View:
As filed with the Securities and Exchange Commission on April 9, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALEXION PHARMACEUTICALS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 13-3648318
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) Number)
25 SCIENCE PARK
NEW HAVEN, CONNECTICUT 06511
(203) 776-1790
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
ALEXION PHARMACEUTICALS, INC.
1992 STOCK OPTION PLAN
(full title of the plan)
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LEONARD BELL, M.D.
ALEXION PHARMACEUTICALS, INC.
25 SCIENCE PARK
NEW HAVEN, CONNECTICUT 06511
(203) 776-1790
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications, including all communications sent to the
agent for service, should be sent to:
MERRILL M. KRAINES, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103
(212) 318-3000
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EXHIBIT 4(a)
ALEXION PHARMACEUTICALS, INC.
1992 STOCK OPTION PLAN
1. Purpose. The purpose of the Alexion Pharmaceuticals, Inc. 1992 Stock
Option Plan (the "Plan") is to enable Alexion Pharmaceuticals, Inc. (the
"Company") and its stockholders to secure the benefits of common stock ownership
by key personnel of the Company and its subsidiaries. The Board of Directors of
the Company (the "Board") believes that the granting of options under the Plan
will foster the Company's ability to attract, retain and motivate those
individuals who will be largely responsible for the profitability and long-term
future growth of the Company.
2. Stock Subject to the Plan. The Company may issue and sell a total of
1,800,000 shares of its common stock, $.0001 par value (the "Common Stock"),
pursuant to the Plan. Such shares may be either authorized and unissued or held
by the Company in its treasury. New options may be granted under the Plan with
respect to shares of Common Stock which are covered by the unexercised portion
of an option which has terminated or expired by its terms, by cancellation or
otherwise.
3. Administration. The Plan will be administered by a committee (the
"Committee") consisting of at least two directors appointed by and serving at
the pleasure of the Board. Unless the Board determines otherwise, the members of
the Committee are to be "disinterested directors" within the meaning and for the
purposes of Rule 16(b)-3 under the Securities Exchange Act of 1934. Subject to
the provisions of the Plan, the Committee, acting in its sole and absolute
discretion, will have full power and authority to grant options under the Plan,
to interpret the provisions of the Plan, to fix and interpret the provisions of
option agreements made under the Plan, to supervise the administration of the
Plan, and to take such other action as may be necessary or desirable in order to
carry out the provisions of the Plan. A majority of the members of the Committee
will constitute a quorum. The Committee may act by the vote of a majority of its
members present at a meeting at which there is a quorum or by unanimous written
consent. The decision of the Committee as to any disputed question, including
questions of construction, interpretation and administration, will be final and
conclusive on all persons. The Committee will keep a record of its proceedings
and acts and will keep or cause to be kept such books and records as may be
necessary in connection with the proper administration of the Plan.
4. Eligibility. Options may be granted under the Plan to present or future
key employees of the Company or a subsidiary of the Company (a "Subsidiary")
within the meaning of Section 424(f) of the Internal Revenue Code of 1986 (the
"Code"), and to consultants to the Company or a Subsidiary who are not
employees. Options may be granted to directors of the Company or a Subsidiary
whether or not also employees of or consultants to the Company and/or a
Subsidiary. Subject to the provisions of the Plan, the Committee may from time
to time select the persons to whom options will be granted, and will fix the
number of shares covered by each such option and establish the terms and
conditions thereof (including, without limitation, exercise price and
restrictions on exercisability of the option or on the shares of Common Stock
issued upon exercise thereof and whether or not the option is to be
treated as an incentive stock option within the meaning of Section 422 of the
Code (an "Incentive Stock Option").
5. Terms and Conditions of Options. Each option granted under the Plan will
be evidenced by a written agreement in a form approved by the Committee. Each
such option will be subject to the terms and conditions set forth in this
paragraph and such additional terms and conditions not inconsistent with the
Plan (and, in the case of an Incentive Stock Option, not inconsistent with the
provisions of the Code applicable thereto) as the Committee deems appropriate.
