-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IrOQ5aurHygiu3Sl8YMkX4c3BxpmA6iRmodwLPbrgL0l4lCBXOaLaCsFdm3MK/jk 2dsJYweEg3LqRL0LEhtVWg== 0001095811-01-000612.txt : 20010205 0001095811-01-000612.hdr.sgml : 20010205 ACCESSION NUMBER: 0001095811-01-000612 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 3 333-52028 FILED AS OF DATE: 20010201 EFFECTIVENESS DATE: 20010201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AVIRON CENTRAL INDEX KEY: 0000949173 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 770309686 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: SEC FILE NUMBER: 333-54828 FILM NUMBER: 1522050 BUSINESS ADDRESS: STREET 1: 297 N BERNARDO AVE CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 BUSINESS PHONE: 6509196500 MAIL ADDRESS: STREET 1: 297 NORTH BERNARDO AVE CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 S-3MEF 1 f68984ors-3mef.txt FORM S-3MEF 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 1, 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) DELAWARE 77-0309686 (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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. [X] 333-52028 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 - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS PROPOSED MAXIMUM AGGREGATE AMOUNT OF OF SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------- Debt Securities............................... -- -- - ---------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.001 per share(3)... -- -- - ---------------------------------------------------------------------------------------------------------------- Total......................................... $58,000,000 $14,500 - ---------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------
(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. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 EXPLANATORY NOTE This registration statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and includes the registration statement facing page, this page, the signature pages, an exhibit index, an accountants' consent and an opinion of counsel. Pursuant to Rule 462(b), the contents of our registration statement on Form S-3 (File No. 333-52028), including the exhibits thereto (the "Initial Registration Statement"), are incorporated by reference into this registration statement. This registration statement covers the registration of an additional $58,000,000 aggregate offering price of our common stock and debt securities for sale in the offering referred to in the Initial Registration Statement. Such additional shares of common stock and debt securities are being sold by us. 3 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 February 1, 2001. AVIRON By: /s/ C. BOYD CLARKE ---------------------------------- C. Boyd Clarke Title: President, Chief Executive Officer and Chairman of the Board Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ------------------------------------------ ------------------------------------ ---------------- /s/ C. BOYD CLARKE President, Chief Executive Officer February 1, 2001 - ------------------------------------------ and Chairman of the Board (Principal C. Boyd Clarke executive officer) /s/ FRED KURLAND Senior Vice President and Chief February 1, 2001 - ------------------------------------------ Financial Officer (Principal Fred Kurland financial and accounting officer) * Director February 1, 2001 - ------------------------------------------ R. Gordon Douglas, Jr., M.D. * Director February 1, 2001 - ------------------------------------------ Dennis M. Fenton, Ph.D. * Director February 1, 2001 - ------------------------------------------ Wayne T. Hockmeyer, Ph.D. * Director February 1, 2001 - ------------------------------------------ Paul H. Klingenstein * Director February 1, 2001 - ------------------------------------------ Alan C. Mendelson * Director February 1, 2001 - ------------------------------------------ J. Leighton Read, M.D. * Director February 1, 2001 - ------------------------------------------ Bernard Roizman, Sc.D. *By: /s/ C. BOYD CLARKE ---------------------------------------- C. Boyd Clarke Attorney-in-Fact
4 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF DOCUMENT - ------- ----------------------- 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.
- ------------------------- * Incorporated by reference to the correspondingly numbered exhibit to our Registration Statement on Form S-3, File No. 333-52028, Filed December 18, 2000. EX-5.1 2 f68984orex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 [LATHAM & WATKINS LETTERHEAD] February 1, 2001 Aviron 297 North Bernardo Avenue Mountain View, CA 94043 Re: $58,000,000 Aggregate Offering Price of Securities of Aviron Ladies and Gentlemen: In connection with the registration statement on Form S-3 (the "Registration Statement") filed on February 1, 2001 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), which registration statement incorporates by reference the contents of the registration statement (file no. 333-52028) filed by Aviron, a Delaware corporation (the "Company"), including the exhibits therewith (the "Initial Registration Statement"), you have requested our opinion with respect to the matters set forth below. You have provided us with a prospectus (the "Prospectus") which is a part of the Initial Registration Statement. The Prospectus provides that it will be supplemented in the future by one or more supplements to the Prospectus (each a "Prospectus Supplement"). In connection with the Registration Statement, the Prospectus as supplemented by various Prospectus Supplements will provide for the registration by the Company of up to $58,000,000 aggregate offering price of (i) one or more series of senior, senior subordinated or subordinated debt securities (the "Debt Securities") and/or (ii) shares of common stock, par value $0.001 per share (the "Common Stock"). The Debt Securities and Common Stock are collectively referred to herein as the "Securities." Any Debt Securities may be exchangeable and/or convertible into shares of Common Stock. The Debt Securities may be issued pursuant to the subordinated indenture, the form of which is attached as Exhibit 4.26 to the Initial Registration Statement (the "Subordinated Indenture"), or the senior indenture, the form of which is attached as Exhibit 4.25 to the Initial Registration Statement (the "Senior Indenture," and, together with the Subordinated Indenture, each an "Indenture" and collectively, the "Indentures"), in each case between the Company and a trustee (the "Trustee"). In our capacity as your special counsel in connection with the Registration Statement, we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization and issuance of the Securities, and for the purposes of this opinion, have assumed that such proceedings will be timely completed in the manner presently proposed. In addition, we have made such legal and factual examinations and