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EXHIBIT 1.2
FORM OF DEBT UNDERWRITING AGREEMENT
$200,000,000
AVIRON
5-1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2008
UNDERWRITING AGREEMENT
February 1, 2001
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February 1, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Chase Securities Inc.
XX Xxxxx Securities Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
AVIRON, a Delaware corporation (the "COMPANY"), proposes to issue and
sell to the several Underwriters named in Schedule I hereto (the "UNDERWRITERS")
$200,000,000 principal amount of its 5-1/4% Convertible Subordinated Notes due
2008 (the "FIRM NOTES") to be issued pursuant to the provisions of an Indenture
to be dated as of February 7, 2001 (the "INDENTURE") between the Company and
HSBC Bank USA as Trustee (the "TRUSTEE"). The Company also proposes to issue and
sell to the several Underwriters not more than an additional $30,000,000
principal amount of its 5-1/4% Convertible Subordinated Notes due 2008 (the
"ADDITIONAL NOTES"), if and to the extent that you, as managers of the offering,
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such 5-1/4% Convertible Subordinated Notes due 2008 granted to the
Underwriters in Section 2 hereof. The Firm Notes and the Additional Notes are
hereinafter collectively referred to as the "NOTES." The Notes will be
convertible into shares of common stock of the Company, par value $0.001 per
share (the "UNDERLYING SECURITIES"). The shares of common stock, par value
$0.001 per share, of the Company are hereinafter referred to as the "COMMON
STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Notes and its Common Stock. The term "REGISTRATION STATEMENT" means such
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "BASE PROSPECTUS" means the prospectus included in
the Registration Statement. If the Company has filed or files an abbreviated
registration statement to register additional shares of common stock or debt
securities pursuant to Rule 462(b) (the "RULE 462 REGISTRATION STATEMENT") under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement.
The Company has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Notes pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"SECURITIES ACT").
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The term "PROSPECTUS" means the Base Prospectus together with the
Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means a preliminary
prospectus supplement specifically relating to the Notes together with the Base
Prospectus. As used herein, the terms "Base Prospectus," "Prospectus,"
"Registration Statement" and "preliminary prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms "SUPPLEMENT"
and "AMENDMENT" or "AMEND" as used in this Agreement shall include all documents
filed subsequent to the date of the Base Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), that are deemed to be incorporated by reference in the
Prospectus.
The Notes, which have been registered as debt securities under the
Registration Statement, shall have the terms set forth in the Base Prospectus
and the Prospectus Supplement.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) the Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth
in this paragraph do not apply to (A) statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of Eligibility
("Form T-1") under the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT").
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(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiary, taken
as a whole.
(d) Aviron UK Limited has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiary, taken as a whole; all of the issued shares of capital stock
of Aviron UK Limited have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding on the date hereof
have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Indenture related to the Notes has been duly qualified
under the Trust Indenture Act and has been duly authorized and, when
executed and delivered by the Company, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms
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of this Agreement will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Underlying Securities reserved for issuance upon
conversion of the Notes have been duly authorized and reserved and, when
issued and delivered upon conversion of the Notes in accordance with the
terms of the Indenture and the Notes, will be validly issued, fully paid
and non-assessable, and the issuance of the Underlying Securities will
not be subject to any preemptive or similar rights.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Notes will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or its subsidiary
that is material to the Company and its subsidiary, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or its subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture or the
Notes, except such as have been obtained under the Securities Act and
such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Notes.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiary, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or its
subsidiary is a party or to which any of the properties of the Company
or its subsidiary is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
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(n) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(o) The Company is not, and after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(p) The Company and its subsidiary (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiary, taken as a
whole.
(q) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiary, taken
as a whole.
(r) The Company and its subsidiary possess all consents,
approvals, orders, certificates, authorizations and permits issued by,
and have made all declarations and filings with, all appropriate
federal, state or foreign governmental or self-regulatory authorities
and all courts and other tribunals necessary to conduct their respective
businesses and to own, lease, license and use their respective
properties in the manner described in the Prospectus, except to the
extent that the failure to obtain, possess, or make a declaration or
filing would not have a material adverse effect on the Company and its
subsidiary, taken as a whole, and the Company and its subsidiary have
not received any notice of proceedings relating to the revocation or
modification of any such consent, approval, order, certificate,
authorization or permit that, singly or in the aggregate, if the subject
of any unfavorable decision, ruling or finding, or failure to obtain
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or file, would have a material adverse effect on the Company and its
subsidiary, taken as a whole, except as described in the Prospectus.
