As filed with the Securities and Exchange Commission on December , 2000
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALEXION PHARMACEUTICALS, INC.
(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 No.)
352 KNOTTER DRIVE, CHESHIRE, CONNECTICUT 06410
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(Address of principal executive offices) (Zip Code)
ALEXION PHARMACEUTICALS, INC.
PROLIFARION, INC. 1999 LONG TERM
INCENTIVE AND STOCK OPTION PLAN OPTIONS
OF PROLIFARON, INC.
(Full Title of the Plan)
LEONARD BELL, M.D.
ALEXION PHARMACEUTICALS, INC.
352 KNOTTER DRIVE
CHESHIRE, CONNECTICUT 06410
(203) 272-2596
(Name, address, including area code, and
telephone number of agent for service)
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Copies of all communications, including all communications sent to the agent for
service, should be sent to:
LAWRENCE M. BELL, ESQ.
GOLENBOCK, EISEMAN,ASSOR & BELL
437 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 907-7300
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) FEE
Common Stock,
par value of 44,292
$.0001 per shares $48.20 $2,134,874.40 $534.00
share
(1) The price, pursuant to Rule 457(h) of the Securities Act of 1933, as
amended (the "Act") and solely for the purpose of calculating the
registration fee, is the product resulting from multiplying 44,292, the
number of shares registered by this Registration Statement which is the
number of shares issuable upon exercise of the options granted under the
Prolifarion, Inc. 1999 Long Term Incentive and Stock Option Plan, by the
highest applicable exercise price for options issued under the
Prolifarion, Inc. 1999 Long Term Incentive and Stock Option Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
In accordance with the rules and regulations of the Securities and
Exchange Commission, the documents containing the information called for in Part
I of Form S-8 has been given to the individuals who participated in the
Prolifarion, Inc. 1999 Long Term Incentive and Stock Option Plan and are not
being filed with or included in this Form S-8.
PROSPECTUS STATEMENT
The material which follows, up to but not including the page beginning Part II
of this Registration Statement, constitutes a prospectus, prepared in accordance
with the requirements of Part I of Form S-3 pursuant to General Instruction C to
Form S-8, to be used in connection with resales of securities acquired by
certain individuals and entities that received such options with respect thereto
as a result of their participation, as employees and/or consultants of
Prolifaron Inc. (now known as Alexion Antibody Technologies, Inc.), in the
Prolifarion Inc. 1999 Long Term Incentive and Stock Option Plan which as a
result of and in accordance with the acquisition of Prolifaron Inc. by the
Registrant and the assumption by the Registrant of the issued stock options the
stock options are exercisable for shares of Registrant's Common Stock. Such plan
and the underlying option agreements being an employee benefit plan, as defined
in Rule 405 under the Securities Act of 1933, as amended.
Description of the Options
General Information.
The stock options were granted to employees and/or consultants of
Prolifaron, Inc. under its 1999 Long Term Incentive and Stock Option Plan ("1999
Plan") and were in connection with the acquisition by the Registrant of
Prolifaron Inc. on September 23, 2000 through the merger (the "Merger") of a
wholly-owned subsidiary of the Registrant with and into Prolifaron Inc. and the
change of Prolifaron's name to Alexion Antibody Technologies, Inc. ("Alexion
Antibody"). The stock options granted under the 1999 Plan were converted into
options to acquire shares of Common Stock of the Registrant as previously
reported on Form 8-K filed on October 3, 2000.
No options were or will be granted under the 1999 Plan from and
after September 23, 2000, the effective date of the Merger. All of the
unexercised options granted under the 1999 Plan that were issued and outstanding
on such date became fully vested, and remain outstanding and exercisable in
accordance with their respective terms until their respective expiration dates
with the exception that they are now exercisable for shares of Common Stock of
the Registrant.
In accordance with the terms of the Agreement and Plan of Merger
dated as of September 22, 2000 by and among the Registrant, Prolifaron Inc., PI
Acquisition Company, Inc. and certain major
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shareholders of Prolifaron, Inc. the issued and outstanding stock options under
the 1999 Plan exercisable for 855,000 shares were automatically converted upon
the effectiveness of the Merger into stock options under the 1999 Plan to
acquire 44,364 shares of Common Stock of the Registrant, determined by
multiplying the number of shares of Prolifaron, Inc. for which the issued and
outstanding stock options were exercisable by .05187 and rounding up to the
nearest whole share. After the effective date of the merger two optionees that
had left Alexion Antibody exercised the stock options held by them and received
an aggregate of 72 shares of restricted Common Stock of the Registrant.
