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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1997
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALEXION PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3648318
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
25 SCIENCE PARK
NEW HAVEN, CT 06511
(203) 776-1790
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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LEONARD BELL, M.D.
ALEXION PHARMACEUTICALS, INC.
25 SCIENCE PARK
NEW HAVEN, CT 06511
(203) 776-1790
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
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
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plane, please check the following
box: |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
STOCK PURCHASE AGREEMENT
Alexion Pharmaceuticals, Inc.
25 Science Park
New Haven, CT 06511
Ladies & Gentlemen:
The undersigned, ________________________ (the "Investor"), hereby confirms
its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement') is made as of June 12,
1997 between Alexion Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,450,000
shares of Common Stock of the Company (the "Stock"), subject to adjustment by
the Company's Board of Directors.
3. The Company and the Investor agree that the Investor will purchase and
the Company will sell, for a purchase price of $7.75 per share, or an aggregate
purchase price of $__________, ___________ shares pursuant to the Terms and
Conditions for Purchase of Shares attached hereto as Annex I and incorporated
herein by reference as if fully set forth herein. Unless otherwise requested by
the Investor, certificates representing the shares purchased by the Investor
will be registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(If no exceptions, write "none." If left blank,
response will be deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
INVESTOR
___________________________________________
Name: _____________________________________
By: _______________________________________
Title: ____________________________________
Address: __________________________________
___________________________________________
Tax ID No.: _______________________________
Contact name: _____________________________
Telephone: ________________________________
Name in which shares should be
registered (if different): ________________
AGREED AND ACCEPTED:
- --------------------
ALEXION PHARMACEUTICALS, INC.
- --------------------------------------------
By: Leonard Bell, M.D.
Title: President and Chief Executive Officer
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
1,450,000 shares of the Common Stock, $.0001 par value (the "Stock"), of the
Company. The Company reserves the right to increase or decrease this number.
2. Agreement to Sell and Purchase the Stock. At the Closing (as defined in
Section 3), the Company will sell to the Investor, and the Investor will
purchase from the Company, upon the terms and conditions hereinafter set forth,
the number of shares of Stock set forth on the signature page hereto at the
purchase price set forth on such signature page.
The Company proposes to enter into this same form of purchase agreement
with certain other investors (the "Other Investors") and expects to complete
sales of the Stock to them. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the "Investors," and this Agreement and
the agreements executed by the Other Investors are hereinafter sometimes
collectively referred to as the "Agreements." The term "Placement Agent" shall
mean Robertson Stephens & Company LLC.
3. Delivery of the Stock at Closing. The completion of the purchase and
sale of the Stock (the "Closing") shall occur at a place and time (the "Closing
Date") specified by the Company and the Placement Agent, not later than 90 days
after the date the Registration Statement (as hereinafter defined) is filed, and
of which the Investors will be notified in advance by the Placement Agent. At
the Closing, the Company shall deliver to the Investor one or more stock
certificates representing the number of shares of Stock set forth on the
signature page hereto, each such certificate to be registered in the name of the
Investor or, if so indicated on the signature page hereto, in the name of a
nominee designated by the Investor.
The Company's obligation to close the transaction shall be subject to the
following conditions, any one or more of which may be waived by the Company: (a)
receipt by the Company of a certified or official bank check or wire transfer of
funds in the full amount of the purchase price for the Stock being purchased
hereunder; (b) completion of the purchases and sales under the Agreements with
Other Investors; and (c) the accuracy of the representations and warranties made
by the Investors and the fulfillment of those undertakings of the Investors to
be fulfilled prior to the Closing.
The Investor's obligation to close the transaction shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least
500,000 shares of Stock; (b) the Company shall have filed a registration
statement within five (5) business days of the date on which all of the
Agreements are executed (the "Pricing Date"), the Company shall have received an
indication
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from the Securities and Exchange Commission ("SEC") that the SEC has no further
comments, and the Company shall have submitted an acceleration request providing
for the Registration Statement to be declared effective at a time immediately
following the Closing and on or prior to the 90th day after the date of its
filing; and (c) receipt by the Placement Agent of legal opinions from the
Company's counsel and patent counsel and of a comfort letter from the Company's
Independent Auditors. The Investor's obligations hereunder are expressly not
conditioned on the purchase by any or all of the Other Investors of the Stock
that they have agreed to purchase from the Company. The Company may sign Stock
Purchase Agreements with respect to sales of stock to Other Investors on dates
subsequent to the Pricing Date, provided that all such Agreements shall have
been executed on or prior to the date on which the Registration Statement is
filed with the SEC.