(a) Option Exercise Price. In the case of an option which is not
treated as an Incentive Stock Option, the exercise price per share may not be
less than the par value of a share of Common Stock on the date the option is
granted; and, in the case of an Incentive Stock Option, the exercise price per
share may not be less than 100% of the fair market value of a share of Common
Stock on the date the option is granted (110% in the case of an optionee who, at
the time the option is granted, owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or a Subsidiary (a
"ten percent shareholder")). For purposes hereof, the fair market value of a
share of Common Stock on any date will be equal to the closing sale price per
share as published by a national securities exchange on which shares of the
Common Stock are traded on such date or, if there is no sale of Common Stock on
such date, the average of the bid and asked prices on such exchange at the
closing of trading on such date or, if shares of the Common Stock are not listed
on a national securities exchange on such date, the closing price or, if none,
the average of the bid and asked prices in the over the counter market at the
close of trading on such date, or if the Common Stock is not traded on a
national securities exchange or the over the counter market, the fair market
value of a share of the Common Stock on such date as determined in good faith by
the Committee.
(b) Option Period. The period during which an option may be exercised
will be fixed by the Committee and will not exceed 10 years from the date the
option is granted (5 years in the case of an Incentive Stock Option granted to a
"ten percent shareholder").
(c) Exercise of Options. Unless otherwise determined by the Committee,
no option will become exercisable unless the person to whom the option was
granted remains in the continuous employ or service of the Company or a
Subsidiary for at least one year (or for such other period as the Committee may
designate) from the date the option is granted. Subject to earlier termination
of the option as provided herein, unless the Committee determines otherwise, the
option will become exercisable in accordance with the following schedule based
upon the number of full years of the optionee's continuous employment or service
with the Company or a Subsidiary following the date of grant:
Full Incremental Cumulative
Years of Continuous Percentage of Percentage of
Employment/ Option Option
Service Exercisable Exercisable
-------------------- ------------- -------------
Less than 1 0% 0%
1 20% 20%
2 20% 40%
3 20% 60%
4 20% 80%
5 or more 20% 100%
All or part of the exercisable portion of an option may be exercised at any time
during the option period, except that, without the consent of the Committee, no
partial exercise of an option may be for less than 100 shares. An option may be
exercised by transmitting to the Company (1) a written notice specifying the
number of shares to be purchased, and (2) payment of the exercise price (or, if
applicable, delivery of a secured obligation therefor), together with the
amount, if any, deemed necessary by the Committee to enable the Company to
satisfy its income tax withholding obligations with respect to such exercise
(unless other arrangements acceptable to the Company are made with respect to
the satisfaction of such withholding obligations).
(d) Payment of Exercise Price. The purchase price of shares of Common
Stock acquired pursuant to the exercise of an option granted under the Plan may
be paid in cash and/or such other form of payment as may be permitted under the
option agreement, including, without limitation, previously-owned shares of
Common Stock. The Committee may permit the payment of all or a portion of the
purchase price in installments (together with interest) over a period of not
more than 5 years.
(e) Rights as a Stockholder. No shares of Common Stock will be issued
in respect of the exercise of an option granted under the Plan until full
payment therefor has been made (and/or provided for where all or a portion of
the purchase price is being paid in installments). The holder of an option will
have no rights as a stockholder with respect to any shares covered by an option
until the date a stock certificate for such shares is issued to him or her.
Except as otherwise provided herein, no adjustments shall be made for dividends
or distributions of other rights for which the record date is prior to the date
such stock certificate is issued.
(f) Nontransferability of Options. No option shall be assignable or
transferrable except upon the optionee's death to a beneficiary designated by
the optionee in accordance with procedures established by the Committee or, if
no designated beneficiary shall survive the optionee, pursuant to the optionee's
will or by the laws of descent and distribution. During an optionee's lifetime,
options may be exercised only by the optionee or the optionee's guardian or
legal representative.
