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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 9, 1998
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 plan, 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, Biotech Target S.A. (the "Investor"), hereby confirms its
agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of March 4,
1998 between Alexion Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 670,000 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 $13.175 per share, or an
aggregate purchase price of $8,827,250, 670,000 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, except for (1) the shares of
Series B Preferred Stock purchased by the Investor and the Common Stock issuable
upon conversion thereof or as payment as a dividend thereon, and (2) 147,500
shares of Common Stock, and (c) it has no direct or indirect affiliation or
association with any NASD member. Exceptions:
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(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.
BIOTECH TARGET S.A.
By: /s/ A. Bremer /s/ A. Hove
----------------------------------------------
Name: A. Bremer A. Hove
Title: Signatory Authority Signatory Authority
Address: Swiss Bank Tower, Obarie Street,
Panama, Panama
Tax ID No.: 000 000
Contact name:
Telephone:
Name in which shares should be
registered (if different):
AGREED AND ACCEPTED:
ALEXION PHARMACEUTICALS, INC.
By: /s/ Leonard Bell
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Name: Leonard Bell, M.D.
Title: President and Chief Executive Officer
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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
670,000 shares of the Common Stock, $.0001 par value (the "Stock"), of the
Company.
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 Stock at the purchase price set forth on the signature page hereto.
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, not later than 90 days after the date the
Registration Statement (as hereinafter defined) is filed, and of which the
Investor will be notified in advance by the Company. 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; and (b) the accuracy of the representations and warranties made by
the Investor and the fulfillment of those undertakings of the Investor to be
fulfilled prior to the Closing.
The Investor's obligation to close the transaction shall be subject to the
following condition: the Company shall have filed a registration statement
within ten (10) business days of the date on which the Agreement is executed
(the "Pricing Date") and the Registration Statement shall have been declared
effective by the Securities and Exchange Commission ("SEC") on or prior to the
90th day after the date of its filing. The Investor acknowledges that the
Closing shall occur simultaneously with the SEC's granting of the effectiveness
of the Registration Statement.
4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Investor as follows:
4.1. Organization. The Company is duly organized and validly existing in
good standing under the laws of the State of Delaware. The Company has full
power and authority to own, operate and occupy its properties and conduct its
business as presently conducted and as described in its Annual Report on Form
10-K for the year ended July 31, 1997 (the "10-K"), the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended October 31, 1997, and the
Company's Proxy Statement dated
November 13, 1997 relating to the Company's 1998 Annual Meeting of Stockholders;
the foregoing filings constitute all documents filed by the Company since the
date of the 10-K with the Securities and Exchange Commission (the "SEC") under
the Securities Exchange Act of 1934, as amended (all such documents are
hereinafter referred to as the "1934 Act Filings"), 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. The Company has no
subsidiaries.
4.2. Due Authorization. The Company has all requisite power and authority
to execute, deliver and perform its obligations under this Agreement, and this
Agreement has been duly authorized and validly executed and delivered by the
Company and constitutes the legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its 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 Agreement, the
issuance and sale of the Stock to be sold by the Company hereunder, the
fulfillment of the terms of the Agreement and the consummation of the
transactions contemplated hereby 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 is a party or by which it
is bound or the charter, by-laws or other organizational documents of the
Company, nor result in the creation or imposition of any lien, encumbrance,
claim, security interest or restriction whatsoever upon any of the material
properties or assets of the Company 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 is a party or by which it is bound or to which any of the property or
assets of the Company 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.
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 Securities, other than such as have been or will be made or
obtained.
4.4. Capitalization. The capitalization of the Company as of July 31, 1997
is as set forth in the 10-K. The Company has not issued any capital stock since
that date other than as contemplated by or described in the 1934 Act Filings,
including the issuance in March 1998 of shares of Common Stock in conversion of
the Company's
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Series B Preferred Stock and payment of dividends thereon. At March 4, 1998 the
Company had outstanding 10,551,888 shares of Common Stock, holds in treasury
11,875 shares of Common Stock and has outstanding options and warrants to
purchase 1,599,586 and 220,000 shares of Common Stock, respectively. The Stock
to be sold pursuant to the Agreement has been duly authorized, and when issued
and paid for in accordance with the terms of the Agreement, will be validly
issued, fully paid and nonassessable. All outstanding shares of capital stock of
the Company have been duly and validly issued and are fully paid and
nonassessable. Except as set forth above 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 contract,
commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company, any such convertible or
exchangeable securities or any such rights, warrants or options, except for the
rights granted to the holders of Common Stock pursuant to the Rights Agreement,
dated February 14, 1997, by and between the Company and Continental Stock
Transfer & Trust Company.