4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Purchaser as follows:
4.1. Organization. Each of the Company and its Subsidiaries (as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")),
if any, is duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization. Each of the Company and its
Subsidiaries has full power and authority to own, operate and occupy its
properties and to conduct its business as presently conducted and as described
in the private placement memorandum, dated May 16, 1997 distributed in
connection with the sale of the Stock (including the documents incorporated by
reference therein, the "Placement Memorandum") and is registered or qualified to
do business and in good standing in each jurisdiction in which it owns or leases
property or transacts business and where the failure to be so qualified would
have a material adverse effect upon the business, financial condition,
properties or operations of the Company and its Subsidiaries, taken as a whole.
4.2. Due Authorization. The Company has all requisite power and authority
to execute, deliver and perform its obligations under the Agreements, and the
Agreements have been duly authorized and validly executed and delivered by the
Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3. Non-Contravention. The execution and delivery of the Agreements, the
issuance and sale of the Stock to be sold by the Company thereunder, the
fulfillment of the terms of the Agreements and the consummation of the
transactions contemplated thereby will not conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, any
material agreement or instrument to which the Company or any Subsidiary is a
party or by which it is bound or the charter, by-laws or other organizational
documents of the Company or any Subsidiary nor result in the creation or
imposition of any lien, encumbrance, claim, security
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interest or restriction whatsoever upon any of the material properties or assets
of the Company or any Subsidiary or an acceleration of indebtedness pursuant to
any obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or any material indenture,
mortgage, deed of trust or any other agreement or instrument to which the
Company or any Subsidiary is a party or by which any of them is bound or to
which any of the property or assets of the Company or any Subsidiary is subject,
nor conflict with, or result in a violation of, any law, administrative
regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company or any Subsidiary. No consent,
approval, authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other governmental
body in the United States is required for the valid issuance and sale of the
Stock to be sold pursuant to the Agreements, other than such as have been or
will be made or obtained.
4.4. Capitalization. The capitalization of the Company as of May 16,
1997 is as set forth in the Placement Memorandum. The Company has not issued any
capital stock since that date other than as contemplated by the Placement
Memorandum. The Stock to be sold pursuant to the Agreements have been duly
authorized, and when issued and paid for in accordance with the terms of the
Agreements will be validly issued, fully paid and nonassessable. The outstanding
shares of capital stock of the Company have been duly and validly issued and are
fully paid and nonassessable. Except as set forth in or contemplated by the
Placement Memorandum, there are no outstanding rights (including, without
limitation, preemptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any Subsidiary, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any Subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options. The Company
owns the entire equity interest in each of its Subsidiaries, other than as
contemplated by the Placement Memorandum.
4.5. Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened or
contemplated to which the Company or any Subsidiary is or may be a party or of
which the business or property of the Company or any Subsidiary is or may be
subject that is not disclosed in the Placement Memorandum.
4.6. No Violations. Neither the Company nor any Subsidiary is in violation
of its charter, bylaws, or other organizational document, in violation of any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary, which violation, individually or in the aggregate, would have a
material adverse effect on the business or financial condition of the Company
and its Subsidiaries, taken as a whole, or is in default in any material respect
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other agreement or instrument to which the
Company or any Subsidiary is a party or by which the Company or any Subsidiary
is bound or by which the properties of the Company or any Subsidiary are bound
or affected, and there exists no condition which, with the passage of time or
otherwise, would
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constitute a material default under any such document or instrument or result in
the imposition of any material penalty or the acceleration of any material
indebtedness.