The following discussion is qualified in its entirety by the full
text of the 1999 Plan.
The 1999 Plan is administered by the Board of Directors of Alexion
Antibody or, if the Board of Directors so determines, a Committee thereof.
Subject to the terms of the 1999 Plan, the Board (or the Committee, as the case
may be), has the authority to determine to whom options shall be granted
(subject to certain eligibility requirements for grants of ISOs), the number of
shares covered by each such grant, the exercise or purchase price per share, the
time or times at which options shall be granted, and other terms and provisions
governing the options, as well as the restrictions, if any, applicable to shares
of Common Stock issuable upon exercise of options. The Board of Directors may,
from time to time, adopt amendments, certain of which are subject to stockholder
approval, and may terminate the 1999 Plan at any time (although such action will
not affect options previously granted). The number and exercise price of
outstanding options are subject to adjustment in the event of a stock dividend,
stock split, consolidation, merger, recapitalization, reorganization or similar
transaction.
The 1999 Plan is not an employee benefit plan which is subject to
the provisions of the Employee Retirement Income Security Act of 1974, and the
provisions of Section 401(a) of the Code are not applicable to the 1999 Plan.
For additional information about the 1999 Plan, please contact Barry
Luke at 352 Knotter Drive, Cheshire, Connecticut 06410, telephone number (203)
272-2596.
Securities to be Offered
A total of 44,292 shares of the Registrant's Common Stock are
reserved for issuance upon the exercise of options under the 1999 Plan (subject
to adjustment for capital changes). Shares subject to options which for any
reason expire or are terminated unexercised will not be available for regrant
under the 1999 Plan.
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Employees Who May Participate in the 1999 Plan
Under the 1999 Plan, the key employees of Alexion Antibody and any
subsidiary thereof may be granted options which qualify as ISOs; directors,
officers, employees, and consultants of Alexion Antibody and "affiliates" may be
granted Non-Qualified Options. The Committee may take into consideration a
recipient's individual circumstances in determining such persona's eligibility
to participate in the 1999 Plan.
Purchase of Securities Pursuant to the 1999 Plan and Payment for Securities
The 1999 Plan requires that each option shall expire on the date
specified by the Committee, but not more than ten years from its date of grant.
However, in the case of any ISO granted to an employee or officer owning more
than 10% of the total combined voting power of all classes of stock of the
Registrant, the ISO will expire no more than five years from its date of grant.
The 1999 Plan also requires that ISOs be exercised no later than 90 days
following termination of the grantee's employment (twelve months in the case of
death) including permanent disability (unless the exercise period upon a
permanent disability is extended to up to twelve months after termination at the
discretion of the Board of Directors)). ISOs not exercised within this time
period automatically terminate.
Non-qualified options will terminate under such circumstances as the
Board of Directors or the Committee may specify in connection with the
particular option grant. In the case of Non-Qualified Options granted to
employees, such options may terminate in the same circumstances as would ISO's,
and/or the Committee may specify that such options shall be subject to such
termination and cancellation provisions as the Committee may determine.
The exercise price per share specified in the agreement relating to
each option granted under the 1999 Plan was not less than the fair market value
per share of Common Stock on the date of such grant. In the case of an ISO
granted to an employee owning stock possessing more than 10% of the total
combined voting power of all classes of stock of the Registrant, the price per
share specified in the agreement relating to such ISO were not be less than 110%
of the fair market value per share of Common Stock on the date of grant.
For purposes of determining fair market value, if at the time an
option is granted, the Common Stock is publicly traded,
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fair market value is determined as of the last business day for which the prices
or quotes discussed herein are available prior to the date such option is
granted and means (i) the average (on that date) of the high and low prices of
the Common Stock on the principal national securities exchange on which the
Common Stock is traded or (ii) the last reported sale price (on that date) of
the Common Stock on the NASDAQ National Market List or (iii) the average of the
closing bid and asked prices last quoted (on that date) by an established
quotation service for over-the-counter securities. If the Common Stock is not
publicly traded at the time an option is granted, fair market value shall be
determined by the Committee, which shall take into consideration all factors
which it deems appropriate, including without limitation, recent sale and offer
prices of the Common Stock in private transactions negotiated at arm's length.