(s) The Company owns or possesses adequate licenses or other
rights to use all patents, copyrights, trademarks, service marks, trade
names, technology and know-how necessary to conduct its businesses in
the manner described in the Prospectus or could obtain such licenses or
rights on terms that would not have a material adverse effect on the
Company and its subsidiary, taken as a whole, and, except as disclosed
in the Prospectus, the Company has not received any notice of
infringement with respect to any patents, copyrights, trademarks,
service marks, trade names, technology or know-how which could
reasonably be expected to result in any material adverse effect on the
Company and its subsidiary, taken as a whole; and, except as disclosed
in the Prospectus, the discoveries, inventions, products or processes of
the Company referred to in the Prospectus do not, to the best knowledge
of the Company, infringe any patent or other intellectual property right
of any third party, or any discovery, invention, product or process that
is the object of a patent application filed by any third party known to
the Company, except for any such infringement which would not have a
material adverse effect on the Company and its subsidiary, taken as a
whole.
(t) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company except as
described in the Prospectus, all of which have been validly waived.
(u) The Company is not presently (a) in material violation of
its charter or bylaws, or (b) subject to any material order, writ or
decree applicable specifically to the Company of any court or
governmental agency or body having jurisdiction over the Company, or
over any of its properties or operations.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Firm Notes set forth in Schedule I
hereto opposite its name at 97.0% of their principal amount (the "PURCHASE
PRICE") plus accrued interest, if any, from February 7, 2001 to the date of
payment and delivery.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Notes, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to $30,000,000
principal
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amount of Additional Notes at the Purchase Price plus accrued interest, if any,
from February 7, 2001 to the date of payment and delivery. If you, on behalf of
the Underwriters, elect to exercise such option, you shall so notify the Company
in writing not later than 30 days after the date of this Agreement, which notice
shall specify the principal amount of Additional Notes to be purchased by the
Underwriters and the date on which such Additional Notes are to be purchased.
Such date may be the same as the Closing Date (as defined below) but not earlier
than the Closing Date nor later than ten business days after the date of such
notice. Additional Notes may be purchased as provided in Section 4 hereof solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Notes. If any Additional Notes are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the principal amount of
Additional Notes (subject to such adjustments to eliminate fractional securities
as you may determine) that bears the same proportion to the total principal
amount of Additional Notes to be purchased as the principal amount of Firm Notes
set forth in Schedule I hereto opposite the name of such Underwriter bears to
the total principal amount of Firm Notes.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus Supplement,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Notes to be sold hereunder or the issuance
of the underlying securities upon conversion of such notes, (B) the issuance by
the Company of shares of Common Stock upon the exercise of an option or a
warrant or the conversion of a security outstanding on the date hereof, (C) the
grant by the Company of options to purchase Common Stock pursuant to the terms
of an employee benefit plan in effect on the date hereof or exercise of stock
options outstanding on the date hereof or (D) the sale of shares of Common Stock
to be sold pursuant to an underwriting agreement dated the date hereof among the
Company, the selling stockholders named therein and the underwriters named
therein.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Notes as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Notes are to be offered to the public initially at 100%
of their principal amount (the "PUBLIC OFFERING PRICE") plus accrued interest,
if any, from February 7, 2001 to the date of payment and delivery and to certain
dealers
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selected by you at a price that represents a concession not in excess of 1.8% of
their principal amount. No Underwriter may allow, and no dealer may reallow, a
concession to any Underwriter or dealer.
4. Payment and Delivery. Payment for the Firm Notes shall be made to the
Company in Federal or other funds immediately available in New York City at
10:00 a.m., New York City time, on February 7, 2001, or at such other time on
the same or such other date, not later than February 14, 2001, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Payment for any Additional Notes to be sold by the Company shall be made
to the Company in Federal or other funds immediately available in New York City
at 10:00 a.m., New York City time, on the date specified in the notice described
in Section 2 or at such other time on the same or on such other date, in any
event not later than March 16, 2001 as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "OPTION
CLOSING DATE."