4.7. Governmental Permits, Etc. Each of the Company and its Subsidiaries
has all necessary franchises, licenses, certificates and other authorizations
from any foreign, federal, state or local government or governmental agency,
department, or body that are currently necessary for the operation of the
business of the Company and its Subsidiaries as currently conducted and as
described in the Placement Memorandum, the absence of which would have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
4.8. Intellectual Property. Each of the Company and its Subsidiaries owns
or possesses sufficient rights to use all material patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets and know-how
described or referred to in the Placement Memorandum as owned or used by it or
that are necessary for the conduct of its business as now conducted and as
proposed to be conducted as now conducted or (to the Company's knowledge based
on the current stage of development of the Company's products and, subject to
the matters discussed under "Risk Factors" in the Placement Memorandum) as
proposed to be conducted as described in the Placement Memorandum; except as
described in the Placement Memorandum, neither the Company nor any of its
Subsidiaries has received any notice of, or has any knowledge of, any
infringement of or conflict with asserted rights of others with respect to any
patent, patent right, trademark, copyright, invention, trade secret or know-how
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company and its Subsidiaries considered as one enterprise.
4.9. Financial Statements. The financial statements of the Company and the
related notes contained in the Placement Memorandum present fairly the financial
position of the Company as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified. Such financial
statements (including the related notes) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods therein specified, except as disclosed in the Placement
Memorandum. The other financial information contained in the Placement
Memorandum has been prepared on a basis consistent with the financial statements
of the Company.
4.10. No Material Adverse Change. Subsequent to the respective dates as of
which information is given in the Placement Memorandum, and except as
contemplated in the Placement Memorandum, the Company and its Subsidiaries taken
as a whole have not incurred any material liabilities or obligations, direct or
contingent, other than in the ordinary course of business, and there has not
been any material adverse change in their consolidated condition (in each case,
financial or other), results of operations, business, prospects, key personnel
or capitalization.
4.11. Placement Memorandum. The information contained in the Placement
Memorandum does not contain an 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.
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4.12. Additional Information. The Company has filed in a timely manner all
documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") during the 12 months preceding the
date of this Agreement. The following documents complied in all material
respects with the SEC's requirements as of their respective filing dates, and
the information contained therein as of the date thereof did not contain an
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:
(a) The Company's Annual Report on Form 10-K for the year ended July 31,
1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 1997;
(c) The Company's proxy statement in connection with its Annual Meeting of
Stockholders on December 13, 1996;
(d) The Company's Current Report on Form 8-K dated February 14, 1997;
(e) The Company's prospectus dated April 7, 1997 from its resale
Registration Statement on Form S-1; and
(b) all other documents, if any, filed by the Company with the Securities
and Exchange Commission (the "Commission") since April 7, 1997
pursuant to the reporting requirements of the Exchange Act.
4.13 Listing. The Company shall comply with all requirements of the
National Association of Securities Dealers, Inc. with respect to the issuance of
the Stock and the listing thereof on the Nasdaq National Market.
4.14 Lock-up Agreements. Lock-up Agreements with the Placement Agent have
been executed by each of the Company's Officers and Directors agreeing that such
individual will not sell, offer, contract to sell, pledge, grant any option to
purchase or otherwise dispose of any shares of the Company's Common Stock prior
to the 90th day after the Registration Statement is declared effective.
5. Representations, Warranties and Covenants of the Investor.
(a) The Investor represents and warrants to, and covenants with, the
Company that: (i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act of 1933, as amended (the "Securities Act")
and the Investor is also knowledgeable, sophisticated and experienced in making,
and is qualified to make decisions with respect to
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investments in shares presenting an investment decision like that involved in
the purchase of the Stock, including investments in securities issued by the
Company and investments in comparable companies, and has requested, received,
reviewed and considered all information it deemed relevant in making an informed
decision to purchase the Stock; (ii) the Investor is acquiring the number of
shares of Stock set forth on the signature page hereto in the ordinary course of
its business and for its own account for investment only and with no present
intention of distributing any of such shares of Stock or any arrangement or
understanding with any other persons regarding the distribution of such shares
of Stock; (iii) the Investor will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the shares of Stock except in
compliance with the Securities Act, applicable state securities laws and the
respective rules and regulations promulgated thereunder; (iv) the Investor has
answered all questions on the signature page hereto for use in preparation for
the Registration Statement and the answers thereto are true and correct as of
the date hereof and will be true and correct as of the Closing Date; (v) the
Investor will notify the Company immediately of any change in any of such
information until such time as the Investor has sold all of its shares of Stock
or until the Company is no longer required to keep the Registration Statement
effective; and (vi) the Investor has, in connection with its decision to
purchase the number of shares of Stock set forth on the signature page hereto,
relied only upon the representations and warranties of the Company contained
herein.
