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EXHIBIT 4.1
AMENDMENT NO. 1
TO
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF JUNE 9, 2000
BETWEEN
AVIRON
AND
ACQUA WELLINGTON NORTH AMERICAN
EQUITIES FUND, LTD.
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AMENDMENT NO. 1, dated as of June 9, 2000 (this "Amendment"),
between Aviron, a Delaware corporation (the "Company") and Acqua Wellington
North American Equities Fund, Ltd., a company organized under the laws of the
Commonwealth of The Bahamas (the "Purchaser"), to the Common Stock Purchase
Agreement ( the "Purchase Agreement"), dated as of January 11, 2000 between the
Company and the Purchaser.
W I T N E S S E T H :
WHEREAS, the Purchase Agreement provides for the issuance and
sale to the Purchaser of shares of the Company's common stock, par value $0.001
(the "Common Stock"), based on certain Draw Downs (as defined therein) as
provided therein;
WHEREAS, pursuant to the Purchase Agreement, three (3) Draw
Downs issued and exercised by the Company, each in the amount of $4,000,000,
were settled on or around March 2, 2000, April 11, 2000 and May 10, 2000,
respectively; and
WHEREAS, the parties now wish to amend the Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereby agree as follows:
Section 1. Amendments to the Purchase Agreement.
1. Definitions.
(a) Section 1.1(d) of the Purchase Agreement is hereby amended
by deleting the definition of "Draw Down Amount" in its entirety and
substituting, in lieu thereof, the following:
(d) "Draw Down Amount" means the actual amount of a
Draw Down up to $4,000,000 and shall be adjusted
as stated in Sections 1.1(d)(i) to (v) hereof;
provided, that the Company may, in its sole
discretion, issue a Draw Down Notice with
respect to any Draw Down Amount at any Threshold
Price or any Draw Down Discount Price or any
Draw Down Pricing Period pursuant to terms
mutually agreed upon by the Purchaser and the
Company, which Draw Down the Purchaser will be
obligated to honor. Prior to issuing any Draw
Down Notice, the Company shall have Shares
registered under the Registration Statement
which are valued at an amount equal to or in
excess of the requested Draw Down Amount.
(i) If the Company's Market Capitalization (as
determined by Section 1.1(d)(v) below) equals or
exceeds $450,000,000 the actual amount of Draw
Down shall be up to $8,000,000;
(ii) If the Company's Market Capitalization equals or
exceeds $400,00,000 but is less than
$450,000,000, the actual amount of Draw Down
shall be up to $7,000,000;
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(iii) If the Company's Market Capitalization equals or
exceeds $350,000,000 but is less than
$400,000,000, the actual amount of Draw Down
shall be up to $6,000,000;
(iv) If the Company's Market Capitalization equals or
exceeds $300,000,000 but is less than
$350,000,000, the actual amount of Draw Down
shall be up to $5,000,000;
(v) "Market Capitalization" shall be calculated on
the trading day preceding the first day of the
Draw Down Pricing Period and shall be the
product of the closing bid price and the number
of shares outstanding of the stock, both as
determined by Bloomberg LP using the HP and DES
functions, respectively.
(b) Section 1.1(g) of the Purchase Agreement is hereby amended
by deleting the definition of "Draw Down Pricing Period" in its entirety and
substituting, in lieu thereof, the following:
(g) "Draw Down Pricing Period" shall mean a period
of eighteen (18) consecutive trading days
following a Draw Down Notice (or such other
period of consecutive trading days as mutually
agreed upon by the Company and the Purchaser).
2. Purchase and Sale of Common Stock. Section 2.1 of the
Purchase Agreement is hereby amended by deleting the section in its entirety and
substituting, in lieu thereof, the following:
"Section 2.1 Purchase and Sale of Stock. Subject to the terms
and conditions of this Agreement, the Company shall issue and sell to the
Purchaser and the Purchaser shall purchase from the Company up to an aggregate
of $84,000,000 of the Company's common stock, $.001 par value per share (the
"Common Stock"), based on up to twelve (12) monthly Draw Downs. The Draw Down
Amount of each Draw Down shall be determined pursuant to Section 1.1(d) hereof."
3. Draw Down Terms Section 6.1 of the Purchase Agreement is
hereby amended by deleting the section in its entirety and substituting, in lieu
thereof, the following:
"Section 6.1 Draw Down Terms. Subject to the satisfaction of the
conditions set forth in this Agreement, the parties agree as follows:
(a) The Company, may, in its sole discretion, issue and exercise
a draw down of up to the Draw Down Amount (a "Draw Down") during each
Draw Down Pricing Period, which Draw Down the Purchaser will be
obligated to accept. Prior to issuing any Draw Down request, the Company
shall have at least the Draw Down Amount registered under the
Registration Statement.
(b) The number of Shares to be issued in connection with each
Draw Down shall be equal to the sum of up to eighteen (18) quotients
(one for each trading day of the Draw Down Pricing Period for which the
VWAP equals or exceeds the Threshold Price)
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each of which will be (x) 1/18th (or such other fraction based upon the
agreed upon Draw Down Pricing Period ) of the Draw Down Amount divided
by (y) the applicable Draw Down Discount Price.