inquiries, including an examination of originals and copies certified or otherwise identified to our satisfaction of such documents, corporate records and instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies. 2 We have been furnished with, and with your consent have exclusively relied upon, certificates of officers of the Company with respect to certain factual matters. In addition, we have obtained and relied upon such certificates and assurances from public officials as we have deemed necessary. For purposes of this opinion, we have assumed that proper proceedings in connection with the authorization and issuance of the Securities will be timely and properly completed, in accordance with all requirements of applicable federal and New York laws and the General Corporation Law of the State of Delaware (the "Delaware GCL") in the manner presently proposed. We are opining herein as to the effect on the subject transaction only of the federal securities laws of the United States, the Delaware GCL, and with respect to the opinions set forth in paragraphs 1 and 3 below, the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state. Subject to the foregoing and the other matters set forth herein, it is our opinion that as of the date hereof: 1. When (i) the Debt Securities have been duly established in accordance with the applicable Indenture (including, without limitation, the adoption by the Board of Directors of the Company of a resolution duly authorizing the issuance and delivery of the Debt Securities), duly authenticated by the Trustee and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms and provisions of the applicable Indenture and as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (ii) when the Registration Statement and any required post-effective amendment thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (iii) assuming that the terms of the Debt Securities as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (iv) assuming that the Debt Securities as executed and delivered do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (v) assuming that the Debt Securities as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, and (vi) assuming that the Debt Securities are then issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), the Debt Securities will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with the terms of the Debt Securities. 2. Assuming that (i) the terms of such shares as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), (ii) the Company has a sufficient number of authorized but unissued shares under the Company's Amended and Restated Certificate of Incorporation, as amended, at the time of issuance, (iii) such shares as executed and delivered do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, (iv) such shares as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company and (v) such shares are then issued and sold as contemplated in the Registration Statement, such shares of Common Stock (including, without limitation, any Common Stock duly issued upon the exchange or conversion of any shares of preferred stock of the Company that are exchangeable or convertible into Common Stock, upon the exercise of any warrants of the Company exercisable for Common Stock or upon the exchange or conversion of Debt Securities that are exchangeable or convertible into Common Stock) will be validly issued, fully paid and nonassessable. 2 3 3. When (i) the Registration Statement and any required post-effective amendment thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (ii) when the Debt Securities have been duly executed and delivered by all parties thereto, and (iii) assuming that the applicable Indenture does not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (iv) assuming that the applicable Indenture complies with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, and (v) assuming that the Debt Securities are then issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), the applicable Indenture will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with the terms of such Indenture. The opinions set forth in paragraphs 1 and 3 above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors; (ii) the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution is contrary to public policy; (iv) the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws; and (v) whether acceleration of Debt Securities may affect the collectibility of any portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon. We have not been requested to express and, with your knowledge and consent, do not render any opinion as to the applicability to the obligations of the Company under the Indentures and the Debt Securities of Section 548 of the United States Bankruptcy Code or applicable state law (including, without limitation, Article 10 of the New York Debtor and Creditor Law) relating to fraudulent transfers and obligations. We assume for purposes of this opinion that the Company has been duly organized and is validly existing as a corporation under the laws of the State of Delaware and has the corporate power and authority to issue and sell the Securities; that the applicable Indenture has been duly authorized by all necessary corporate action by the Company; that the Trustee for the applicable Indenture is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the Trustee is duly qualified to engage in the activities contemplated by the applicable Indenture; that the applicable Indenture has been duly authorized, executed and delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms; that the Trustee is in compliance, generally and with respect to acting as Trustee under the applicable Indenture, with all applicable laws and regulations; and that the Trustee has the requisite organizational and legal power and authority to perform its obligations under the applicable Indenture. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Prospectus included therein. This opinion is rendered only to you and is solely for your benefit in connection with the transactions covered hereby. This opinion may not be relied upon by you for any other purpose, or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent. Very truly yours, /s/ Latham & Watkins ---------------------- 3 EX-23.1 3 f68984orex23-1.txt EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference, in this Registration Statement of Aviron on Form S-3 for the registration of $58,000,000 of its securities, of the reference to our firm under the caption "Experts" included in the Registration Statement (Form S-3 No. 333-52028) and to the incorporation by reference in this Registration Statement of our report dated February 17, 2000, with respect to the financial statements of Aviron included in its Annual Report (Form 10-K/A) for the year ended December 31, 1999, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Palo Alto, California January 29, 2001 -----END PRIVACY-ENHANCED MESSAGE-----