(b) The Investor acknowledges, represents and agrees that no action has
been or will be taken in any jurisdiction outside the Untied States by the
Company or the Placement Agent that would permit an offering of the shares of
Stock, or possession or distribution of offering materials in connection with
the issue of the shares of Stock, in any jurisdiction outside the United States
where action for that purpose is required. Each Investor outside the United
States will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers shares of Stock or
has in its possession or distributes any offering material, in all cases at its
own expense. The Placement Agent is not authorized to make any representation or
use any information in connection with the issue, placement, purchase and sale
of the shares of Stock other than as contained in the Placement Memorandum.
(c) The Investor hereby covenants with the Company not to make any sale of
the shares of Stock without complying with the provisions of this agreement,
including Section 7.2 hereof, and without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied. The Investor
acknowledges that there may occasionally be times when the Company, based on the
advice of its counsel, determines that it must suspend the use of the prospectus
forming a part of the Registration Statement until such time as an amendment to
the Registration Statement has been filed by the Company and declared effective
by the Commission or until the Company has amended or supplemented such
prospectus.
(d) The Investor further represents and warrants to, and covenants with,
the Company that (i) the Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement, and (ii) upon the execution and delivery of
this Agreement, this Agreement shall constitute a valid and binding
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obligation of the Investor enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Investors herein may be legally unenforceable.
(e) Investor will not, prior to the effectiveness of the Registration
Sstatement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge
or grant any right with respect to (collectively, a "Disposition"), the Common
Sstock of the Company, nor will Investor engage in any hedging or other
transaction which is designed to or could reasonably be expected to lead to or
result in a Disposition of Common Stock of the Company by the Investor or any
other person or entity. Such prohibited hedging or other transactions would
include without limitation effecting any short sale or having in effect any
short position (whether or not such sale or position is against the box and
regardless of when such position was entered into) or any purchase, sale or
grant of any right (including without limitation any put or call option) with
respect to the Common stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common stock of the Company.
(f) The Investor understands that nothing in the Placement Memorandum, this
Agreement or any other materials presented to the Investor in connection with
the purchase and sale of the Stock constitutes legal, tax or investment advice.
The Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Stock.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company
and the Investor herein shall survive the execution of this Agreement, the
delivery to the Investor of the shares of Stock being purchased and the payment
therefor.
7. Registration of the Stock; Compliance with the Securities Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) use its best efforts, subject to receipt of necessary information from
Investors, to prepare and file with the Commission, within five (5) business
days of the Pricing Date, a Registration Statement on Form S-3 (the
"Registration Statement") to enable the sale of the Stock by the Investor from
time to time through the automated quotation system of the Nasdaq National
Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from
the Investor, to cause the Registration Statement to become effective within 90
days after the Registration Statement is filed by the Company;
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(c) prepare and file with the Commission such amendments and supplements to
the Registration Statement and the prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective for a period not
exceeding, with respect to each Investor's shares purchased hereunder, the
earlier of (i) the second anniversary of the Closing Date, (ii) such time after
the first anniversary of the Closing Date when such Investor's shares of Stock
purchased hereunder and then owned by such Investor represent no more than one
percent of the Company's outstanding Common Stock, or (iii) such time as all
shares purchased by such Investor in this offering have been sold pursuant to a
registration statement.
(d) furnish to the Investor with respect to the Stock registered under the
Registration Statement (and to each underwriter, if any, of such Stock) such
number of copies of prospectuses and preliminary prospectuses in conformity with
the requirements of the Securities Act and such other documents as the Investor
may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Stock by the Investor, provided, however, that
the obligation of the Company to deliver copies of prospectuses or preliminary
prospectuses to the Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor will comply with the
applicable provisions of the Securities Act and of such other securities or blue
sky laws as may be applicable in connection with any use of such prospectuses or
preliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in
states specified in writing by the Investor, provided, however, that the Company
shall not be required to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or has not so consented;
and
(f) bear all expenses in connection with the procedures in paragraph (a)
through (e) of this Section 7.1 and the registration of the Stock pursuant to
the Registration Statement, other than fees and expenses, if any, of counsel or
other advisers to the Investor or Other Investors.
