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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3 )*
ALEXION PHARMACEUTICALS, INC.
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(Name of Issuer)
COMMON STOCK, PAR VALUE $.0001 PER SHARE
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(Title of Class of Securities)
015351109
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(CUSIP Number)
DR. ANDREAS BREMER
GRAFENAUWEG 4, 6301 ZUG CH/SWITZERLAND
011-41-41-724-5959
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COPY TO:
DANIEL L. GOELZER, ESQ.
BAKER & MCKENZIE
815 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20006
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(Name, Address and Telephone Number of Person Authorized to
Receive Notice and Communications)
MARCH 4, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box. [ ]
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CUSIP No. 015351109
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1. Names of Reporting Persons. BB BIOTECH AG
I.R.S. Identification Nos. of above persons (entities only).
NOT APPLICABLE: FOREIGN CORPORATION
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2. Check the Appropriate Box if a Member of a Group
(a)
(b)
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3. SEC Use Only
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4. Source of Funds WC
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5. Check if Disclosure of Legal Proceeding Is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization SWITZERLAND
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Number of 7. Sole Voting Power 0
Shares Bene ----------------------------------------------------
ficially by 8. Shared Voting Power 1,824,113
Owned by Each ----------------------------------------------------
Reporting 9. Sole Dispositive Power 0
Person With ----------------------------------------------------
10. Shared Dispositive Power 1,824,113
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11. Aggregate Amount Beneficially Owned by Each Person reporting Person
1,824,113
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12. Check if the Aggregate Amount in Row (11) Excludes Certain shares
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13. Percent of Class Represented by amount in Row (11) 16.3%
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14. Type of Reporting Person HC, CO
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Page 2 of 5
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CUSIP No. 015351109
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1. Names of Reporting Persons. BIOTECH TARGET S.A.
I.R.S. Identification Nos. of above persons (entities only).
NOT APPLICABLE: FOREIGN CORPORATION
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2. Check the Appropriate Box if a Member of a Group
(a)
(b)
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3. SEC Use Only
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4. Source of Funds AF
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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6. Citizenship or Place of Organization PANAMA
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Number of 7. Sole Voting Power 0
Shares Bene- ------------------------------------------------------
ficially by 8. Shared Voting Power 1,824,113
Owned by Each ------------------------------------------------------
Reporting 9. Sole Dispositive Power 0
Person With ------------------------------------------------------
10. Shared Dispositive Power 1,824,113
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11. Aggregate Amount Beneficially Owned by Each Person reporting Person
1,824,113
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12. Check if the Aggregate Amount in Row (11) Excludes Certain shares
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13. Percent of Class Represented by amount in Row (11) 16.3%
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14. Type of Reporting Person CO
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Page 3 of 5
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ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Items 5(a), 5(b) and 5(c) are hereby amended to read as follows:
(a) BB Biotech may be deemed to be the indirect beneficial owner of
the 1,824,113 shares of the common stock of Alexion Pharmaceuticals, Inc., par
value $.0001 per share, (the "Common Stock") held directly by Biotech Target as
of May 26, 1998, which represent approximately 16.3% of the outstanding shares
of the Common Stock. No shares of the Common Stock are directly beneficially
owned by BB Biotech. To the best knowledge of BB Biotech and Biotech Target, no
director or executive officer of BB Biotech or Biotech Target owns any shares
of the Common Stock.
(b) The number of shares of the Common Stock to which there is sole
power to vote or to direct the vote, shared power to vote or to direct the
vote, sole power to dispose or to direct the disposition, or shared power to
dispose or direct the disposition, is set forth in the cover pages hereof and
such information is incorporated herein by reference. BB Biotech, through its
ownership of Biotech Target, may be deemed to indirectly beneficially own the
shares of the Common Stock which are directly beneficially owned by Biotech
Target within the meaning of Regulation 13D under the Exchange Act, and may be
deemed to share with Biotech Target the power to vote, or direct the vote of,
and the power to dispose of or direct the disposition of, the aggregate
1,824,113 shares of the Common Stock held directly by Biotech Target.
(c) Biotech Target has engaged in the following transactions with
respect to the Common Stock during the past 60 days: On March 4, 1998 Biotech
Target purchased 670,000 shares of the Common Stock in a privately negotiated
transaction pursuant to a Stock Purchase Agreement dated as of March 4, 1998
(the "March 1998 Agreement") for an aggregate consideration of $8,830,600. The
March 1988 Agreement is included as Exhibit Number 6, which Exhibit is
incorporated herein by reference. Biotech Target also received 70,831 shares of
the Common Stock from Alexion as a dividend, pursuant to the terms of the March
1988 Agreement between Alexion and Biotech Target. As of May 26, 1998, Biotech
Target directly holds approximately 16.3% of the outstanding shares of the
Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
Item 6 is hereby amended to add the following disclosure:
Pursuant to the March 1998 Agreement, Alexion and Biotech Target
have agreed to the following provisions as they relate to the shares of the
Common Stock held directly by Biotech Target:
(a) Registration Rights. Alexion has provided Biotech Target with
certain registration rights with respect to the resale of shares of the Common
Stock directly beneficially owned by Biotech Target. Among other things, Alexion
has agreed to prepare and file a registration statement on Form S-3 with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
to register the resale of the shares by Biotech Target by March 14, 1998 and to
use its best efforts to cause such registration statement to be declared
effective within 90 days after the registration statement is filed by Alexion.
(b) Reference to the March 1998 Agreement. The response to this Item
6 is qualified in its entirety by reference to the March 1998 Agreement, the
full text of which is filed as Exhibit 6 hereto and incorporated herein by
reference.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Item 7 is hereby amended to add the following:
Exhibit 6: Stock Purchase Agreement dated as of March 9, 1998.
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
BB BIOTECH AG
Date: May 26, 1998 By: /s/ Hans-Joerg Graf
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Name: Hans-Joerg Graf
Signatory Authority
Date: May 26, 1998 By: /s/ Dr. Victor Bischoff
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Name: Dr. Victor Bischoff
Vice Chairman and Director
BIOTECH TARGET, S.A.
Date: May 26, 1998 By: /s/ Dr. Andreas Bremer
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Name: Dr. Andreas Bremer
Signatory Authority
Date: May 26, 1998 By: /s/ Dr. Anders Hove
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Name: Dr. Anders Hove
Signatory Authority
Page 5 of 5 pages
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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.")
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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
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Name: A. Bremer A. Hove
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Title:Signatory Authority Signatory Authority
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Address: Swiss Bank Tower, Obarie Street,
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Panama, Panama
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Tax ID No.: 000 000
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Contact name:
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Telephone:
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Name in which shares should be
registered (if different):
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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
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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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<PAGE> 9
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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<PAGE> 10
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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<PAGE> 11
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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<PAGE> 12
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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<PAGE> 13
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
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<PAGE> 14
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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<PAGE> 15
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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<PAGE> 16
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:
-------------------------------