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 is or may be a party or of which the business
or property of the Company is or may be subject that is not disclosed in the
1934 Act Filings, and to the Company's knowledge no basis exists for any (i)
legal proceeding by or against the Company or (ii) governmental proceeding or
investigation of the Company.
4.6. No Violations. The Company is not in violation of its charter, bylaws,
or other organizational document, in violation of any law, administrative
regulation, ordinance, order, judgment or decree of any court or governmental
agency, arbitration panel or authority applicable to the Company, except for any
violations which, individually or in the aggregate, would have a material
adverse effect on the business or financial condition of the Company. The
Company is not 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 is a party or by which the
Company is bound or by which the properties of the Company are bound or
affected, and there exists no condition which, with the passage of time or
otherwise, would 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. The Company has all necessary franchises,
licenses, permits, 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 as
currently conducted and as described in the 1934 Act Filings, the absence of
which would have a material adverse effect on the Company.
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4.8. Intellectual Property. Except as described in the 1934 Act Filings,
the Company 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 1934 Act Filings as owned or used by it
or that are necessary for the conduct of its business as now conducted as
described in the 1934 Act Filings. Except as described in the 1934 Act Filings,
the Company has not received any notice of, and has no knowledge of or reason to
believe that, any infringement of or conflict with any right 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. Except as described in 1934 Act Filings, the
Company has not entered into or become party to any development, work for hire,
license or other agreement pursuant to which they have secured the right or
obligation to use, or granted others the right or obligation to use, any
trademarks, servicemarks, trade names, copyrights, patents or any other
intellectual property right. All proprietary technical information developed by
or belonging to the Company which has not been patented has been kept
confidential.
4.9. Financial Statements. The financial statements of the Company and the
related notes contained in the 1934 Act Filings present fairly, subject to
customary year end adjustments in the case of the quarterly statements, 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 and the assets
and liabilities of the Company have not changed significantly since the date of
the most recent 1934 Act Filing except for changes in the ordinary course of
business or resulting from the Company's conversion of its Series B Preferred
Stock and payment of dividends thereon. 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 1934 Act Filings. The other
financial information contained in the 1934 Act Filings 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 1934 Act Filings, and except as contemplated
or described in the 1934 Act Filings, the Company has 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 its
condition (financial or other), results of operations, business, prospects, key
personnel or capitalization.
4.11. 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 1934 Act Filings complied in all material respects
with the SEC's requirements as of their respective filing dates, and the
information contained therein as of the respective dates thereof did not contain
any untrue statement of material fact
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or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
4.12. 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.
4.13. Operation of the Business. Except as described in the 1934 Act
Filings, the Company owns and retains all such assets, tangible or intangible,
contractual, license and leasehold rights necessary for it (i) to operate its
business as described in the 1934 Act Filings, and (ii) to utilize the assets
and contractual, license and leasehold rights in the same manner as they were
utilized at the Closing Date, except where the failure to own, retain or utilize
such assets or rights will not have a material adverse effect upon the business
or financial condition of the Company.
4.14. Environmental Matters. The Company is in compliance in all respects
with all applicable local, state and federal safety and environmental laws,
rules, orders and regulations ("Environmental Laws") under the jurisdiction of
the USDA, BATF, USNRC and CTDEP and any other federal or state agency with
applicable programs relating to biosafety, chemical hygiene, radiation safety,
blood borne pathogens, hazard communication, hazardous waste management and
chemical, medical and radiation waste disposal, except where the failure to
comply with the Environmental Laws will not have a material adverse effect upon
the business or financial condition of the Company.
4.15. Reliance. The Company acknowledges that the Investor has reviewed and
relied upon the 1934 Act Filings in making its decision to purchase the Stock.
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 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 Stock in the ordinary course of
its business and for its own account for investment only and with no present
intention of distributing the Stock or any arrangement or understanding with any
other persons regarding the distribution of the 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
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Registration Statement (referred to below) 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 United States by the
Company 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. The Investor 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.
(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 SEC 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 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 agreement of
the Investor herein may be legally unenforceable.