The Company understands that the Investor disclaims being an
underwriter, but the Investor being deemed an underwriter shall not relieve the
Company of any obligations it has hereunder.
7.2 Transfer of Stock After Registration.
(a) The Investor agrees that it will not effect any disposition of the
Stock or its right to purchase the Stock that would constitute a sale within the
meaning of the Securities Act except as contemplated in the Registration
Statement referred to in Section 7.1 and described below, and that it will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding the Investor or its Plan of Distribution.
(b) The Investor agrees that to sell shares pursuant to the Registration
Statement, the Investor will:
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(i) The Investor must notify the Company three (3) business days prior to
sale through the Company's counsel, Fulbright & Jaworski L.L.P., at the address
provided in Section 9(b) hereto, of its intent to sell, so as to confirm that no
event has occurred or is expected to occur which would make the Registration
Statement false or misleading, and to ensure that the Registration Statement in
its possession is current and has not been suspended. The Company may refuse to
permit the Investor to resell pursuant to the Registration Statement, provided
that it must notify the Investor in writing within three (3) business days that
such as sale would violate federal securities laws unless the Registration
Statement is updated. In such an event, the Company shall use its best efforts
to amend the Registration Statement if necessary and take all other actions
necessary to allow such sale under the federal securities laws within 10
business days of Investor's initial notification, and shall notify the Investor
promptly after it has determined that such sale has become permissible under the
federal securities laws. Notwithstanding the foregoing, within any twelve (12)
month period the Company shall not, except upon advice of counsel as to the
necessity pursuant to federal securities laws exercise its right to refuse to
permit resale of any shares of Stock pursuant to the Registration Statement (i)
more than three (3) times or (ii) for an aggregate period in excess of
forty-five (45) days. Each Investor hereby covenants and agrees that it will not
sell any shares of Stock pursuant to the Registration Statement during the
periods the Registration Statement is withdrawn as set forth in this Section.
(ii) If the Company or its counsel does not, within such three business
days, notify the Investor that it is exercising its right to delay such sale,
the investor may proceed with such sale provided that it arranges for delivery
of a current prospectus to the transferee. Upon receipt of a request therefor,
the Company has agreed to provide an adequate number of current prospectuses to
each investor and to supply copies to any other parties requiring such
prospectuses.
(iii) The Investor must also deliver to the Company's counsel a Notice of
Sale substantially in the form attached hereto as Exhibit A, so that the shares
may be properly transferred.
7.3 Indemnification. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" shall include the Investor and any
affiliate of such Investor;
(ii) the term "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 7.1;
(iii) the term "untrue statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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(a) The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any losses, claims, damages or liabilities to which
such Selling Stockholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any untrue
statement of a material fact contained in the Registration Statement on the
effective date thereof, or arise out of any failure by the Company to fulfill
any undertaking included in the Registration Statement and the Company will
reimburse such Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, or preparing to defend any such action, proceeding
or claim, provided, however, that the Company shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of, or
is based upon, an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in
preparation of the Registration Statement, or the failure of such Selling
Stockholder to comply with the covenants and agreements contained in Sections
5(c) or 7.2 hereof respecting sale of the Stock or any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was delivered
to the Investor prior to the pertinent sale or sales by the Investor.
(b) The Investor agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 5(c) or 7.2 hereof
respecting sale of the Stock, or any untrue statement of a material fact
contained in the Registration Statement on the effective date thereof if such
untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Investor specifically for use in
preparation of the Registration Statement, and the Investor will reimburse the
Company (or such officer, director or controlling person), as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim.
(c) Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 7.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall be entitled to participate therein, and, to the extent
it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense thereof,
such indemnifying person shall not be liable to such indemnified person for any
legal expenses subsequently incurred by such indemnified person in connection
with the defense thereof, provided, however, that if there exists or shall exist
a conflict of interest that
11
would make it inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the indemnified
person shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, however, that no indemnifying person shall be
responsible for the fees and expenses of more than one separate counsel for all
indemnified parties.
