STOCK PURCHASE AGREEMENT
Alexion Pharmaceuticals, Inc.
25 Science Park
New Haven, CT 06511
Ladies & Gentlemen:
The undersigned, _________________________ (the "Investor"), hereby
confirms its agreement with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of June 12,
1997 between Alexion Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), and the Investor.
2. The Company has authorized the sale and issuance of up to 1,450,000
shares of Common Stock of the Company (the "Stock"), subject to adjustment by
the Company's Board of Directors.
3. The Company and the Investor agree that the Investor will purchase and
the Company will sell, for a purchase price of $7.75 per share, or an aggregate
purchase price of $ __________, _______ shares pursuant to the Terms and
Conditions for Purchase of Shares attached hereto as Annex I and incorporated
herein by reference as if fully set forth herein. Unless otherwise requested by
the Investor, certificates representing the shares purchased by the Investor
will be registered in the Investor's name and address as set forth below.
4. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or its affiliates, (b) neither it, nor any group of which it is
a member or to which it is related, beneficially owns (including the right to
acquire or vote) any securities of the Company and (c) it has no direct or
indirect affiliation or association with any NASD member. Exceptions:
________________________________________________________________________________
________________________________________________________________________________
(If no exceptions, write "none." If left blank,
response will be deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the spow for that purpose.
INVESTOR
_________________________________________
Name:____________________________________
By:______________________________________
Title:___________________________________
Address:_________________________________
_________________________________________
Tax ID No.:______________________________
Contact name:____________________________
Telephone:_______________________________
Name in which shares should be
registered
(if different):__________________________
AGREED AND ACCEPTED:
__________________________________
ALEXION PHARMACEUTICALS, INC.
__________________________________
By: Leonard Bell, M.D.
Title: President and Chief
Executive Officer
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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
1,450,000 shares of the Common Stock, $.0001 par value (the "Stock"), of the
Company. The Company reserves the right to increase or decrease this number.
2. Agreement to Sell and Purchase the Stock. At the Closing (as defined in
Section 3), the Company will sell to the Investor, and the Investor will
purchase from the Company, upon the terms and conditions hereinafter set forth,
the number of shares of Stock set forth on the signature page hereto at the
purchase price set forth on such signature page.
The Company proposes to enter into this same form of purchase agreement
with certain other investors (the "Other Investors") and expects to complete
sales of the Stock to them. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the "Investors," and this Agreement and
the agreements executed by the Other Investors are hereinafter sometimes
collectively referred to as the "Agreements." The term "Placement Agent" shall
mean Robertson Stephens & Company LLC.
3. Delivery of the Stock at Closing. The completion of the purchase and
sale of the Stock (the "Closing") shall occur at a place and time (the "Closing
Date") specified by the Company and the Placement Agent, not later than 90 days
after the date the Registration Statement (as hereinafter defined) is filed, and
of which tl be notified in advance by the Placement Agent. At the Closing, the
Company shall deliver to the Investor one or more stock certificates
representing the number of shares of Stock set forth on the signature page
hereto, each such certificate to be registered in the name of the Investor or,
if so indicated on the signature page hereto, in the name of a nominee
designated by the Investor.
The Company's obligation to close the transaction shall be subject to the
following conditions, any one or more of which may be waived by the Company: (a)
receipt by the Company of a certified or official bank check or wire transfer of
funds in the full amount of the purchase price for the Stock being purchased
hereunder; (b) completion of the purchases and sales under the Agreements with
Other Investors; and (c) the accuracy of the representations and warranties made
by the Investors and the fulfillment of those undertakings of the Investors to
be fulfilled prior to the Closing.
The Investor's obligation to close the transaction shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least
500,000 shares of Stock; (b) the Company shall have filed a registration
statement within five (5) business days of the date on which all of the
Agreements are executed (the "Pricing Date"), the Company shall have received an
indication from the Securities and Exchange Commission ("SEC") that the SEC has
no further comments, and the Company shall have submitted an
acceleration request providing for the Registration Statement to be declared
effective at a time immediately following the Closing and on or prior to the
90th day after the date of its filing; and (c) receipt by the Placement Agent of
legal opinions from the Company's counsel and patent counsel and of a comfort
letter from the Company's Independent Auditors. The Investor's obligations
hereunder are expressly not conditioned on the purchase by any or all of the
Other Investors of the Stock that they have agreed to purchase from the Company.
