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Exhibit 4.25
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144
OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE SHARES
OF
AVIRON
COMPANY: AVIRON, a Delaware corporation (the "Company"), and any corporation that
shall succeed to the obligations of the Company under this Warrant.
NUMBER OF SHARES: 50,000
CLASS OF STOCK: Common Stock
INITIAL EXERCISE PRICE: $10.00
DATE OF GRANT: March 29, 2001
THIS CERTIFIES THAT, for value received, The Regents of the University
Michigan ("Michigan") or any permitted transferee of its rights hereunder is
entitled to purchase the above number (as adjusted pursuant to Section 5 hereof)
of fully paid and nonassessable shares of the above Class of Stock of the
Company at the Initial Exercise Price above (as adjusted pursuant to Section 5
hereof), subject to the provisions and upon the terms and conditions set forth
herein. THE EXPIRATION DATE OF THIS WARRANT SHALL BE SEVEN (7) YEARS FROM THE
DATE OF GRANT.
1. DEFINITIONS.
In addition to the terms defined above, the following capitalized terms
shall have the following meanings, unless the context otherwise requires:
(a) "Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations thereunder, as
shall be in effect at the time.
(b) "Common Stock" shall mean shares of the authorized common stock of the
Company and any stock into which such common stock may hereafter be
exchanged.
(c) "Warrantholder" shall mean any person who shall at the time be the
holder of this Warrant.
(d) "Shares" shall mean the shares of the Class of Stock that the
Warrantholder is entitled to purchase upon exercise of this Warrant,
as adjusted pursuant to Section 5 hereof.
(e) "Warrant Price" shall mean the Initial Exercise Price at which this
Warrant may be exercised, as adjusted pursuant to Section 5 hereof.
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2. TERM.
The purchase right and Conversion Right (as defined in Section 7.1),
represented by this Warrant is exercisable, in whole or in part, at any time on
or before the Expiration Date.
3. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT.
Subject to Section 2 hereof, the purchase right represented by this Warrant
may be exercised by the Warrantholder, in whole or in part, by the surrender of
this Warrant (with the notice of exercise form attached hereto as Appendix A
duly executed) at the principal office of the Company and by the payment to the
Company, by check made payable to the Company drawn on a United States bank and
for United States funds of an amount equal to the then applicable Warrant Price
per share multiplied by the number of Shares then being purchased. In the event
of any exercise of the purchase right represented by this Section 3,
certificates for the Shares so purchased shall be delivered to the Warrantholder
with thirty (30) days of receipt of such payment and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the portion of the
Shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the Warrantholder within such thirty (30) day
period.
4. EXERCISE PRICE.
The Warrant Price at which this Warrant may be exercised shall be the
Initial Exercise Price, as adjusted from time to time pursuant to Section 5
hereof.
5. ADJUSTMENT OF NUMBER AND KIND OF SHARES AND ADJUSTMENT OF WARRANT PRICE.
5.1 CERTAIN DEFINITIONS. As used in this Section 5 the following terms
shall have the following respective meanings:
(a) "Options" shall mean rights, options or warrants to subscribe
for, purchase or otherwise acquire either shares of Common Stock
or Convertible Securities;
(b) "Convertible Securities" shall mean any evidences or
indebtedness, shares of stock or other securities directly or
indirectly convertible into or exchangeable for Common Stock.
5.2 ADJUSTMENTS. The number and kind of securities purchasable upon the
exercise of this Warrant and Warrant Price shall be subject to
adjustment from time to time upon the occurrence of certain events, as
follows:
(a) Reclassification, Reorganization, Consolidation or Merger. In the
case of any reclassification of the Class of Stock that the
Warrantholder is entitled to purchase upon exercise of this
Warrant, or any reorganization, consolidation or merger of the
Company with or into another corporation (other than a merger or
reorganization with respect to which the Company is the surviving
corporation and which does not result in any reclassification of
such Class of Stock), the Company, or such successor corporation,
as the case may be, shall execute a new warrant, providing that
the Warrantholder shall have the right to exercise such new
warrant and upon such exercise to receive, in lieu of each share
of the Class of Stock theretofore issuable upon exercise of this
Warrant, the kind of securities receivable upon such
reclassification,
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reorganization, consolidation or merger by a holder of shares of
the same Class of Stock of the Company. The Warrant Price and the
number of shares of such new securities to be received by the
Warrantholder upon exercise of the Warrant shall be adjusted so
that the Warrantholder shall receive upon exercise of the Warrant
and payment of the same aggregate consideration the number of
shares of new securities which the Warrantholder would have owned
immediately following such reclassification, reorganization,
consolidation or merger if the Warrantholder had exercised the
Warrant immediately prior to such reclassifications,
reorganization, consolidation or merger. The provisions of this
subsection (a) shall similarly apply to successive
reclassification, reorganizations, consolidations or mergers.
