<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 9, 2001
REGISTRATION NO. 333-
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AVIRON
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 77-0309686
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
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, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
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 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, as amended, 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 to be 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 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> <C> <C>
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE REGISTRATION FEE
-----------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par
value(2)..................... 200,000 $51.42 $10,284,000 $2,571
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 on the basis of the
high and low prices of Aviron's common stock on January 8, 2001 as quoted on
the Nasdaq National Market. It is not known how many shares will be
purchased under this Registration Statement or at what price shares will be
purchased.
(2) Includes rights 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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 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.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THE SELLING STOCKHOLDERS 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 THE SELLING STOCKHOLDERS ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Filed pursuant to Rule 424(b)(3)
Registration No. 333-45072
SUBJECT TO COMPLETION, DATED JANUARY 9, 2001
PROSPECTUS
200,000 SHARES
LOGO
COMMON STOCK
-------------------------
These shares of common stock are being offered by the selling stockholders
identified in this prospectus. The selling stockholders may sell the shares of
common stock in a number of different ways and at varying prices. We provide
more information about how they may sell their shares in the section entitled
"Plan of Distribution" beginning on page 3.
We are not selling any shares of our common stock under this prospectus and will
not receive any portion of the proceeds from the sale of these shares.
-------------------------
OUR COMMON STOCK IS QUOTED ON THE NASDAQ NATIONAL MARKET UNDER THE SYMBOL
"AVIR". ON JANUARY 8, 2001, THE LAST REPORTED SALE PRICE FOR OUR COMMON STOCK ON
THE NASDAQ NATIONAL MARKET WAS $50 7/16 PER SHARE.
-------------------------
INVESTING IN OUR 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 and complete. Any representation to the contrary is a
criminal offense.
, 2001
<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
Selling Stockholders........................................ 2
Plan of Distribution........................................ 3
Legal Matters............................................... 4
Experts..................................................... 4
Where You Can Find More Information......................... 5
</TABLE>
-------------------------
You should rely only on the information we have provided or incorporated by
reference in this prospectus or any prospectus supplement. Neither we nor the
selling stockholders have authorized anyone to provide you with additional or
different information. The selling stockholders 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.
i
<PAGE> 4
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, the selling stockholders may,
over the next two years, offer common stock referenced in this prospectus in one
or more offerings up to a total of 200,000 shares. Each time the selling
stockholders use this prospectus to offer common stock, the selling stockholders
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 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," 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.
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.
1
<PAGE> 5
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of common
stock offered by the selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth the names of the selling stockholders, the
number of shares of our common stock that they beneficially own as of December
31, 2000 and the number of shares which may be offered pursuant to this
prospectus. Beneficial ownership is determined in accordance with Rule 13d-3
under the Securities Exchange Act of 1934. In computing the number of shares
beneficially owned by a person and the percentage ownership of that person,
shares of common stock subject to options held by that person that are currently
exercisable or exercisable within 60 days of December 31, 2000 are deemed
outstanding. These shares, however, are not deemed outstanding for the purposes
of computing the percentage ownership of each other person. Percentage ownership
is based on 25,181,051 shares of common stock outstanding as of December 31,
2000.
Except as indicated in the footnotes to this table and pursuant to
applicable community property laws, each stockholder named in the table has sole
voting and investment power with respect to the shares shown as beneficially
owned by them. The selling stockholders may sell all, some or none of the common
stock being offered.
Unless otherwise indicated, the address for each of the individuals listed
in the table is c/o Aviron, 297 North Bernardo Avenue, Mountain View, California
94043.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR OWNED SUBSEQUENT
TO THE OFFERING SHARES OFFERED TO THE OFFERING(3)
-------------------- BY THIS --------------------
NAME AND ADDRESS OF SELLING STOCKHOLDER SHARES PERCENT PROSPECTUS SHARES PERCENT
--------------------------------------- -------- -------- -------------- -------- --------
<S> <C> <C> <C> <C> <C>
J. Leighton Read, M.D.(1).............. 495,885 1.97% 150,000 345,885 1.37%
Bernard Roizman, Sc.D.(2).............. 194,000 * 50,000 144,000 *
</TABLE>
-------------------------
* Less than 1% of the outstanding shares of common stock.
(1) Includes 226,000 shares issuable upon exercise of options that are currently
exercisable, or will be exercisable within 60 days of December 31, 2000.
Also includes an aggregate of 32,000 shares held by The Travis Read 1993
Trust and The Haley Read 1993 Trust of which Robert Fitzwilson is the
trustee. Dr. Read disclaims beneficial ownership of the shares held by the
trusts.
(2) Includes 19,000 shares issuable upon exercise of options that are currently
exercisable, or will be exercisable within 60 days of December 31, 2000.
(3) Assumes the sale of all shares offered hereby.
One of the selling stockholders, J. Leighton Read, M.D., was a founder of
Aviron, our Chairman from 1992 until January 2001, Chief Executive Officer from
1992 until 1999 and Chief Financial Officer from 1992 until 1996. The other
selling stockholder, Bernard Roizman, Sc.D., has been a member of our board of
directors since 1992 and is also a member of our Scientific Advisory Board.