Exercise of any option, in whole or in part, under the 1999 Plan is
effected by a written notice of exercise delivered to Alexion Antibody at its
principal office together with payment by cash or check for the Common Stock in
full, or, if permitted by the Board of Directors or the Committee, in its
discretion, by the delivery of shares of Common Stock of the Registrant, valued
at fair market value. In the case of an ISO, the Board of Directors'or the
Committee's discretion must be exercised at the time of grant of the ISO.
The 1999 Plan permits the Board of Directors or the Committee to
require the termination and cancellation of options in the event a grantee's
employment is terminated for gross or willful misconduct and to otherwise
condition the exercise of options on other conditions.
The 1999 Plan contains terms providing for the exercise of options
by or on behalf of former and deceased employees.
Resale Restrictions
If and so long as the offer and sale of shares upon the exercise of
options is covered by an effective registration statement of the Registrant on
Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"),
the shares of Common Stock issuable upon exercise of the options will be freely
tradable upon issuance to participants in the 1999 Plan who are not officers,
directors or "affiliates" of the Registrant (within the meaning of Rule 144
under the Securities Act). However, shares of Common Stock acquired pursuant to
the exercise of options by any officer, director or "affiliate" of the
Registrant may not be sold, transferred or otherwise disposed of unless (a) a
registration statement is in effect under the Securities Act with respect to
such shares or an exemption from the registration requirements of the Securities
Act is available and the Registrant has received an
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opinion of counsel satisfactory to the Registrant that such registration is not
required or (b) the shares are sold pursuant to Rule 144 and the Registrant
receives an opinion of counsel satisfactory to the Registrant to such effect.
In addition, shares of Common Stock which are not issued or sold by
the Registrant under the 1999 Plan pursuant to an effective registration
statement on Form S-8 would be characterized as "restricted securities" under
the Federal securities laws and would not be permitted to be sold, transferred
or otherwise disposed of unless (a) a registration statement is in effect under
the Securities Act with respect to such issue or sale by the Registrant or an
exemption from the registration requirements of the Securities Act is available
and the Registrant receives an opinion of counsel satisfactory to the Registrant
that such registration is not required or (b) the shares are sold pursuant to
Rule 144 and the Registrant receives an opinion of counsel satisfactory to the
Registrant to such effect. Moreover, grantees who receive shares from the
Registrant which constitute restricted securities will be required to execute
such undertakings and certificates as the Registrant shall require to assure
compliance with the Securities Act. The Registrant may also require any
certificate for such shares to bear a restrictive legend to effect compliance
with the Securities Act and any other applicable regulatory requirements.
In particular, Rule 144 currently requires that the resale of any
"restricted securities" not occur less than one year after the later of the date
the securities were sold by the Registrant or the date the securities were sold
by an affiliate of the Registrant within the meaning of Rule 144, and, in the
case any securities held by an affiliate, or of restricted securities held by
any person (whether or not an affiliate) who holds the securities less than two
years, any such resale is subject to the satisfaction of the conditions
specified by Rule 144, including: (1) the resale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with a market
maker (as that term is defined under the Securities Exchange Act of 1934); (2)
the availability of certain public information about the Registrant; (3) the
amount of securities being sold during any three month period not exceeding the
limitations specified in Rule 144; and (4) the timely filing of Form 144, if
applicable. Notwithstanding the fact that Rule 144 is not the exclusive means of
exemption from the registration requirements of the Securities Act, the Staff of
the Securities and Exchange Commission has expressed its opinion that persons
proposing to sell restricted securities, or affiliates proposing to sell
securities, other than in a registered offering and otherwise than pursuant to
Rule 144, will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate
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in such transactions do so at their own risk. No assurances can be given that
any other registration exemption will be available in such event. Holders of
options are urged to consult with their personal advisors regarding the above
matters.
Transfer of Interests
Options granted pursuant to the 1999 Plan are not assignable or
transferable other than by will or by the laws of descent and distribution and
are exercisable during the optionee's lifetime only by the optionee.
Certain Federal Tax Consequences
Set forth below is a brief summary of some of the Federal tax rules
applicable to options granted pursuant to the 1999 Plan and the disposition of
the shares acquired upon exercise of an Option. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. YOU SHOULD
CONSULT A TAX ADVISER BEFORE EXERCISING AN OPTION OR DISPOSING OF SHARES.