(b) Split, Subdivision or Combination of Shares. If the Company at
any time while this Warrant remains outstanding and unexpired
shall split, subdivide or combine the Class of Stock for which
this Warrant is then exercisable, the Warrant Price shall be
proportionately decreased in the case of a split or subdivision
or proportionately increased in the case of a combination. Any
adjustment under this subsection (b) shall become effective when
the split, subdivision or combination becomes effective.
(c) Stock Dividends. If the Company at any time while this Warrant
remains outstanding and unexpired shall pay a dividend with
respect to the Class of Stock for which this Warrant is then
exercisable, payable in shares of that Class of Stock, Options or
Convertible Securities, the Warrant Price shall be adjusted, from
and after the date of determination by a fraction (i) the
numerator of which shall be the total number of shares of that
Class of Stock outstanding immediately prior to such dividend or
distribution, and (ii) the denominator of which shall be the
total number of shares of the same Class of Stock outstanding
immediately after such dividend or distribution (including shares
of that Class of Stock issuable upon exercise, conversion or
exchange of any Options or Convertible Securities issued as such
dividend or distribution). If the Options or Convertible
Securities issued as such dividend or distribution by their terms
provide, with the passage of time or otherwise, for any decrease
in the consideration payable to the Company, or any increase in
the number of shares issuable upon exercise, conversion or
exchange thereof (by change of rate or otherwise), the Warrant
Price shall, upon any such decrease or increase becoming
effective, be reduced to reflect such decrease or increase as if
such decrease or increase became effective immediately prior to
the issuance of the Options or Convertible Securities as the
dividend or distribution. Any adjustment under this subsection
(c) shall become effective on the record date set for such
dividend or distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the
Warrant Price pursuant to Section 5(b) or 5(c) above, the number
of Shares issuable upon exercise of this Warrant shall be
adjusted to the product obtained by multiplying the number of
Shares issuable immediately prior to such adjustment in the
Warrant Price by a fraction (i) the numerator of which shall be
the Warrant Price immediately prior to such adjustment, and (ii)
the denominator of which shall be the Warrant Price immediately
after such adjustment.
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6. NOTICE OF ADJUSTMENTS.
So long as the Warrant remains outstanding and unexpired, whenever the
Warrant Price shall be adjusted pursuant to Section 5 hereof, the Company shall
issue a certificate signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the Warrant
Price after giving effect to such adjustment, and shall cause a copy of such
certificate to be mailed (by first class mail, postage prepaid) to the
Warrantholder.
7. RIGHT TO CONVERT WARRANT INTO STOCK.
7.1 RIGHT TO CONVERT. In addition to the rights granted under Section 3 of
this Warrant, the Warrantholder shall have the right to require the
Company to convert this Warrant, in whole or in part, (the "Conversion
Right"), into shares of the Class of Stock for which the Warrant is
then exercisable, as provided in this Section 7. Upon exercise of the
Conversion Right, the Company shall deliver to the Warrantholder
(without payment by the Warrantholder of any Warrant Price) that
number of shares of stock equal to the quotient obtained by dividing
(x) the value of the portion of the Warrant specified for conversion
at the time the Conversion Right is exercised (determined by
subtracting the aggregate Warrant Price, immediately prior to the
exercise of the Conversion Right, of the number of shares to be
converted from the aggregate fair market value [as determined pursuant
to Section 7.3 below], immediately prior to the exercise of the
Conversion Right, of those Shares) by (y) the fair market value (as
determined pursuant to Section 7.3 below) of one share of that Class
of Stock immediately prior to the exercise of the Conversion Right.