Payment for the Firm Notes and Additional Notes shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of the Firm Notes
and Additional Notes registered in such names and in such denominations as you
shall request in writing not less than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be, with any transfer
taxes payable in connection with the transfer of the Notes to the Underwriters
duly paid.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Notes to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Notes on the Closing Date are subject
to the condition that the Registration Statement shall have become effective not
later than 4:30 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
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(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiary, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Notes on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx, outside counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company is a corporation and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and corporate authority to
own its properties and to conduct its business as described in
the Prospectus;
(ii) the Company is qualified to do business in the
states of California and Pennsylvania;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by Company, and (assuming due authorization, execution
and delivery by the Trustee) is a legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) as enforceability may be
limited by the effects of applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights generally and equitable principles of law of general
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applicability, (ii) as to the enforceability of provisions
providing for indemnity or contribution, which may be contrary
to public policy, and (iii) as to the enforceability of the
waiver of rights or defenses contained in Section 4.4 of the
Indenture;
(v) the Underlying Securities initially issuable upon
conversion of the Notes have been duly authorized and reserved
for issuance upon conversion of the notes and are, to such
counsel's knowledge, free of any preemptive rights arising under
the Company's certificate of incorporation or the Delaware
General Corporation Law and, when issued upon conversion of the
Notes in accordance with the terms of the Indenture, will be
validly issued, fully paid and non-assessable;
(vi) the Notes have been duly authorized by the Company
and, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except (i) as enforceability may be limited by the effects of
applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights generally and
equitable principles of law of general applicability, (ii) as to
the enforceability of provisions providing for indemnity or
contribution, which may be contrary to public policy, and (iii)
as to the enforceability of the waiver of rights or defenses
contained in Section 4.4 of the Indenture;
(vii) the issuance and sale of the Notes by the Company
of pursuant to this Agreement will not result in (A) the
violation by the Company of its Certificate of Incorporation or
By-laws, (B) to such counsel's knowledge, the violation of any
federal or California statute, rule or regulation known to such
counsel to be applicable to the Company or (C) to such counsel's
knowledge, the breach of or a default under any material
agreement or other instrument binding upon the Company or its
subsidiary that has been filed as an exhibit to the Registration
Statement or the Resale Registration Statement, or, to such
counsel's knowledge, any order listed on a schedule to such
opinion;
(viii) no consent, approval, authorization or order of,
or filing with, any federal or California court or governmental
body or agency is required for the issuance and sale of the
Notes pursuant to this Agreement, except such as have been
obtained under the Securities Act and such as may be required
under state securities laws in connection with the purchase and
distribution of the Notes by the Underwriters;
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(ix) the statements (A) in the Prospectus under the
captions "Description of Debt Securities", "Description of Notes"
and "Description of Capital Stock" and (B) in the Registration
Statement and the Resale Registration Statement in Item 15 under
the caption "Indemnification of Directors and Officers", insofar
as such statements constitute summaries of legal matters, are
accurate in all material respects;
(x) to such counsel's knowledge, there are no legal
proceedings, contracts or documents of a character required to be
described in the Registration Statement, the Resale Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement or the Resale Registration Statement that
are not described or filed as required;
(xi) after giving effect to the Company's offering and
sale of the Notes and the application of the net proceeds
therefrom, the Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
(xii) the Registration Statement and the Prospectus
(including the documents incorporated therein by reference) comply
as to form in all material respects with the requirements for
registration statements on Form S-3 under the Securities Act and
the rules and regulations of the Commission thereunder; provided,
however, that such counsel need not express any opinion with
respect to the financial statements, schedules or other financial
or statistical data included or incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus or with
respect to the Form T-1.
(xiii) no facts have come to such counsel's attention
that caused such counsel to believe that the Registration
Statement at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (including the
documents incorporated therein by reference), as of its date or as
of the date hereof, contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such
counsel expresses no opinion with respect to the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in, or omitted from, the
Registration Statement, the Prospectus, or with respect to the
Form T-1.