(d) If the indemnification provided for in this Section 7.3 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Investors on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or a Investor on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Investors agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Investors were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include 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 subsection (d), no
Investor shall be required to contribute any amount in excess of the amount by
which the net amount received by the Investor from the sale of the Stock to
which such loss relates exceeds the amount of any damages which such Investor
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission r 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 Investors obligations in this subsection to
contribute are several in proportion to their sales of shares of Stock to which
such loss relates and not joint.
7.5 Termination of Conditions and Obligations. The conditions precedent
imposed by Section 5 or this Section 7 upon the transferability of the Stock
shall cease and terminate as to any particular number of the shares of Stock
when such Stock shall have been effectively registered under the Securities Act
and sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Stock or at
such time as an opinion of counsel satisfactory to the Company shall have been
rendered to the effect that such conditions are not necessary in order to comply
with the Securities Act.
12
7.6 Information Available. So long as the Registration Statement is
effective covering the resale of Stock owned by the Investor, the Company will
furnish to the Investor:
(a) as soon as practicable after available one copy of (i) its Annual
Report to Stockholders (which Annual Report shall contain financial statements
audited in accordance with generally accepted accounting principles by a
national firm of certified public accountants), (ii) if not included in
substance in the Annual Report to Stockholders, its Annual Report on Form 10-K,
(iii) if not included in substance in its Quarterly Reports to Stockholders, its
Quarterly Reports on Form 10-Q, and (iv) a full copy of the particular
Registration Statement covering the Stock (the foregoing, in each case,
excluding exhibits);
(b) upon the reasonable request of the Investor, all exhibits excluded
by the parenthetical to subparagraph (a)(iv) of this Section 7.6 and all other
information that is made available to stockholders; and
(c) upon the reasonable request of the Investor, an adequate number of
copies of the prospectuses to supply to any other party requiring such
prospectuses; and the Company, upon the reasonable request of the Investor, will
meet with the Investor or a representative thereof at the Company's headquarters
to discuss all information relevant for disclosure in the Registration Statement
covering the Stock and will otherwise cooperate with any Investor conducting an
investigation for the purpose of reducing or eliminating such Investor's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters; provided, that, the
Company shall not be required to disclose any confidential information to or
meet at its headquarters with any Investor until and unless the Investor shall
have entered into a confidentiality agreement in the form and substance
reasonably satisfactory to the Company with the Company with respect thereto.
8. Placement Agent's Fee. The Investor acknowledges that the Company
intends to pay to the Placement Agent a fee in respect of the sale of the Stock
to the Investor.
9. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage
prepaid, and shall be deemed given when so mailed and shall be delivered as
addressed as follows:
(a) if to the Company, to:
Alexion Pharmaceuticals, Inc.
25 Science Park, Suite 360
New Haven, Connecticut 06511
Attn: David W. Keiser or Barry Luke
Phone: 203-776-1790
Telecopy: 203-776-2089
13
(b) with a copy mailed to:
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, NY 10103
Attn: Lawrence Spector or Merrill M. Kraines
Phone: 212-318-3000
Telecopy: 212-752-5958
(c) if to the Investor, at its address on the signature page hereto, or
at such other address or addresses as may have been furnished to
the Company in writing.
10. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
11. Headings. The headings of the various section of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
12. Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the federal law of the
United States of America.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
14
Exhibit A
---------
Date:_________________________
Lawrence Spector, Esq. or Merrill Kraines, Esq.
Fulbright & Jaworski L.L.P.
666 Fifth avenue
New York, NY 10103
Re: Alexion Pharmaceuticals, Inc.
INVESTOR'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
[official name of shareholder] ______________________________________________
("Shareholder") hereby certifies that Shareholder has sold [number]___________
shares of Alexion Pharmaceuticals, Inc. Common Stock on [date] ________________
in accordance with registration statement number [fill in number or otherwise
identify registration statement] ___________________and the requirements of
delivering a current prospectus has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser
(Individual or Institution): __________________________________
Name of Individual representing
Purchaser (if an Institution): ________________________________
Title of Individual representing
Purchaser (if an Institution): ________________________________
Signature by:
Individual Purchaser or
Individual representing Purchaser: ____________________________
INSTRUCTION SHEET FOR INVESTOR
(to be read in conjunction with the entire Stock Purchase Agreement)
A. Complete the following items in the Stock Purchase Agreement:
1. Provide the information regarding the Investor requested on the
signature page (page 1). The Agreement must be executed by an individual
authorized to bind the Investor.