(g) Termination of Employment or Other Service. If an optionee
ceases to be employed by or to perform services for the Company and any
Subsidiary for any reason other than death or disability (defined below), then,
unless the Committee determines otherwise, each outstanding option granted to
him or her under the Plan will terminate on the date three months after the date
of such termination of employment or service. If an optionee's employment or
service is terminated by reason of the optionee's death or disability (or if the
optionee's employment or service is terminated by reason of his or her
disability and the optionee dies within one year after such termination of
employment or service), then each outstanding option granted to the optionee
under the Plan will terminate on the date one year after the date of such
termination of employment or service (or one year after the later death of a
disabled optionee) or, if earlier, the date specified in the option agreement.
For purposes hereof, the term "disability" means the inability of an optionee to
perform the customary duties of his or her employment or other service for the
Company or a Subsidiary by reason of a physical or mental incapacity which is
expected to result in death or be of indefinite duration.
(h) Maximum Option Grant. The maximum option grant which may be made
to an employee of the Company in any calendar year shall not cover more than
200,000 shares.
(i) Other Provisions. The Committee may impose such other conditions
with respect to the exercise of options, including, without limitation, any
conditions relating to the application of federal or state securities laws, as
it may deem necessary or advisable.
6. Capital Changes, Reorganization, Sale.
(a) Adjustments Upon Changes in Capitalization. The aggregate number
and class of shares for which options may be granted under the Plan, the number
and class of shares covered by each outstanding option and the exercise price
per share shall all be adjusted proportionately for any increase or decrease in
the number of issued shares of Common Stock resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend.
(b) Cash, Stock or Other Property for Stock. Except as otherwise
provided in this subparagraph, in the event of an Exchange Transaction (as
defined below), all optionees will be permitted to exercise their outstanding
options (whether or not otherwise exercisable) and any outstanding options not
exercised before the consummation of the Exchange Transaction will thereupon
terminate. Notwithstanding the preceding sentence, if, as part of the Exchange
Transaction, the shareholders of the Company receive capital stock of another
corporation ("Exchange Stock), and if the Board, in its sole discretion, so
directs, then all outstanding options will be converted into options to purchase
shares of Exchange Stock. The amount and price of the converted options will be
determined by adjusting the amount and price of the options granted hereunder on
the same basis as the determination of the number of shares of Exchange Stock
the holders of Common Stock will receive in the Exchange Transaction.
(c) Definition of Exchange Transaction. For purposes hereof, the term
"Exchange Transaction" means a merger (other than a merger of the Company in
which the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation,
reorganization (other than a mere reincorporation or the creation of a holding
company) or liquidation of the Company, as a result of which the Shareholders of
the Company receive cash, stock or other property in exchange for or in
connection with their shares of Common Stock.
(d) Fractional Shares. In the event of any adjustment in the number of
shares covered by any option pursuant to the provisions hereof, any fractional
shares resulting from such adjustment will be disregarded and each such option
will cover only the number of full shares resulting from the adjustment.
(e) Determination of Board to be Final. All adjustments under this
paragraph 6 shall be made by the Board, and its determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive. Unless an optionee agrees otherwise, any change or adjustment to an
Incentive Stock Option shall be made in such a manner so as not to constitute a
"modification" as defined in Section 424(h) of the Code and so as not to cause
the optionee's Incentive Stock Option issued hereunder to fail to continue to
qualify as an Incentive Stock Option.
7. Amendment and Termination of the Plan. The Board may amend or terminate
the Plan. Except as otherwise provided in the Plan with respect to equity
changes, any amendment which would increase the aggregate number of shares of
Common Stock as to which options may be granted under the Plan, materially
increase the benefits under the Plan, or modify the class of persons eligible to
receive options under the Plan shall be subject to the approval of the holders
of a majority of the Common Stock issued and outstanding. No amendment or
termination may affect adversely any outstanding option without the written
consent of the optionee.
8. No Rights Conferred. Nothing contained herein will be deemed to give any
individual any right to receive an option under the Plan or to be retained in
the employ or service of the Company or any Subsidiary.
9. Governing Law. The Plan and each option agreement shall be governed by
the laws of the State of Delaware.
10. Decisions and Determinations of Committee to be Final. Except to the
extent rights or powers under this Plan are reserved specifically to the
discretion of the Board, all decisions and determinations of the Committee are
final and binding.