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(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx and Xxxxxxx, patent counsel for the Company as to
Section A of the Patent Portfolio attached hereto as Exhibit B (the
"PATENT PORTFOLIO"), dated the Closing Date, to the effect that:
(i) to the best of such counsel's knowledge, the Company
owns each of the United States patents and patent applications
listed in Section A of the Patent Portfolio;
(ii) to the best of such counsel's knowledge, there are
no material legal or governmental proceedings, pending or
threatened, with respect to any of the United States patents
listed in Section A of the Patent Portfolio;
(iii) to the best of such counsel's knowledge, the
Company has not received any notice with respect to the
potential infringement of or proceedings against any patents or
trade secrets of others;
(iv) to the best of such counsel's knowledge, without
any searches having been conducted for the purpose of rendering
this opinion, no third parties are infringing any of the United
States patents listed in Section A of the Patent Portfolio;
(v) while there can be no guarantee that any particular
patent application will issue as a patent, each of the United
States patent applications listed in Section A of the Patent
Portfolio that we filed in the United States Patent and
Trademark Office was properly filed and is being diligently
prosecuted in, the United States Patent and Trademark Office;
(vi) while there can be no guarantee that any particular
patent application will issue as a patent, each of the United
States patent applications listed in Section A of the Patent
Portfolio that we did not file in the United States Patent and
Trademark Office, from the time we assumed responsibility for
the prosecution, is being diligently prosecuted in the United
States Patent and Trademark Office; and
(vii) the statements contained in the Prospectus under
the caption "Business - Legal Proceedings," with respect to the
first paragraph thereunder regarding proceedings before the
European Patent Office, insofar as such statements constitute
matters of law, are a fair and accurate summary of the matters
set forth therein.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxx X'Xxxxx Xxxxxxxx Xxxxxx & Borun, patent counsel
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for the Company as to Section B of the Patent Portfolio, dated the
Closing Date, to the effect that:
(i) to the best of such counsel's knowledge, such
knowledge being based upon the files of such firm, except as
otherwise disclosed in the Prospectus, there are no legal or
governmental proceedings relating to patent rights owned,
licensed, or used by the Company pending against the Company or
any third parties and, except for prosecution of the Company's
pending patent applications, to the best of such counsel's
knowledge, there are no legal or governmental proceedings
relating to patent rights owned, licensed or used by third
parties pending against the Company. To the best of such
counsel's knowledge, other than those disclosed in the
Prospectus, no such proceedings are threatened or contemplated
by governmental authorities or others;
(ii) to the best of such counsel's knowledge, such
knowledge being based upon the files of such firm, the Company
has no notice of any infringement by a third party of any patent
owned or used by the Company; and to the best of such counsel's
knowledge, such knowledge being based upon the files of such
firm, the Company has not received notice of any claims of
infringement by the Company of any patent owned or used by a
third party;
(iii) to the best of such counsel's knowledge, such
knowledge being based upon the files of such firm, the Company
or one of its licensors is the sole assignee for each patent and
patent application listed in Section B of the Patent Portfolio.
To the best of such counsel's knowledge, the assignments by the
named inventors have been submitted to the USPTO and those
assignments have been recorded in the assignment records of the
USPTO. However, in one or more of the patents and patent
applications listed in Section B of the Patent Portfolio, the
United States government may hold a nonexclusive, royalty-free
license as a result of providing research funding;
(iv) to the best of such counsel's knowledge, such
knowledge being based upon the files of such firm, the Company's
United States patent applications listed in Section B of the
Patent Portfolio have been prepared and filed in the USPTO in a
form and with accompanying papers that are acceptable to the
USPTO for the purposes of according each such application a
filing date and serial number, and of placing each such
application in condition for eventual examination on the merits
as to patentability. For each such United States application,
except as otherwise noted in
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Exhibit B attached to this opinion, an Official Filing Receipt
has been received from the USPTO. As to each of such
applications, such counsel is not aware of any material defect
of form in preparation or filing. However, there is no assurance
that patents will issue from any pending United States
application, or that any claims will be allowed without
amendment. Neither is there any assurance that a patent will
issue without appeal to the Board of Patent Appeals and
Interferences or to the Federal courts;
(v) to the best of such counsel's knowledge, such
knowledge being based upon the files of such firm, each of the
Company's foreign patents and patent applications listed in
Section B of the Patent Portfolio has been submitted to patent
firms in the respective foreign countries with instructions to
file the applications in the patent offices of those countries
naming the Company or one its licensors as applicant and/or
owner of record. The Patent Cooperation Treaty applications have
been submitted directly to the relevant patent examining
authority of those countries naming the Company or one of its
licensors as the applicant and/or owner of record. In each such
application, written confirmation has been received that the
application has been accepted for filing by such patent office,
or patent examining authority. There is no assurance that the
patent offices of the respective countries will not reject the
claims of the foreign patent applications as being unpatentable,
or that any claims will be allowed without amendment, nor is
there any assurance that these patent authorities will
ultimately conclude that the foreign patent applications meet
all requirements for patentability. Such counsel is not aware of
any material defect of form in preparation or filing. To the
best of such counsel's knowledge, other than two oppositions
filed in the European Patent Office against European Patent No.