The Company may sign Stock Purchase Agreements with respect to sales of stock to
Other Investors on dates subsequent to the Pricing Date, provided that all such
Agreements shall have been executed on or prior to the date on which the
Registration Statement is filed with the SEC.
4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Purchaser as follows:
4.1. Organization. Each of the Company and its Subsidiaries (as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")),
if any, is duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization. Each of the Company and its
Subsidiaries has full power and authority to own, operate and occupy its
properties an business as presently conducted and as described in the private
placement memorandum, dated May 16, 1997 distributed in connection with the sale
of the Stock (including the documents incorporated by reference therein, the
"Placement Memorandum") and is registered or qualified to do business and in
good standing in each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified would have a
material adverse effect upon the business, financial condition, properties or
operations of the Company and its Subsidiaries, taken as a whole.
4.2. Due Authorization. The Company has all requisite power and authority
to execute, deliver and perform its obligations under the Agreements, and the
Agreements have been duly authorized and validly executed and delivered by the
Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3. Non-Contravention. The execution and delivery of the Agreements, the
issuance and sale of the Stock to be sold by the Company thereunder, the
fulfillment of the terms of the Agreements and the consummation of the
transactions contemplated thereby will not conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, any
material agreement or instrument to which the Company or any Subsidiary is a
party or by which it is bound or the charter, by-laws or other organizational
documents of the Company or any Subsidiary nor result in the
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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 any Subsidiary or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond, debenture,
note or any other evidence of indebtedness or any material indenture, mortgage,
deed of trust or any other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them is bound or to which any of the
property or assets of the Company or any Subsidiary is subject, nor conflict
with, or result in a violation of, any law, administrative regulation, ordinance
or order of any court or governmental agency, arbitration panel or authority
applicable to the Company or any Subsidiary. No consent, approval, authorization
or other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, or other governmental body in the United States is
required for the valid issuance and sale of the Stock to be sold pursuant to the
Agreements, other than such as have been or will be made or obtained.
4.4. Capitalization. The capitalization of the Company as of May 16, 1997
is as set forth in the Placement Memorandum. The Company has not issued any
capital stock since that date other than as contemplated by the Placement
Memorandum. The Stock to be sold pursuant to the Agreements have been duly
authorized, and when issued and paid for in accordance with the terms of the
Agreements will be validly issued, fully paid and nonassessnding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable. Except as set forth in or contemplated by the Placement
Memorandum, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest
in the Company or any Subsidiary, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital
stock of the Company or any Subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options. The Company owns the entire
equity interest in each of its Subsidiaries, other than as contemplated by the
Placement Memorandum.
4.5. Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened or
contemplated to which the Company or any Subsidiary is or may be a party or of
which the business or property of the Company or any Subsidiary is or may be
subject that is not disclosed in the Placement Memorandum.
4.6. No Violations. Neither the Company nor any Subsidiary is in violation
of its charter, bylaws, or other organizational document, in violation of any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary, which violation, individually or in the aggregate, would have a
material adverse effect on the business or financial condition of the Company
and its Subsidiaries, taken as a whole, or is in default in any material respect
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other agreement or
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instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or by which the properties of the Company or
any Subsidiary are bound or affected, and there exists no condition which, with
the passage of time or otherwise, would constitute a material default under any
such document or instrument or result in the imposition of any material penalty
or the acceleration of any material indebtedness.