11. Term of the Plan. The Plan shall be effective as of February 27, 1992,
the date on which it was adopted by the Board, subject to the approval of the
stockholders of the Company, which approval was granted on February 27, 1992.
The Plan will
terminate on February 26, 2002, the date ten years after the date of adoption by
the Board, unless sooner terminated by the Board. The rights of optionees under
the options outstanding at the time of the termination of the Plan shall not be
affected solely by reason of the termination and shall continue in accordance
with the terms of the option (as then in effect or thereafter amended).
EXHIBIT 4(b)
ALEXION PHARMACEUTICALS, INC.
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made as of the ___ day of _________, 199__, by and between
Alexion Pharmaceuticals, Inc., a Delaware corporation (the "Company") and
_____________________ (the "Optionee").
W I T N E S S E T H
WHEREAS, pursuant to the Alexion Pharmaceuticals, Inc. 1992 Stock Option
Plan (the "Plan"), the Company desires to grant to the Optionee and the Optionee
desires to accept an option to purchase shares of common stock, $.0001 par
value, of the Company (the "Common Stock") upon the terms and conditions set
forth in this agreement:
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants this day (the Grant Date) to the
Optionee an option to purchase _____________ shares of Common Stock, at a
purchase price of $___________ per share. This option is intended to be treated
as an option which is an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986.
2. Restrictions on Exercisability. Except as specifically provided
otherwise herein, the option will become exercisable in accordance with the
following schedule based upon the number of full years of the Optionee's
continuous employment or service with the Company or a subsidiary following the
Grant Date:
Full Years of Incremental Cumulative
Continuous Percentage of Percentage of
Employment/ Option Option
Service Exercisable Exercisable
------------- ------------- --------------
Less than 1 0% 0%
1 25% 25%
2 25% 50%
3 25% 75%
4 or more 25% 100%
No shares of Common Stock may be purchased hereunder unless the Optionee shall
have remained in the continuous employ or service of the Company or a subsidiary
for one year from the Grant Date. If the Optionee performs services for the
Company or a subsidiary in a capacity other than as a director or employee,
then, for purposes
hereof, those services will be deemed to be continuous until they are
terminated, and they will be deemed to be terminated at the time provided
therefor in the consulting or other agreement governing the performance of such
services or, if there is no such agreement, at the time the Company notifies the
Optionee that it no longer contemplates the utilization of such services. Unless
sooner terminated, the option will expire if and to the extent it is not
exercised within ten years from the Grant Date.
3. Exercise. The option may be exercised in whole or in part in
accordance with the above schedule by delivering to the Secretary of the Company
(a) a written notice specifying the number of shares to be purchased, and
(b) payment in full of the exercise price, together with the amount, if any,
deemed necessary by the Company to enable it to satisfy any income tax
withholding obligations with respect to the exercise (unless other arrangements,
acceptable to the Company, are made for the satisfaction of such withholding
obligation). The exercise price shall be payable by bank or certified check. The
Company may (in its sole and absolute discretion) permit all or part of the
exercise price to be paid with previously-owned shares of Common Stock, or in
installments (together with interest) evidenced by the Optionee's secured
promissory note.
4. Rights as Stockholder. No shares of Common Stock shall be sold or
delivered hereunder until full payment for such shares has been made (or, to the
extent payable in installments, provided for). The Optionee shall have no rights
as a stockholder with respect to any shares covered by the option until a stock
certificate for such shares is issued to him or her. Except as otherwise
provided herein, no adjustment shall be made for dividends of distributions of
other rights form which the record is prior to the date such stock certificate
is issued.
5. Nontransferability. The option is not assignable or transferable
except upon the Optionee's death to a beneficiary designated by the Optionee or,
if no designated beneficiary shall survive the Optionee, pursuant to the
Optionee's will and/or the laws of descent and distribution. During an
Optionee's lifetime, the option may be exercised only by the Optionee or the
Optionee's guardian or legal representative.