500,917 corresponding to Xxxxxxxx X'Xxxxx reference No.
27373/8235-EPO as listed in Section B of the Patent Portfolio,
there are no legal or governmental proceedings relating to any
foreign patent rights or foreign parent applications owned,
licensed or used by the Company pending against the Company or
any third party and, except for prosecution of pending patent
applications, to the best of such counsel's knowledge, there are
no legal or governmental proceedings relating to any foreign
patent rights of foreign patent applications owned, licensed or
used by third parties pending against Aviron. To the best of
such counsel's knowledge, other than otherwise disclosed in the
Prospectus, no such proceedings are threatened or contemplated
by governmental authorities or others; and
(vi) the patent applications in Section B of the Patent
Portfolio are being diligently pursued.
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(f) The Underwriters shall have received on the Closing Date an
opinion of the Law Office of XxXxx Xxxxx, outside patent counsel for the
Company as to Section C of the Patent Portfolio, dated the Closing Date
to the effect that:
(i) except as disclosed in the Prospectus under the
captions "Risk Factors - Other Risks Related to Our Company - We
may not receive patent protection for our potential products and
manufacturing processes" and "Business - Legal Proceedings," to
the best of such counsel's knowledge, the Company has received
no notice of any infringement or misappropriation by a third
party of any patent in Section C of the Patent Portfolio or
notice of any infringement or misappropriation by the Company of
any patents, trade secrets, trademarks, trade names, copyrights
or other proprietary rights of a third party;
(ii) except as disclosed in the Prospectus under the
captions "Risk Factors - Other Risks Related to Our Company - We
may not receive patent protection for our potential products and
manufacturing processes" and "Business - Legal Proceedings," to
the best of such counsel's knowledge, the Company or its
licensor is the sole assignee for each United States patent and
patent application listed in Section C of the Patent Portfolio.
Except as otherwise noted in Section C of the Patent Portfolio
attached hereto, for each of the United States patents and
patent applications, the assignments by the named inventors have
been submitted to the United States Patent and Trademark Office
("USPTO") and those assignments have been recorded in the Patent
Office's title records. However, in one or more of the patents
and patent applications listed in Section C of the Patent
Portfolio, the United States government may hold a nonexclusive,
royalty-free license as a result of providing research funding;
(iii) to such counsel's knowledge, the Company's United
States patent applications listed in Section C of the Patent
Portfolio have been prepared and filed in the USPTO in a form
and with accompanying papers that are acceptable to the USPTO
for the purposes of according each such application a filing
date and serial number, and of placing each such application in
condition for eventual examination on the merits as to
patentability. For each such United States patent application,
such counsel is not aware of any material defect of form in
preparation or filing;
(iv) to such counsel's knowledge, except as disclosed in
the Prospectus, as to each of the Company's foreign patent
applications listed in Section C of the Patent Portfolio, the
applications have either (a) been submitted to patent firms in
the
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respective foreign countries with instructions to file the
applications in the patent offices of those countries naming the
Company as the applicant of record, or (b) as to certain Patent
Cooperation Treaty applications, been submitted directly to the
relevant receiving office naming the Company as the applicant of
record. To the best of such counsel's knowledge and except as
noted in Section C of the Patent Portfolio, as to each of such
applications, the Company has not received notice from any
foreign filing authority of any material defect of form in the
preparation or filing; and
(g) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx, U.K. counsel for the Company, dated the
Closing Date, to the effect that:
(i) Aviron UK Limited is duly incorporated and existing
as a private limited company registered in England and Wales
under company number 3854275 and is authorised pursuant to its
Memorandum of Association to carry on its current business and
to occupy its current premises. Aviron UK Limited is in good
standing as shown by the Certificate of Good Standing received
from the Registrar of Companies; and
(ii) the authorised share capital of Aviron UK Limited
of 1000 is Pound Sterling1000 divided into 1000 ordinary shares
of Pound Sterling1 each of which 1 share has been validly issued
and is fully paid up. Aviron is the registered owner of the only
issued ordinary share of Pound Sterling1 in the capital of
Aviron UK Limited, free and clear of all liens, encumbrances,
equities or claims.