We will pay the registration and filing fees, printing expenses, listing
fees, blue sky fees, if any, and fees and disbursements of our counsel in
connection with this offering, but the selling stockholders will pay any
underwriting discounts, selling commissions and similar expenses relating to the
sale of the shares. In addition, we have agreed to indemnify the selling
stockholders against certain liabilities, including liabilities under the
Securities Act, in connection with this offering. The selling stockholders have
agreed to indemnify us and our directors and officers, as well as any person
that controls us, against certain liabilities, including liabilities under the
Securities Act. Insofar as indemnification for liabilities under the Securities
Act may be permitted to our directors or officers, or persons that control us,
we have
2
<PAGE> 6
been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
PLAN OF DISTRIBUTION
The selling stockholders, or, subject to applicable law, their pledgees,
donees, distributees, transferees or other successors in interest, may sell
shares from time to time in public transactions, on or off the Nasdaq National
Market, or private transactions, at prevailing market prices or at privately
negotiated prices, including but not limited to, one or any combination of the
following types of transactions:
- ordinary brokers' transactions;
- transactions involving cross or block trades or otherwise on the Nasdaq
National Market;
- purchases by brokers, dealers or underwriters as principal and resale by
these purchasers for their own accounts pursuant to this prospectus;
- "at the market," to or through market makers, or into an existing market
for our common stock;
- in other ways not involving market makers or established trading markets,
including direct sales to purchasers or sales effected through agents;
- through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise);
- in privately negotiated transactions; or
- to cover short sales.
The selling stockholders may sell their shares either alone or in
conjunction with one or more underwritten public offerings or non-underwritten
public or private offerings by us or other stockholders of our common stock or
other of our debt or equity securities.
In effecting sales, brokers or dealers engaged by the selling stockholders
may arrange for other brokers or dealers to participate in the resales. The
selling stockholders may enter into hedging transactions with broker-dealers,
and in connection with those transactions, broker-dealers may engage in short
sales of the shares. The selling stockholders also may sell shares short and
deliver the shares to close out such short positions. The selling stockholders
also may enter into option or other transactions with broker-dealers that
require the delivery to the broker-dealer of the shares, which the broker-dealer
may resell pursuant to this prospectus. The selling stockholders also may pledge
the shares to a broker or dealer. Upon a default, the broker or dealer may
effect sales of the pledged shares pursuant to this prospectus.
Brokers, dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders in amounts to be
negotiated in connection with the sale. The selling stockholders and any
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commission, discount or concession these "underwriters" receive may be deemed to
be underwriting compensation.
To the extent required, the following information will be set forth in a
supplement to this prospectus:
- information as to whether underwriters who the selling stockholders may
select, or any other broker-dealer, is acting as principal or agent for
the selling stockholders;
- the compensation to be received by underwriters that the selling
stockholders may select or by any broker-dealer acting as principal or
agent for the selling stockholder; and
- the compensation to be paid to other broker-dealers, in the event the
compensation of such other broker-dealers is in excess of usual and
customary commissions.
3
<PAGE> 7
Any dealer or broker participating in any distribution of the shares may be
required to deliver a copy of this prospectus, including a prospectus
supplement, if any, to any person who purchases any of the shares from or
through this dealer or broker.
We have advised the selling stockholders that they are required to comply
with Regulation M promulgated under the Securities Exchange Act during such time
as they may be engaged in a distribution of the shares. With some exceptions,
Regulation M precludes any selling stockholders, any affiliated purchasers and
any broker-dealer or other person who participates in such distribution from
bidding for or purchasing, or attempting to induce any person to bid for or
purchase any security that is the subject of the distribution until the entire
distribution is complete. Regulation M also prohibits any bids or purchases made
in order to stabilize the price of a security in connection with the
distribution of that security. All of the foregoing may affect the marketability
of the common stock.
We will not receive any of the proceeds from the selling stockholders' sale
of our common stock.
LEGAL MATTERS
Latham & Watkins of Menlo Park, California will issue an opinion about
certain legal matters with respect to the common stock offered in this
prospectus. Alan C. Mendelson, one of our directors and a partner of Latham &
Watkins, owns 1,943 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.
4
<PAGE> 8
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
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, respectively;
3. Our Current Report on Form 8-K dated January 11, 2000, filed with the
SEC on January 14, 2000.
4. Our Current Report on Form 8-K dated June 12, 2000, filed with the SEC
on June 13, 2000;
5. Our Current Report on Form 8-K dated October 19, 2000, filed with the
SEC on October 19, 2000;
6. Our Current Report on Form 8-K dated November 2, 2000, filed with the
SEC on November 2, 2000;
7. Our Current Report on Form 8-K dated January 4, 2001, filed with the SEC
on January 4, 2001.
8. Our Current Report on Form 8-K dated January 9, 2001, filed with the SEC
on January 9, 2001; and
9. The description of our common stock set forth in our Registration
Statement on Form 8-A, filed with the SEC on July 16, 1996.