6. Termination of Service, Disability or Death. If the Optionee ceases
to be employed by or to perform services for the Company and any subsidiary for
any reason other than death or disability, then, unless sooner terminated under
the terms hereof, the option will terminate on the date three months after the
date of the Optionee's termination of employment or service. If the Optionee's
employment or service is terminated by reason of the Optionee's death or
disability (or if the Optionee's employment or services is terminated by reason
of his or her disability and the Optionee dies within one year after such
termination of employment or service), then, unless sooner terminated under the
terms hereof, the option will terminate on the date one year after the date of
such termination of employment or service (or one year after the Optionee's
later death).
7. Securities Restrictions. If the shares to be issued upon an
exercise of the option are not registered under the Securities Act of 1933,
then, as a further
condition of the Company's obligation to issue such shares, the Optionee may be
required to give a representation in writing that the Optionee is acquiring the
shares for his or her own account as an investment and not with a view to, or
for the sale in connection with, the distribution of such shares, and the
certificates representing such shares shall bear a legend to such effect as the
Company's counsel shall deem necessary or desirable. The option shall in no
event be exercisable and shares shall not be issued hereunder if, in the option
of counsel to the Company, such exercise and/or issuance would result in a
violation of federal or state securities laws.
8. Capital changes, Reorganizations, Etc.
a. In case of any post-Grant Date split-up or consolidation of
shares or any like capital adjustment, or the payment of stock dividend which
increases or decreases the number of outstanding shares of Common Stock,
appropriate adjustment shall be made to the number of shares and the exercise
price per share which may still be purchased under this agreement.
b. Upon a post-Grant Date merger (other than a merger of the
Company in which the holders of Common Stock immediately prior to the merger
have the same proportionate ownership of common stock in the surviving
corporation immediately after the merger), consolidation, sale of property or
stock, separation, reorganization (other than a mere reincorporation or the
creation of a holding company) or liquidation of the Company, as a result of
which the stockholders of the company receive cash, stock or other property in
exchange for or in connection with their shares of Common Stock (an "Exchange
Transaction"), the Optionee will be permitted to exercise his or her outstanding
options (whether or not otherwise exercisable) and any outstanding options not
exercised before the consummation of the Exchange Transaction will thereupon
terminate. Notwithstanding the preceding sentence, if, as part of the Exchange
Transaction, the shareholders of the Company receive capital stock of another
corporation ("Exchange Stock"), and if the Board, in its sole discretion, so
directs, then all outstanding options will be converted into options to purchase
shares of Exchange Stock. The Amount and price of the converted options will be
determined by adjusting the amount and price of the options granted hereunder on
the same basis as the determination of the number of shares of Exchange Stock
the holders of Common Stock will receive in the Exchange Transaction.
c. In the event of any adjustment in the number of shares covered
by any option pursuant to the provisions hereof, any fractional shares resulting
from such adjustment will be disregarded and each such option will cover only
the number of full shares resulting from the adjustment.
d. All adjustments under this paragraph 8 shall be made by the
Board, and its determination as to what adjustments shall be made, and the
extent thereof, shall be final, binding and conclusive. Unless the Optionee
agrees otherwise, any change or adjustment to the option shall be made in such a
manner so as not to constitute a "modification" as defined in Section 424(h) of
the Code and so as not to cause the Optionee's option to fail to continue to
qualify as an Incentive Stock Option.
9. No Employment Rights. Nothing in this agreement shall give the
Optionee any right to continue in the employ or service of the Company or a
subsidiary, or interfere in any way with the right of the Company to terminate
the employment or the service of the Optionee.
10. Provisions of the Plan. The provisions of the Plan shall govern if
and to the extent that there are inconsistencies between those provisions and
the provisions hereof. The Optionee acknowledges that he or she received a copy
of the Plan prior to the execution of this Agreement.
11. Administration. The committee appointed by the Board to administer
the Plan will have full power and authority to interpret and apply the
provisions of this agreement, and the decision of said committee as to any
matter arising under this agreement shall be binding and conclusive as to all
persons.
12. Miscellaneous.
a. This agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
b. This agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. This agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and may not be modified except by written instrument executed by the
parties.