(h) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
5(c)(iii), 5(c)(iv), 5(c)(vi), 5(c)(ix) (but only as to the statements
in the Prospectus under "Description of Debt Securities," "Description
of the Notes" and "Underwriters") and 5(c)(xii) and 5(c)(xiii) above.
With respect to Section [5(c)(xiv)] above, Xxxxxx & Xxxxxxx and
Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and review and
discussion of the contents thereof (including the documents incorporated
therein by reference), but are without independent check or
verification, except as specified.
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The opinions of Xxxxxx & Xxxxxxx, Xxxxxx and Xxxxxxx, Xxxxxxxx
X'Xxxxx Xxxxxxxx Xxxxxx & Borun and the Law Offices of XxXxx Xxxxx
described in Sections 5(c), 5(d), 5(e), 5(f) and 5(g) above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
(i) The Underwriters shall have received, on each of the date
hereof, the Closing Date and, if applicable, the Option Closing Date, a
letter dated the date hereof, the Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Ernst & Young LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(j) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto (collectively, the "LOCK-UP AGREEMENTS"), between you
and the officers and directors of the Company relating to sales and
certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Notes
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Notes and other
matters related to the issuance of the Additional Notes.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, four signed copies of the
Registration Statement (each including exhibits thereto and documents
incorporated therein by reference) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (each without
exhibits thereto but including documents incorporated therein by
reference) and to furnish to you, without charge, on the business day
next succeeding the date of this Agreement and during the period
mentioned in Section 6(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such
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proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed pursuant to
such Rule.
(c) If, during such period after the first date of the public
offering of the Notes as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with
sales of Notes by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Notes may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending March 31, 2002 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Notes under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and
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delivery of the Notes to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and
sale of the Notes under state securities laws and all expenses in
connection with the qualification of the Notes for offer and sale under
state securities laws as provided in Section 6(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum, (iv) all filing fees
and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering
of the Notes by the National Association of Securities Dealers, Inc.,
(v) all costs and expenses incident to listing the Underlying Securities
on the Nasdaq National Market (if any), (vi) the costs and charges of
any transfer agent, registrar or depositary, (vii) the costs and
expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the
Notes, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road show,
and (viii) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 7 entitled "Indemnity and
Contribution," and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Notes by them and any advertising expenses
connected with any offers they may make.
(g) To issue stop-transfer instructions to the transfer agent
for the Common Stock with respect to any transaction or contemplated
transaction that would constitute a breach of or default under the
applicable Lock-up Agreement.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
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supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein; provided that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Notes, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the Notes
to such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities,
unless such failure is the result of noncompliance by the Company with Section
6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the Company,
the officers of the Company who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only with reference
to information relating to such Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay the fees and
disbursements of such counsel
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related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act and (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the
Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act. In the case of any such separate firm for the Underwriters and such
control persons of any Underwriters, such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such
separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
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(d) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party
or parties on the other hand from the offering of the Notes or (ii) if
the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and
of the indemnified party or parties on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the
offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Notes (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Notes. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes they have purchased hereunder, and
not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to
in Section 7(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Notes underwritten by it and
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distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Notes.
8. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (8)(a)(i) through 8(a)(iv), such event, singly
or together with any other such event, makes it, in your judgment, impracticable
to market the Notes on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Notes that
it has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Notes which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Firm Notes set forth opposite their respective names in Schedule I
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bears to the aggregate principal amount of Firm Notes set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Notes that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of Notes
without the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Notes and the
aggregate principal amount of Firm Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Firm Notes to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Notes are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Notes and the aggregate
principal amount of Additional Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of Additional Notes to
be purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Notes or (ii)
purchase not less than the principal amount of Additional Notes that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
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12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AVIRON
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
XX XXXXX SECURITIES CORPORATION
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
------------------------------------------
Name:
Title:
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SCHEDULE I
PRINCIPAL AMOUNT OF
FIRM NOTES TO BE
UNDERWRITER PURCHASED
----------------------------------------------------- --------------------
Xxxxxx Xxxxxxx & Co. Incorporated.................... $120,000,000
Chase Securities Inc................................. 40,000,000
XX Xxxxx Securities Corporation...................... 40,000,000
------------
Total:....................................... $200,000,000
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EXHIBIT A
[FORM OF LOCK-UP LETTER]
______________, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Chase Securities Inc.
XX Xxxxx Securities Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Aviron, a Delaware corporation (the "COMPANY"),
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS"), of its Convertible
Subordinated Notes due 2008 (the "NOTES"). The Notes will be convertible into
shares of common stock, par value $0.001 per share, of the Company (the "COMMON
STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
supplement relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) the sale of any shares of Common Stock to the Underwriters pursuant to
the concurrent offering of Common Stock, (b) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering and (c) transfers of shares of Common Stock or
any security convertible into Common Stock as a bona fide gift or gifts;
provided that in the case of any transfer pursuant to clause (c), (i) each donee
shall execute and deliver to Xxxxxx Xxxxxxx a duplicate form of this lock-up
agreement and (ii) no filing by any party (donor, donee, transferor or
transferee) under Section 16(a) of the Securities Exchange
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Act of 1934, as amended, shall be required or shall be made voluntarily in
connection with such transfer (other than a filing on a Form 5 made after the
expiration of the 90-day period referred to above). In addition, the undersigned
agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of
the Underwriters, it will not, during the period commencing on the date hereof
and ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned's shares of Common Stock except in compliance with
the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this lock-up agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this lock-up agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters. This agreement will
terminate if the Underwriting Agreement has not been executed on or before June
1, 2001 or if the Company notifies you (with the prior written consent of Xxxxxx
Xxxxxxx, such consent not to be unreasonably withheld) that it does not intend
to proceed with the Public Offering.
Very truly yours,
----------------------------------
(Name)
----------------------------------
(Address)
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EXHIBIT B
PATENT PORTFOLIO
SECTION A - (XXXXXX & XXXXXXX)
P&E DOCKET NO. P&E DOCKET NO.
-------------- --------------
7682-0010 7682-0025
7682-0021 7682-0048
7682-0035 7682-0045
7682-0036 7682-0047
7682-0034 7682-0049
7682-0044 7682-0039
7682-0019 7682-0038
7682-0037 7682-0050
7682-0051 7682-0052
7682-0053 7682-0054
7682-0055
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EXHIBIT B (Cont'd)
SECTION B - (XXXXXXXX X'XXXXX)
XXXXXXXX DOCKET NO. XXXXXXXX DOCKET NO.
------------------- -------------------
28097/32325 27373/32742
27373/32908 27373/32742A
27373/0001 27373/31916
27373/0003 27373/0002F
27373/8235 27373/0002E
27373/31746CA 28097/33309
27373/31746JP 27373/0002B
27373/32908CA 27373/0002D
27373/32908JP 27373/31746EPO
27373/8235JP 27373/32908EPO
27373/0001EPO 27373/8235CA
27373/0002EPO 27373/31746AU
27373/0002AJP 27373/0001CA
27373/0003EPO 27373/0002JP
27373/0003JP 27373/0003AU
27373/8235AU 27373/0003CA
27373/31011KR 27373/0003ZA
27373/8235EPO
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EXHIBIT B (Cont'd)
SECTION C - (LAW OFFICES OF XXXXX XXXXX)
AVIRON REFERENCE NO.
5016
5016.1
5016.2
5018 IN
5018 MY
5019
5019.1
5019.2
5019.3
5019 PCT
5019 AU
5019 CA
5019 EP
5019 JP
5021
5021.1
5021.2
5021 PCT
5021 AU
5021 CA
5021 EP
5021 JP
5021 SK
5022
5022.1
5023.1
5023 PCT
AV 9801 US
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