2. Return the signed Stock Purchase Agreement to:
Clark N. Callander
Robertson, Stephens & Company
555 California Street, Suite 2600
San Francisco, CA 94104
Telephone: (415) 781-9700
Facsimile: (415) 693-339-3781-0278
An executed original Purchase Agreement or a telecopy thereof must be
received by 5:00 p.m. California time on a date to be determined and distributed
to the Investor at a later date.
B. Instructions regarding the transfer of funds for the purchase of Shares will
be telecopied to the Investor by the Placement Agents at a later date.
C. To resell the Stock after the Registration Statement covering the Stock is
effective:
(i) The Investor must notify the Company three (3) business days prior to
sale through the Company's counsel, Fulbright & Jaworski L.L.P., of its intent
to sell, so as to confirm that no event has occurred or is expected to occur
which would make the Registration Statement false or misleading, and to ensure
that the registration statement in its possession is current and has not been
suspended. The Company may refuse to permit the Investor to resell pursuant to
the Registration Statement, provided that it must notify the Investor in writing
within three (3) business days that such as sale would violate federal
securities laws unless the Registration Statement is updated. In such an event,
the Company shall use its best efforts to amend the Registration Statement if
necessary and take all other actions necessary to allow such sale under the
federal securities laws within 10 business days of Investor's initial
notification, and shall notify the Investor promptly after it has determined
that such sale has become permissible under the federal securities laws.
Notwithstanding the foregoing, within any twelve (12) month period the Company
shall not except upon advice of counsel as to the necessity pursuant to federal
securities laws exercise its right to refuse to permit resale of any shares of
Stock pursuant to the Registration Statement (i) more than three (3) times or
(ii) for an aggregate period in excess of forty-five (45) days. Each Investor
agreed that it will not sell any shares of Stock pursuant to the Registration
Statement during the periods the Registration Statement is withdrawn.
(ii) If the Company or its counsel does not, within such three business
days, notify the Investor that it is exercising its right to delay such sale,
the investor may proceed with such sale provided that it arranges for delivery
of a current prospectus to the transferee. Upon receipt of a request therefor,
the Company has agreed to provide an adequate number of current prospectuses to
each investor and to supply copies to any other parties requiring such
prospectuses.
(iii) The Investor must also deliver to the Company's counsel a Notice of
Sale in the form attached as Exhibit A to the Stock Purchase Agreement, so that
the shares may be properly transferred.
FULBRIGHT & JAWORSKI
L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103-3198
HOUSTON
WASHINGTON, D.C.
AUSTIN
SAN ANTONIO
DALLAS
NEW YORK
LOS ANGELES
TELEPHONE: 212/318-3000 LONDON
FACSIMILE: 212/752-5958 HONG KONG
WRITER'S DIRECT DIAL NUMBER:
June 19, 1997
Alexion Pharmaceuticals, Inc.
25 Science Park
New Haven, CT 06511
Dear Sirs:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement"), filed by Alexion Pharmaceuticals, Inc. (the "Company") on behalf of
certain selling stockholders (the "Selling Stockholders") with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to 1,888,808 shares of the Company's Common Stock, $.0001 par value (the "Common
Shares") and 85,936 shares of Common Stock issuable upon exercise of warrants
(the "Warrant Shares"), representing an aggregate of 1,974,744 shares of Common
Stock (the "Shares"), to be sold by the Selling Stockholders.
As counsel for the Company, we have examined such corporate records,
documents and such questions of law as we have considered necessary or
appropriate for purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion the Common Shares to be sold by the
Selling Stockholders have been duly and validly authorized, have been legally
issued, and are fully paid and nonassessable, and the Warrant Shares have been
duly and validly authorized and, subsequent to the exercise of the Warrants and
payment of the exercise price by the Selling Stockholders, will be legally
issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to this firm under the caption "Legal Matters" in
the prospectus contained therein and elsewhere in the Registration Statement and
prospectus. This consent is not to be construed as an admission that we are a
party whose consent is required to be filed with the Registration Statement
under the provisions of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
ARTHUR ANDERSEN LLP
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
Hartford, Connecticut
June 17, 1997