IN WITNESS WHEREOF, this agreement has been executed as of the date
first above written.
Alexion Pharmaceuticals, Inc.
By:_________________________________
____________________________________
Optionee
EXHIBIT 4(c)
ALEXION PHARMACEUTICALS, INC.
STOCK OPTION AGREEMENT
AGREEMENT made as of the _________________ day of _________ 199_ by
and between Alexion Pharmaceuticals, Inc., a Delaware corporation (the
"Company") and ____________________ (the "Optionee").
W I T N E S S E T H
WHEREAS, pursuant to the Alexion Pharmaceuticals, Inc. 1992 Stock
Option Plan (the "Plan"), the Company desires to grant to the Optionee and the
Optionee desires to accept an option to purchase shares of common stock, $.0001
par value, of the Company (the "Common Stock") upon the terms and conditions set
forth in this agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants to the Optionee an option to
purchase ____________ shares of Common Stock, at a purchase price per share of
$___________. This option is intended to be treated as an option which does not
qualify a an incentive stock option ("NSO") within the meaning of Section 422 of
the Internal Revenue Code of 1986.
2. Exercisability. This option is immediately exercisable on the date
hereof.
3. Exercise. The option may be exercised in whole or in part in
accordance with the above schedule by delivering to the Secretary of the Company
(a) a written notice specifying the number of shares to be purchased, and
(b) payment in full of the exercise price, together with the amount, if any,
deemed necessary by the Company to enable it to satisfy any income tax
withholding obligations with respect to the exercise (unless other arrangements,
acceptable to the Company, are made for the satisfaction of such withholding
obligations). The exercise price shall be payable by bank or certified check.
The Company may (in its sole and absolute discretion) permit all or part of the
exercise price to be paid with previously-owned shares of Common Stock, or in
installments (together with interest) evidenced by the Optionee's secured
promissory note.
4. Rights as Stockholder. No shares of Common Stock shall be sold or
delivered hereunder until full payment for such shares has been made (or, to the
extent payable in installments, provided for). The Optionee shall have no rights
as a stockholder with respect to any shares covered by the option until a stock
certificate for such shares is issued to him or her. Except as otherwise
provided herein, no adjustment shall be made for dividends or distributions of
other rights for which the record date is prior to the date such stock
certificate is issued.
5. Nontransferability. The option is not assignable or transferable
except upon the Optionee's death to a beneficiary designated by the Optionee or,
if no designated beneficiary shall survive the Optionee, pursuant to the
Optionee's will and/or the laws of descent and distribution. During an
Optionee's lifetime, the option may be exercised only by the Optionee or the
Optionee's guardian or legal representative.
6. Termination of Service, Disability or Death. If the Optionee ceases
to be employed by or to perform services for the Company and any subsidiary for
any reason other than death or disability, then, unless sooner terminated under
the terms hereof, the option will terminate on the date three months after the
date of the Optionee's termination or employment or service. If the Optionee's
employment or serviced is terminated by reason of the Optionee's death or
disability (or if the Optionee's employment or service is terminated by reason
of his or her disability and the Optionee dies within one year after such
termination or employment or service), then, unless sooner terminated under the
terms hereof, the option will terminate on the date one year after the date of
such termination of employment or service (or one year after the Optionee's
later death).
7. Securities Restrictions. If the shares to be issued upon an
exercise of the option are not registered under the Securities Act of 1933,
then, as a further condition of the Company's obligation to issue such shares,
the Optionee may be require to give a representation in writing that the
Optionee is acquiring the shares for his or her own account as an investment and
with a view to, or for sale in connection with, the distribution of such shares,
and the certificates representing such shares shall bear a legend to such effect
as the company's counsel shall deem necessary or desirable.
8. Capital Changes, Reorganization, Etc.
(a) In case of any post-Grant Date split-up or consolidation of
shares or any like capital adjustment, or the payment of a stock dividend which
increases or decreases the number of outstanding shares of Common Stock,
appropriate adjustment shall be made to the number of shares and the exercise
price per share which may still be purchased under this agreement.