Incentive Stock options. The following general rules are applicable
for Federal income tax purposes under existing law to employees who receive and
exercise ISOs granted under the 1999 Plan:
Generally, no taxable income results to the optionee upon the grant
of an ISO or upon the issuance of shares to the optionee upon exercise of the
ISO. (But see the discussion of possible taxation under "Minimum Tax" below.) If
shares acquired upon exercise of an ISO are disposed of after the later of (i)
two years following the date the option was granted, and (ii) one year following
the date the shares are transferred to the optionee pursuant to the exercise of
the option, the difference between the amount realized on such disposition of
the shares and the exercise price will be treated as long-term capital gain or
loss to the optionee.
If shares acquired upon exercise of an ISO are disposed of before
the expiration of one or both of the requisite holding periods (a "disqualifying
disposition"), then in most cases any excess of the fair market value of the
shares at the time of exercise of the option over the exercise price, or, if
less, the actual gain on disposition, will be treated as compensation to the
optionee and will be taxed as ordinary income in the year of such disqualifying
disposition. Any excess of the amount realized by the optionee as the result of
a disqualifying disposition over the sum of (i) the exercise price and (ii) the
amount of ordinary income recognized under the above rules will be treated as
either long-term or short-term capital gain, depending upon the time elapsed
between receipt and disposition of such shares. In
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addition, ISOs granted under the 1999 Plan will be terminated if the optionee is
not employed by Alexion Antibody at all times during the period from the date
the option is granted through the date 90 days before the date the option is
exercised (twelve months in the case of death (subject to certain limitations
outlined in the Plan)).
In general, no tax deduction is allowed to Alexion Antibody upon
either grant or exercise of an ISO under the 1999 Plan. However, in any year
that an optionee recognizes compensation income on a disqualifying disposition
of shares acquired by exercising an ISO, Alexion Antibody will generally be
entitled to a corresponding deduction for income tax purposes.
An optionee may be entitled to exercise an ISO by delivering shares
of the Registrant's Common Stock ("old stock") to Alexion Antibody in exchange
for the Common Stock received upon exercise of the ISO ("option stock"), if the
optionee's ISO grant so provides. In general, if an optionee exchanges old stock
for option stock instead of, or in addition to, paying part or all of the
exercise price in cash, no gain or loss will be recognized with respect to the
exchange of the old stock, and shares acquired upon exercise of the ISO will not
be subject to tax as explained above until the shares are sold. However, an
exception exists to this rule when the old stock is a "statutory option stock"
(as defined below) that has been held for a period less than the applicable
holding periods under the Code. In that event, the optionee will realize
ordinary compensation income with respect to the old stock in an amount equal to
the lesser of (i) the excess of the fair market value of the option stock on the
date of exercise of the ISO over the basis of the old stock, or (ii) the fair
market value of the old stock on the date it was originally exercised over the
original option exercise price. "Statutory option stock" consists of stock
acquired through the exercise of a "qualified stock option," an "incentive stock
option," an option acquired under an "employee stock purchase plan" or a
"restricted stock option," as these terms are defined in the Code. Further, if
the old stock used to exercise an ISO is Restricted Stock (as defined below),
exercise of the ISO with such Restricted Stock may be treated as the lapse of
the restrictions imposed on such Restricted Stock under the rules discussed
below, and the optionee may recognize income as a result.
Non-Qualified Options. The following general rules are applicable
for Federal income tax purposes under existing law to holders of Non-Qualified
Options and to the Registrant.
The optionee generally does not realize any taxable income upon the
grant of a Non-Qualified Option, and Alexion Antibody is not allowed a deduction
by reason of such grant. The optionee will recognize ordinary compensation
income at the time of exercise of a Non-Qualified Option in an amount equal to
the excess, if any, of the fair market value of the shares on the date of
exercise over the
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exercise price. In accordance with the regulations under the Code and applicable
state law, Alexion Antibody is obligated to withhold taxes in respect of such
compensation income at the time of the exercise of the Option. The 1999 Plan
permits Alexion Antibody to require the optionee to pay to Alexion Antibody an
amount sufficient to satisfy such withholding taxes. If the Registrant withholds
shares instead of cash to satisfy this withholding tax obligation, the optionee
nonetheless will be required to include in income the compensation income
attributable to the shares withheld. When the optionee sells the shares, such
optionee will recognize a capital gain or loss in an amount equal to the
difference between the amount realized upon the sale of the shares and such
optionee's basis in the shares (i.e., the exercise price plus the amount taxed
to the optionee as compensation income). If the optionee holds the shares for
longer than the statutory holding period, this gain or loss will be a long-term
capital gain or loss. The present statutory holding period is one year. In
general, Alexion Antibody will be entitled to a tax deduction in the year in
which compensation income attributed to the Non-Qualified Options is recognized
by the optionee.