(e) Investor will not, prior to the effectiveness of the Registration
Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge
or grant any right with respect to (collectively, a "Disposition"), the Common
Stock 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
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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 1934 Act Filings, 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 the
purchase of the Stock.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement, 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 the Investor, to prepare and file with the SEC, within ten (10) 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;
(c) prepare and file with the SEC 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
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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.
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 follow the requirements of this
Section 7.2(b).
(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 8(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 within three (3) business
days that such a 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
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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. The 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
the 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.
(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 (as used herein the term "Losses" means any
and all claims, demands, costs, losses, damages and liabilities, net of
insurance proceeds, and includes reasonable attorney's fees and costs incurred
in the investigation and defense of a claim, demand, cost, loss or liability),
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon a breach by the Company of its representations,
warranties, covenants or obligations in this Agreement or 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
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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; provided, however,
that (i) the obligations of the Investor hereunder shall be limited to an amount
equal to the aggregate public offering price of the registered stock of such
Investor sold as contemplated herein, unless such liability arises out of or is
based upon willful misconduct by the Investor and (ii) the indemnity for untrue
statements or omissions described above, and the reimbursement obligation
relating thereto, shall not apply if the Investor provides the Company with
additional written information a reasonable time prior to the effectiveness of
the Registration Statement as is required to make the previously supplied
written information true and complete, together with a description in reasonable
detail of the information previously supplied which was untrue or complete.
(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
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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 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 Investor 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 the 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 Investor agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation 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), the
Investor shall not 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 or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.4. 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
-11-
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.
7.5. 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 7.5 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. 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
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Attn: David W. Keiser or Barry Luke
Phone: 203-776-1790
Telecopy: 203-776-2089
with a copy mailed to:
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, NY 10103
Attn: Lawrence A. Spector or Merrill M. Kraines
Phone: 212-318-3000
Telecopy: 212-752-5958
(b) 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.
with a copy mailed to:
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Attn: Daniel Goelzer, Esq.
Phone: (202) 452-7000
Facsimile: (202) 452-7074
9. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
10. 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.
11. 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.
12. 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.
13. 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.
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Exhibit A
---------
Date: ______________
Lawrence A. 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
connection with such sale.
Print or Type:
Name of Investor
(Individual or Institution): _____________________________
Name of Individual representing
Investor (if an Institution): ____________________________
Title of Individual representing
Investor (if an Institution): ____________________________
Signature by:
Individual Investor or
Individual representing Investor: ________________________
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, February 27, 2001
No. W-___ Warrants to Purchase
________ Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that _______, or registered
assigns, is the registered holder of _______ Warrants to purchase initially, at
any time from August 27, 1997 until 5:30 p.m. New York time on February 27, 2001
("Expiration Date"), up to _________ fully-paid and non-assessable shares of
common stock, ("Common Stock") of ALEXION PHARMACEUTICALS, INC., a Delaware
corporation (the "Company"), (one share of Common Stock referred to individually
as a "Security" and collectively as the "Securities") at the initial exercise
price, subject to adjustment in certain events (the "Exercise Price"), of $9.90
per share of Common Stock upon surrender of this Warrant Certificate and payment
of the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the warrant agreement dated as of February
28, 1996 between the Company and JOSEPHTHAL LYON & ROSS INCORPORATED (the
"Warrant Agreement"). Payment of the Exercise Price shall be made by certified
or official bank check in New York Clearing House funds payable to the order of
the Company.
No Warrant may be exercised after 5:30 p.m., New York time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of
certain events the Exercise Price and the type and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Exercise Price and the
number and/or type of securities issuable upon the exercise of the Warrants;
provided, however, that the failure of the Company to issue such new Warrant
Certificates shall not in any way change, alter, or otherwise impair, the rights
of the holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this
Warrant Certificate at an office or agency of the Company, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
herein and in the Warrant Agreement, without any charge except for any tax or
other governmental charge imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced
by this Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated as of March 4, 1996
ALEXION PHARMACEUTICALS, INC.
[SEAL]
By: /s/ Leonard Bell
---------------------------------------------
Name: Leonard Bell
Title: President and Chief Executive Officer
Attest:
/s/ David Keiser
- ------------------------------
David Keiser
Executive Vice President and
Chief Operating Officer
ARTHUR ANDERSON 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 29, 1997,
included in Alexion Pharmaceuticals, Inc.'s Form 10-K for the year ended July
31, 1997, and to all references to our firm included in this registration
statement.
/s/ Arthur Andersen LLP
Hartford, Connecticut
March 6, 1998