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
5
<PAGE> 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 2,571
Legal Fees and Expenses..................................... 25,000
Accountants' Fees and Expenses.............................. 15,000
Miscellaneous............................................... 15,000
-------
Total..................................................... $57,571
=======
</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 to,
the best interests of Aviron and, with respect to any criminal proceeding, has
no reasonable cause to
II-1
<PAGE> 10
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 a liability policy covering the officers and directors of Aviron
which includes liabilities arising under the Securities Act or otherwise.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1* Underwriting Agreement.
4.2 Specimen Stock Certificate.(1)
4.8 Investors Rights Agreement, dated July 18, 1995, among the
Company and the investors named therein.(1)
4.11 Common Stock Purchase Agreement, dated as of December 16,
1999, between the Company and American Home Products
Corporation.(2)
4.12 Common Stock Purchase Agreement, dated as of December 30,
1999, between the Company and American Home Products
Corporation.(2)
4.13 Common Stock Purchase Agreement, dated as of February 3,
2000, between the Company and American Home Products
Corporation.(2)
4.14 Warrant for Common Stock issued to the University of
Michigan.(2)
4.15 Common Stock Purchase Agreement, dated as of April 5, 2000,
between Aviron and American Home Products Corporation.(3)
4.16 Registration Rights Agreement, dated October 10, 2000, by
and between Aviron and Evans Vaccines Limited.(4)
4.17 Warrant for Common Stock, issued to ARCH Development
Corporation.(5)
4.18 Warrant for Common Stock, issued to The Procter & Gamble
Company.(6)
4.19 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.20 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.21 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.22 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.23 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.24 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
5.1 Opinion of Latham & Watkins.
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.
</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
Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, File No.
0-20815, Filed May 15, 2000.
(4) 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.
II-2
<PAGE> 11
(5) 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.
(6) 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.
(7) Incorporated by reference to the correspondingly numbered exhibit to our
Registration Statement on Form S-3, File No. 333-52028, Filed December 18,
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
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
II-3
<PAGE> 12
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.
II-4
<PAGE> 13
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 January 9, 2001.
AVIRON
By: /s/ C. BOYD CLARKE
------------------------------------
C. Boyd Clarke
President, Chief Executive Officer
and
Chairman of the Board
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ C. BOYD CLARKE President, Chief Executive Officer January 9, 2001
----------------------------------- and Chairman of the Board
C. Boyd Clarke (Principal Executive Officer)
/s/ FRED KURLAND Senior Vice President and January 9, 2001
----------------------------------- Chief Financial Officer
Fred Kurland (Principal Financial and
Accounting Officer)
/s/ R. GORDON DOUGLAS, JR., M.D. Director January 9, 2001
-----------------------------------
R. Gordon Douglas, Jr., M.D.
</TABLE>
II-5
<PAGE> 14
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ DENNIS M. FENTON, PH.D. Director January 9, 2001
-----------------------------------
Dennis M. Fenton, Ph.D.
/s/ WAYNE T. HOCKMEYER, PH.D. Director January 9, 2001
-----------------------------------
Wayne T. Hockmeyer, Ph.D.
/s/ PAUL H. KLINGENSTEIN Director January 9, 2001
-----------------------------------
Paul H. Klingenstein
/s/ ALAN C. MENDELSON Director January 9, 2001
-----------------------------------
Alan C. Mendelson
/s/ J. LEIGHTON READ, M.D. Director January 9, 2001
-----------------------------------
J. Leighton Read, M.D.
/s/ BERNARD ROIZMAN, SC.D. Director January 9, 2001
-----------------------------------
Bernard Roizman, Sc.D.
</TABLE>
II-6
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1* Underwriting Agreement.
4.2 Specimen Stock Certificate.(1)
4.8 Investors Rights Agreement, dated July 18, 1995, among the
Company and the investors named therein.(1)
4.11 Common Stock Purchase Agreement, dated as of December 16,
1999, between the Company and American Home Products
Corporation.(2)
4.12 Common Stock Purchase Agreement, dated as of December 30,
1999, between the Company and American Home Products
Corporation.(2)
4.13 Common Stock Purchase Agreement, dated as of February 3,
2000, between the Company and American Home Products
Corporation.(2)
4.14 Warrant for Common Stock issued to the University of
Michigan.(2)
4.15 Common Stock Purchase Agreement, dated as of April 5, 2000,
between Aviron and American Home Products Corporation.(3)
4.16 Registration Rights Agreement, dated October 10, 2000, by
and between Aviron and Evans Vaccines Limited.(4)
4.17 Warrant for Common Stock, issued to ARCH Development
Corporation.(5)
4.18 Warrant for Common Stock, issued to The Procter & Gamble
Company.(6)
4.19 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.20 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.21 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.22 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.23 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
4.24 Warrant for Common Stock, issued to Evans Vaccines
Limited.(7)
5.1 Opinion of Latham & Watkins.
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.
</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
Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, File No.
0-20815, Filed May 15, 2000.
(4) 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.
(5) 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.
(6) 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.
(7) Incorporated by reference to the correspondingly numbered exhibit to our
Registration Statement on Form S-3, File No. 333-52028, Filed December 18,
2000.