The foregoing rules applicable to Non-Qualified Options are based
upon the assumptions that (i) the options do not have a readily ascertainable
fair market value at the date of grant and (ii) the Common Stock acquired by
exercising the Non-Qualified Option is either transferable or not subject to a
"substantial risk of forfeiture" (as such terms are defined in regulations under
Section 83 of the Code).
An optionee may be entitled to exercise a Non-Qualified Option by
delivering shares of old stock to Alexion Antibody in exchange for the Common
Stock of the Registrant received upon exercise of the option ("Non-Qualified
Option stock"), if the optionee's Non-Qualified Option grant so provides. In
general, if an optionee exchanges old stock for Non-Qualified Option stock
instead of, or in addition to, paying part or all of the exercise price in cash,
no gain or loss will be recognized with respect to the exchange of the old
stock. However, if the fair market value of the Non-Qualified Option stock
received exceeds the fair market value of the old stock (at the time of
exercise) delivered to acquire the Non-Qualified Option stock, the transaction
will be separated into two parts for tax purposes. In the first part, the number
of shares of old stock delivered will be deemed exchanged, tax-free, for a like
number of shares of the Non-Qualified Option stock received, and the basis of
the shares so received will be the same as the basis of the shares of old stock
delivered. In the second part of the transaction, the balance of the shares of
Non-Qualified Option stock received will be treated as ordinary compensation
income, and the fair market value of these shares will constitute both the
amount of compensation income with respect to, and the basis for, such shares.
Further, if the old stock used to exercise a Non-Qualified Option is Restricted
Stock (as defined below), and the Common Stock of the Registrant acquired on
exercise of the Non-Qualified Option is not subject to restrictions
10
substantially similar to those imposed on such Restricted Stock, exercise of the
Non-Qualified Option with such Restricted Stock will be treated as the lapse of
the restrictions imposed on such Restricted Stock under the rules discussed
below, and the optionee may recognize income as a result.
Special Rules for Restricted Stock. Common Stock that is subject to
restrictions on transfer and also to a substantial risk of forfeiture (as
defined in regulations under Section 83 of the Code), referred to herein as
"Restricted Stock," is subject to special tax rules. If the Common Stock of the
Registrant acquired on the exercise of a Non-Qualified Option or pursuant to a
purchase is Restricted Stock, the amount of income recognized by the optionee
generally will be determined as of the time the restrictions lapse, and will be
equal to the difference between the amount paid for the Restricted Stock and the
fair market value of the Restricted Stock at that time. In that case, the
payment to Alexion Antibody of withholding taxes will be required as the income
arises, i.e., at the time the transfer restrictions on the stock lapse or the
substantial risk of forfeiture no longer exists.
Due to certain securities law restrictions, the Common Stock
acquired by officers or directors of Alexion Antibody, or "affiliates" (as
defined pursuant to the Securities Act) of Alexion Antibody, who exercise
Non-Qualified Options may be treated for tax purposes as Restricted Stock.
Similarly, the Common Stock acquired by officers or directors of Alexion
Antibody who exercise ISOs may be treated for alternative minimum tax purposes
(but not regular tax purposes) as Restricted Stock.
If an optionee transfers Restricted Stock to Alexion Antibody to
exercise an ISO, the restrictions on such Restricted Stock will be deemed to
have lapsed on the date of transfer, and the optionee may recognize income at
that time. Similarly, if the optionee transfers Restricted Stock to Alexion
Antibody to exercise a Non-Qualified Option, and the stock received by the
optionee on exercise is not subject to restrictions substantially similar to
those imposed on such Restricted Stock, the restrictions on that Restricted
Stock will be deemed to have lapsed on the date of transfer, and the optionee
may recognize income at that time.