(b) Upon a post-Grant Date merger (other than a merger of the
Company in which the holders of Common Stock immediately prior to the merger
have the same proportionate ownership of common stock in the surviving
corporation immediately after the merger), consolidation, sale of property or
stock, separation, reorganization (other than a mere reincorporation or the
creation of a holding company) or liquidation of the Company, as a result of
which the stockholders of the Company receive cash, stock or other property in
exchange for or in connection with their shares of Common Stock an ("Exchange
Transaction"), the Optionee will be permitted to exercise his or her outstanding
option (whether or not otherwise exercisable) and any outstanding options not
exercised before the consummation of the Exchange Transaction will thereupon
terminate. Notwithstanding the preceding sentence, if, as part of the Exchange
Transaction, the shareholders of the Company
receive capital stock of another corporation ("Exchange Stock"), and if the
Board, in its sole discretion, so directs, then all outstanding options will be
converted into options to purchase shares of Exchange Stock. The amount and
price of the converted options will be determined by adjusting the amount and
price of the options granted hereunder on the same basis as the determination of
the number of shares of Exchange Stock and holders of Common Stock will receive
in the Exchange Transaction.
(c) In the event of any adjustment in the number of shares
covered by any option pursuant to the provisions hereof, any fractional shares
resulting from such adjustment will be disregarded and each such option will
cover only the number of full shares resulting from the adjustment.
(d) All adjustments under this paragraph 8 shall be made by the
Board, and its determination as to what adjustments shall be made, and the
extent thereof, shall be final, binding and conclusive.
9. No Employment Rights Nothing in this agreement shall give the
Optionee any right to continue in the employ or service of the Company or a
subsidiary, or interfere in any way with the right of the Company to terminate
the employment or service of the Optionee.
10. Provisions of Plan. The provisions of the Plan shall govern if an
to the extent that there are inconsistencies between those provisions and the
provisions hereof. The Optionee acknowledges that he or she has received a copy
of the Plan prior to the execution of this agreement.
11. Administration. The committee appointed by the Board to administer
the Plan or the Board, will have full power and authority to interpret and apply
the provisions of this agreement, and the decision of said committee as to any
matter arising under this agreement shall be binding and conclusive as to all
persons.
12. Termination of Grant. Prior to the Grant Date, the Board of
Directors if, and to the extent necessary, in order to successfully consummate
the Company's private placement, may not grant the option, and to that extent,
the Optionee will have no further rights hereunder.
13. Miscellaneous.
(a) This agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(b) This agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. This agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and may not be modified except by written instrument executed by the
parties.
IN WITNESS WHEREOF, this agreement has been executed as of the date
first above written.
Alexion Pharmaceuticals, Inc.
By:_____________________________
________________________________
Optionee
EXHIBIT 5
FULBRIGHT & JAWORSKI HOUSTON
L.L.P. WASHINGTON, D.C.
A Registered Limited Liability Partnership AUSTIN
666 Fifth Avenue SAN ANTONIO
New York, New York 10103 DALLAS
NEW YORK
telephone: 212/318-3000 LOS ANGELES
facsimile: 212/752-5958 LONDON
HONG KONG
April 4, 1997
Alexion Pharmaceuticals, Inc.
25 Science Park
New Haven, Connecticut 06511
Dear Sirs:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of Alexion
Pharmaceuticals, Inc. (the "Company"), relating to 1,800,000 shares of the
Company's Common Stock, $.0001 par value per share (the "Shares"), to be issued
under the Company's 1992 Stock Option Plan (the "Plan").
As counsel for the Company, we have examined such corporate records,
other documents, and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion, all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Shares
pursuant to the Plan and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for under the Plan in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not be construed as an admission that we
are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Very truly yours,
/s/ Fulbright & Jaworski
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated August 30, 1996
included in Alexion Pharmaceuticals, Inc.'s Form 10-K for the year ended July
31, 1996 and to all references to our Firm included in this registration
statement.
/S/ ARTHUR ANDERSEN LLP
---------------------
ARTHUR ANDERSEN LLP
Hartford, Connecticut
April 4, 1997