7.2 METHOD OF EXERCISE. So long as the Warrant remains outstanding and
unexpired, the Conversion Right may be exercised at any time by the
Warrantholder by the surrender of this Warrant at the principal office
of the Company together with a written statement specifying that the
Warrantholder thereby intends to exercise the Conversion Right, and
specifying the number of shares to be converted. Certificates of the
shares of stock issuable upon exercise of the Conversion Right shall
be delivered to the Warrantholder within thirty (30) days following
the Company's receipt of this Warrant together with the aforesaid
written statement, and unless this Warrant has been fully exercised or
expired, a new Warrant representing the portion of the Shares, if any,
with respect to which this Warrant shall not then have been exercised
shall also be issued to the Warrantholder within such thirty (30) day
period.
7.3 VALUATION OF STOCK. For purposes of this Section 7, the fair market
value of one share of the Class of Stock issuable upon exercise of
this Warrant shall mean:
(a) The product of (i) the average of the closing price or, if no
closing price is reported, the closing bid and asked prices of
the Common Stock, quoted in the Over-The-Counter Market Summary
or the closing price quoted on any exchange on which the Common
Stock is listed, whichever is applicable, as published in the
Western Edition of The Wall Street Journal for the ten (10)
trading days prior to the date of determination of fair market
value, and (ii) the number of shares of Common Stock into which
each share of the Class of Stock is then convertible, if
applicable;
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(b) If the Common Stock is not traded Over-The-Counter or on an
exchange, the fair market value of the Class of Stock per share
shall be as determined in good faith by the Company's Board of
Directors; provided, however, that if the Warrantholder disputes
in writing the fair market value determined by the Board of
Directors within thirty (30) days of being informed of such fair
market value, the fair market value shall be determined by an
independent appraiser, appointed in good faith by the Company's
Board of Directors.
8. COMPLIANCE WITH ACT; TRANSFERABILITY OF WARRANT; DISPOSITION OF SHARES.
8.1 LEGENDS. This Warrant and the Shares issued upon exercise thereof
shall be imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED FOR
SALE, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
8.2 TRANSFERABILITY OF WARRANT AND SHARES. This Warrant and the Shares
issued upon exercise thereof shall not be sold, transferred or
assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment
representation letters and legal opinions reasonably satisfactory to
the Company, if reasonably requested by the Company). Subject to the
provisions of this Section 8.2, title to this Warrant may be
transferred in the same manner as a negotiable instrument transferable
by endorsement and delivery.
9. RIGHTS OF THE HOLDER.
The Warrantholder shall not, by virtue hereof, be entitled to any rights of
a shareholder in the Company, either at law or equity, and the rights of the
Warrantholder are limited to those expressed in this Warrant. Nothing contained
in this Warrant shall be construed as conferring upon the Warrantholder hereof
the right to vote or to consent or to receive notice as a shareholder of the
Company on any matters or with respect to any rights whatsoever as a shareholder
of the Company. No dividends or interest shall be payable or accrued in respect
of this Warrant or the interest represented hereby or the Shares purchasable
hereunder until, and only to the extent that this Warrant shall have been
exercised in accordance with its terms.
10. MISCELLANEOUS.
No fractional shares shall be issued in connection with any exercise
hereunder, but in lieu of such fractional shares the Company shall make a cash
payment therefor upon the basis of the Warrant Price then in effect. The terms
and provisions of this Warrant shall inure to the benefit of, and be binding
upon, the Company and the Warrantholder and their respective successors and
assigns. This Warrant shall be governed by and construed under the laws of the
State of California as applied to contracts entered into between residents of
the State of California to be wholly performed in the State of California. The
titles of the sections and subsections of this
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Warrant are for convenience only and are not to be considered in construing this
Warrant. All pronouns used in the Warrant shall be deemed to include masculine,
feminine and neuter forms.
AVIRON
By: /s/ C. Xxxx Xxxxxx
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C. Xxxx Xxxxxx
President and Chief Executive Officer
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APPENDIX A
NOTICE OF EXERCISE
TO: AVIRON
1. The undersigned hereby elects to purchase shares of the stock of
Aviron, a Delaware corporation, pursuant to terms of the attached
Warrant, and tenders herewith payment of the purchase price of such
shares in full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of
the stock in the name of the undersigned or in such other name as
specified below.
3. The undersigned represents it is acquiring the shares of stock solely
for its own account for investment and not as a nominee for any other
party and not with a view toward the resale or distribution thereof
within the meaning of the Securities Act of 1933, as amended.
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(Name)
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(Address)
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(Taxpayer Identification Number)
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(print name of Warrantholder)
By:
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Title:
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Date:
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