Under Section 83(b) of the Code, an election is available to the
optionee to include in gross income, in the taxable year that Restricted Stock
is first transferred to the optionee, the amount of any excess of the fair
market value (as determined under Section 83) of the Restricted Stock over the
amount (if any) paid for such stock. If this election is made and the optionee
pays the tax in the year such election is made, no further tax liability will
arise at the time the transfer restrictions on the Restricted Stock lapse or the
substantial risk of forfeiture no longer exists. However, if shares of
Restricted Stock for which a Section 83(b) election is in effect are
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forfeited while such shares are both nontransferable and subject to a
substantial risk of forfeiture, the loss realized by the optionee on the
forfeiture, for federal income tax purposes, is limited to the amount paid for
such shares (not including any compensation income recognized by the optionee at
the time of transfer) less any amount realized by the optionee on such
forfeiture. Restricted Stock acquired by exercising an ISO generally is not
subject to the rules of Section 83, but rather the rules discussed above under
Incentive Stock Options.
Minimum Tax. The exercise of ISOs granted under the 1999 Plan may
result in a further "minimum tax" under the Code. The Code provides that an
"alternative minimum tax" will be applied against a taxable base which is equal
to regular taxable income, adjusted for certain limited deductions and losses,
increased by items of tax preference, and reduced by a statutory exemption. The
statutory exemption is phased out for certain higher income taxpayers. The
bargain element at the time of exercise of an ISO, i.e., the amount by which the
value of the Common Stock received upon exercise of the ISO exceeds the exercise
price, is included in the optionee's alternative minimum taxable income for
purposes of the minimum tax, subject to the rules applicable to Restricted
Stock.
Thus, if upon exercise of an ISO an optionee receives stock which is
not Restricted Stock, the bargain element is included in the optionee's
alternative minimum taxable income in the year of exercise. If the optionee
receives Restricted Stock on exercise of an ISO, the bargain element is measured
in alternative minimum taxable income in the year(s) that the restrictions on
the stock lapse(s), unless the optionee files a Section 83(b) election under the
Code with the Internal Revenue Service within 30 days of the date of exercise of
the ISO and thereby elects to include the bargain element in alternative minimum
taxable income in the year of exercise. For purposes of determining alternative
minimum taxable income (but not regular taxable income) for any subsequent year
in which the taxpayer sells the stock acquired by exercise of the ISO, the basis
of such stock will be its fair market value at the time the ISO was exercised. A
taxpayer is required to pay the higher of his regular tax liability or the
alternative minimum tax. A taxpayer who pays alternative minimum tax
attributable to the exercise of an ISO may be entitled to a tax credit against
regular tax liability in later years.
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Part II
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in, or incorporated by reference in,
this registration statement are forward-looking in nature. Such statements can
be identified by the use of forward-looking terminology such as "believes,"
"expects," "may," "will," "should," or "anticipates" or the negative thereof or
comparable terminology, or by discussions of strategy. You are cautioned that
the Registrant's business and operations are subject to a variety of risks and
uncertainties and, consequently, its actual results may materially differ from
those projected by any forward-looking statements. Certain of such risks and
uncertainties are discussed below under the heading "Risk Factors." The
Registrant makes no commitment to revise or update any forward-looking
statements in order to reflect events or circumstances after the date any such
statement is made.
WHERE YOU CAN FIND MORE INFORMATION
The Registrant files reports, proxy statements, and other
information with the SEC. Such reports, proxy statements, and other information
can be read and copied at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the Public Reference Room. The SEC maintains an internet site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding issuers that file electronically with the SEC,
including the Registrant.
INCORPORATION BY REFERENCE
The SEC allows the Registrant to "incorporate by reference" the
documents that it files with the SEC. This means that the Registrant can
disclose important information to you by referring you to those documents. Any
information incorporated in this manner is considered part of this registration
statement. Any information the Registrant files with SEC after the date of this
registration statement will automatically update and supersede the information
contained in this registration statement.
The Registrant incorporates by reference the following documents
that have been filed with the SEC and any filings that it will make with the SEC
in the future under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until this offering is completed:
(1) the Registrant's Annual Report on Form 10-K for the fiscal year ended July
31, 2000;
(2) the Registrant's Quarterly Report on Form 10-Q for the three months ended
October 31, 2000;
(3) the Registrant's Current Report on Form 8-K filed on September 25, 2000;
(4) the Registrant's Current Report on Form 8-K filed on October 3, 2000, as
amended by Amendment No. 1 on Form 8-K/A filed on November 20, 2000;
(5) the Registrant's Current Report on Form 8-K filed on October 27, 2000;
(6) the description of the Common Stock, which is registered under Section 12
of the Exchange Act, contained in the Registrant's Registration Statement
on Form 8-A, filed on February 21, 1997, as amended on October 6, 2000;
and
(7) the description of the Common Stock, which is registered under Section 12
of the Exchange Act, contained in the Registrant's Registration Statement
on Form 8-A dated February 12, 1996.