(c) Only one Draw Down shall be allowed in each Draw Down
Pricing Period.
(d) The number of Shares purchased by the Purchaser with respect
to each Draw Down shall be determined on a daily basis during each Draw
Down Pricing Period and settled on a monthly basis (the "Settlement
Date").
(e) There shall be a minimum of two (2) trading days between
Draw Downs (or such other number of trading days as mutually agreed upon
by the Company and the Purchaser).
(f) There shall be a maximum of twelve (12) monthly Draw Downs
during the term of this Agreement.
(g) At the end of each Draw Down Pricing Period and regardless
of the Draw Down Amount requested by the Company, the Purchaser's total
Draw Down commitment shall be reduced; (i) by $4,000,000 per Draw Down
occurring prior to June 1, 2000 and (ii) by $8,000,000 per Draw Down
occurring on or after June 1, 2000.
(h) Each Draw Down will expire on the last trading day of each
Draw Down Pricing Period.
(i) If the VWAP on a given trading day is less than the
Threshold Price, then the total amount of the Draw Down will be reduced
by 1/18th (or such other fraction based upon the agreed upon Draw Down
Pricing Period) and no Shares will be purchased or sold with respect to
such trading day. Notwithstanding anything in the foregoing to the
contrary, if the VWAP on a given trading day is less than the Threshold
Price, the Purchaser may elect in its sole discretion to purchase Shares
at the Threshold Price and shall take into account a discount of 92% of
the VWAP. At no time shall the Threshold Price be set below $10.00
unless agreed upon by the Company and the Purchaser. If trading in the
Company's Common Stock is suspended for any reason for more than three
(3) hours in any trading day, at the Purchaser's option, the price of
the Common Stock shall be deemed to be below the Threshold Price for
that trading day.
(j) The Company must inform the Purchaser via facsimile
transmission as to the Draw Down Amount the Company wishes to exercise
before commencement of trading on the first trading day of the Draw Down
Pricing Period (the "Draw Down Notice"). In addition to the Draw Down
Amount, the Company shall set the Threshold Price with each Draw Down
Notice and shall designate the first trading day of the Draw Down
Pricing Period. At no time shall the Purchaser be required to purchase
more than the Draw Down Amount of the Company's Common Stock for a given
Draw Down Pricing Period so that if the Company chooses not to exercise
the Draw Down in a given Draw Down Pricing Period the Purchaser is not
obligated to purchase more than the Draw Down Amount in a subsequent
Draw Down Pricing Period.
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(k) On each Settlement Date, the Company shall deliver the
Shares purchased by the Purchaser to the Purchaser or to The Depositary
Trust Company ("DTC") account designated by the Purchaser via DWAC and
upon receipt of the Shares, the Purchaser shall cause payment to be made
for the Shares to the Company's designated account by wire transfer of
immediately available funds; provided that the Shares are received by
the Purchaser no later than 1:00 p.m., eastern time, or next day
available funds if the Shares are received thereafter. The delivery of
the shares of Common Stock into the Purchaser's DTC account in exchange
for payment therefor shall be referred to herein as "Settlement". The
Purchaser shall coordinate Settlement with the Company through DTC.
(l) If during any Draw Down Pricing Period, the Company shall
issue any shares of Common Stock (other than shares of Common Stock
issued to corporate partners or in connection with a joint venture), the
Purchaser may in its sole discretion (i) purchase the Draw Down Amount
of shares of Common Stock at the price at which the Company issued
shares of Common Stock during such Draw Down Pricing Period, (ii)
purchase the Draw Down Amount of shares of Common Stock at the
applicable Draw Down Discount Price, or (iii) elect not to purchase any
Shares during such Draw Down Pricing Period."
Section 2. Company's Representations, Warranties and Covenants.
1. Representations and Warranties. Each of the representations
and warranties of the Company set forth in Section 3.1 of the Purchase Agreement
is true and correct in all material respects as of the date hereof (except for
representations and warranties that speak as of a particular date).
2. Covenants. After giving effect to this Amendment, the Company
hereby makes, confirms, reaffirms and restates the covenants set forth in
Article IV of the Purchase Agreement and confirms that such covenants are for
the benefit of the Purchaser.
Section 3. Miscellaneous.
1. Limited Effect. Except as expressly amended and modified by
this Amendment, all of the provisions and covenants of the Purchase Agreement
are and shall continue to remain in full force and effect in accordance with the
terms thereof.
2. Counterparts. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3. Governing law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to the choice of law provisions.
4. Expenses. The Company agrees to pay or reimburse the
Purchaser for all its reasonable out-of-pocket costs and expenses incurred by
the Purchaser up to $2,500 in connection with the development, preparation and
execution of this Amendment and any other document prepared in connection
herewith. The Company expressly acknowledges and further
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agrees that nothing in the preceding sentence shall be construed to limit in any
way the provisions of Section 9.1 of the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective authorized
officers as of the date first above written.
AVIRON
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Vice-President and
Chief Financial Officer
ACQUA WELLINGTON NORTH AMERICAN
EQUITIES FUND, LTD.
By: /s/ Xxxxxxx X.X. Xxxxx Xxxxxx
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Name: Xxxxxxx X.X. Xxxxx Xxxxxx
Title: Director
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