. KLINGENSTEIN
--------------------------------------
Name: Paul H. Klingenstein
Title: Director
Date: December 18, 2000
/s/ ALAN C. MENDELSON
--------------------------------------
Name: Alan C. Mendelson
Title: Director
Date: December 18, 2000
/s/ BERNARD ROIZMAN, SC.D.
--------------------------------------
Name: Bernard Roizman, Sc.D.
Title: Director
Date: December 18, 2000
II-6
<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF DOCUMENT
------- -----------------------
<S> <C>
1.1* Underwriting Agreement.
4.2 Specimen Stock Certificate.(1)
4.8 Investors Rights Agreement, dated July 18, 1995, among
Aviron and the investors named therein.(2)
4.11 Common Stock Purchase Agreement, dated as of December 16,
1999, between Aviron and American Home Products
Corporation.(2)
4.12 Common Stock Purchase Agreement, dated as of December 30,
1999, between Aviron and American Home Products
Corporation.(2)
4.13 Common Stock Purchase Agreement, dated as of February 3,
2000, between Aviron and American Home Products
Corporation.(2)
4.14 Warrant for Common Stock, issued to the University of
Michigan.(3)
4.15 Common Stock Purchase Agreement, dated as of April 5, 2000,
between Aviron and American Home Products Corporation.(4)
4.16 Registration Rights Agreement, dated October 10, 2000, by
and between Aviron and Evans Vaccines Limited.(5)
4.17 Warrant for Common Stock, issued to ARCH Development
Corporation.(6)
4.18 Warrant for Common Stock, issued to The Procter & Gamble
Company.(7)
4.19 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.20 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.21 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.22 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.23 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.24 Warrant for Common Stock, issued to Evans Vaccines Limited.
4.25 Form of senior indenture to be entered into between Aviron
and a trustee to be named.
4.26 Form of subordinated indenture to be entered into between
Aviron and a trustee to be named.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins. Reference is made to Exhibit
5.1.
24.1 Power of Attorney. See signature page.
25.1* Statement of Eligibility of Trustee under the senior
indenture.
25.2* Statement of Eligibility of Trustee under the subordinated
indenture.
</TABLE>
-------------------------
* To be filed by an amendment or by a report on Form 8-K pursuant to section
601 of Regulation S-K.
(1) Incorporated by reference to the correspondingly numbered exhibit to our
Registration Statement on Form S-1, File No. 333-05209, Filed June 5, 1996,
as amended.
(2) Incorporated by reference to the correspondingly numbered exhibit to our
Annual Report on Form 10-K for the year ended December 31, 1999, File No.
0-20815, Filed March 8, 2000.
(3) Incorporated by reference to the correspondingly numbered exhibit to our
Annual Report on Form 10-K for the year ended December 31, 1999, File No.
0-20815, filed March 8, 2000.
(4) Incorporated by reference to the correspondingly numbered exhibit to our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, File No.
0-20815, Filed May 15, 2000.
(5) Incorporated by reference to the correspondingly numbered exhibit to our
Registration Statement on Form S-3, File No. 333-45072, Filed September 1,
2000, as amended.
(6) Incorporated by reference to the correspondingly numbered exhibit to our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000, File No.
0-20815, Filed August 11, 2000.
(7) Incorporated by reference to the correspondingly numbered exhibit to our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2000, File
No. 0-20815, Filed November 14, 2000.