We will provide you without charge, upon written or oral request, a
copy of any or all of the documents which are incorporated by reference into
this registration statement. Requests should be directed to: Alexion
Pharmaceuticals, Inc., 352 Knotter Drive, Cheshire, Connecticut 06410 ,
Attention: Chief Executive Officer. The Registrant's telephone number is: (203)
272-2596.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers and employees of a corporation
under certain conditions and subject to certain limitations. The Registrant's
Certificate of Incorporation provides that the Registrant shall, to the fullest
extent permitted by Section 145, indemnify any and all persons whom it shall
have power to indemnify under said Section. In addition, the Registrant has
entered into indemnity agreements with its directors and officers providing for
the maximum indemnification allowed by Section 145.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
No. Description
- ------- -----------
5 Opinion of Golenbock, Eiseman, Assor & Bell
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Golenbock, Eiseman, Assor & Bell (included in Exhibit 5)
24 Power of Attorney (included on signature page)
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in
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the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification
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is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Cheshire, State of Connecticut on December 28,
2000.
ALEXION PHARMACEUTICALS, INC.
By: /s/ Leonard Bell
-------------------------------------
Leonard Bell, M.D.
President, Chief Executive Officer,
Secretary and Treasurer
-----------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints LEONARD BELL, M.D. and DAVID W. KEISER,
or either of them, his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same
with all exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
/s/ LEONARD BELL President, Chief Executive Officer, December , 2000
- --------------------------- Secretary, Treasurer and Director
Leonard Bell, M.D. (principal executive officer)
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/s/ DAVID W. KEISER Executive Vice President and December , 2000
- --------------------------- Chief Operating Officer
David W. Keiser (principal financial officer)
/s/ BARRY P. LUKE Vice President of Finance December , 2000
- --------------------------- and Administration
Barry P. Luke (principal accounting officer)
/s/ JOHN H. FRIED Chairman of the Board of December , 2000
- --------------------------- Directors
John H. Fried, Ph.D.
/s/ JERRY T. JACKSON Director December , 2000
- ---------------------------
Jerry T. Jackson
/s/ MAX LINK Director December , 2000
- ---------------------------
Max Link, Ph.D.
/s/ JOSEPH A. MADRI Director December , 2000
- ---------------------------
Joseph A. Madri, Ph.D., M.D.
/s/ R. DOUGLAS NORBY Director December , 2000
- ---------------------------
R. Douglas Norby
/s/ ALVIN S. PARVEN Director December , 2000
- ---------------------------
Alvin R. Parven
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INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
5 Opinion of Golenbock, Eiseman, Assor & Bell.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Golenbock, Eiseman, Assor & Bell (included in Exhibit 5)
24 Power of Attorney (included on signature page) 24
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[Golenbock, Eiseman, Assor & Bell Letterhead]
Exhibit 5
December 28, 2000
Alexion Pharmaceuticals, Inc.
352 Knotter Drive
Cheshire, Connecticut 06410
Dear Sirs or Madams:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), on behalf
of Alexion Pharmaceuticals, Inc. (the "Company"), relating to 44,292 shares of
the Company's Common Stock, $.0001 par value per share (the "Shares"), to be
issued under the Prolifarion, Inc. 1999 Long Term Incentive And Stock Option
Plan (the "Plan").
As counsel for the Company, we have examined such corporate records,
other documents, and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that, in our opinion, all necessary corporate
proceedings by the Company have been duly taken to authorize the issuance of the
Shares pursuant to the Plan and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for under the Plan in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not be construed as an admission that we
are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Very truly yours,
/s/ Golenbock, Eiseman, Assor & Bell
1
Exhibit 23.1
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 September 5, 2000
(except with respect to the matter discussed in Note 15 as to which the date is
September 22, 2000) included in Alexion Pharmaceuticals, Inc.'s Form 10-K for
the year ended July 31, 2000 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Hartford, Connecticut
December 28, 2000
1