4.7. Governmental Permits, Etc. Each of the Company and its Subsidiaries
has all necessary franchises, licenses, certificates and other authorizations
from any foreign, federal, state or local government or governmental agency,
department, or body that are currently necessary for the operation of the
business of the Company and its Subsidiaries as currently conducted and as
described in the Placement Memorandum, the absence of which would have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
4.8. Intellectual Property. Each of the Company and its Subsidiaries owns
or possesses sufficient rights to use all material patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets and know-how
described or referred to in the Placement Memorandum as owned or used by it or
that are necessary for the conduct of its business as now conducted and as
proposed to be conducted as now conducted or (to the Company's knowledge based
on the current stage of development of the Company's products and, subject to
the matters discussed under "Risk Factors" in the Placement Memorandum) as
proposed to be conducted as described in the Placement Memorandum; except as
described in the Placement Memorandum, neither the Company nor any of its
Subsidiaries has received any notice of, or has any knowledge of, any
infringement of or conflict with as others with respect to any patent, patent
right, trademark, copyright, invention, trade secret or know-how that,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or business prospects
of the Company and its Subsidiaries considered as one enterprise.
4.9. Financial Statements. The financial statements of the Company and the
related notes contained in the Placement Memorandum present fairly the financial
position of the Company as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified. Such financial
statements (including the related notes) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods therein specified, except as disclosed in the Placement
Memorandum. The other financial information contained in the Placement
Memorandum has been prepared on a basis consistent with the financial statements
of the Company.
4.10. No Material Adverse Change. Subsequent to the respective dates as of
which information is given in the Placement Memorandum, and except as
contemplated in the Placement Memorandum, the Company and its Subsidiaries taken
as a whole have not incurred any material liabilities or obligations, direct or
contingent, other than in the ordinary course of business, and there has not
been any material adverse change
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in their consolidated condition (in each case, financial or other), results of
operations, business, prospects, key personnel or capitalization.
4.11. Placement Memorandum. The information contained in the Placement
Memorandum does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
4.12. Additional Information. The Company has filed in a timely manner all
documents that the Company was required to file under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") during the 12 months preceding the
date of this Agreement. The following documents complied in all material
respects with the SEC's requirements as of their respective filing dates, and
the information contained therein as of the date thereof did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading:
(a) The Company's Annual Report on Form 10-K for the year ended July 31,
1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 1997;
(c) The Company's proxy statement in connection with its Annual Meeting of
Stockholders on December 13, 1996;
(d) The Company's Current Report on Form 8-K dated February 14, 1997;
(e) The Company's prospectus dated April 7, 1997 from its resale
Registration Statement on Form S-1; and
(f) all other documents, if any, filed by the Company with the Securities
and Exchange Commission (the "Commission") since April 7, 1997
pursuant to the reporting requirements of the Exchange Act.
4.13. Listing. The Company shall comply with all requirements of the
National Association of Securities Dealers, Inc. with respect to the issuance of
the Stock and the listing thereof on the Nasdaq National Market.
4.14. Lock-up Agreements. Lock-up Agreements with the Placement Agent have
been executed by eay's Officers and Directors agreeing that such individual will
not sell, offer, contract to sell, pledge, grant any option to purchase or
otherwise dispose of any shares of the Company's Common Stock prior to the 90th
day after the Registration Statement is declared effective.
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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 number of shares of Stock set
forth on the signature page hereto in the ordinary course of its business and
for its own account for investment only and with no present intention of
distributing any of such shares of Stock or any arrangement or understanding
with any other persons regarding the distribution of such shares of Stock; (iii)
the Investor will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the shares of Stock except in compliance
with the Securities Act, applicable state securities laws and the respective
rules and regulations promulgated thereunder; (iv) the Investor has answered all
questions on the signature page hereto for use in preparation for the
Registration Statement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date; (v) the
Investor will notify the Company immediately of any change in any of such
information until such time as the Investor has sold all of its shares of Stock
or until the Company is no longer required to keep the Registration Statement
effective; and (vi) the Investor has, in connection with its decision to
purchase the number of shares of Stock set forth on the signature page hereto,
relied only upon the representations and warranties of the Company contained
herein.
(b) The Investor acknowledges, represents and agrees that no action has
been or will be taken in any jurisdiction outside the Untied States by the
Company or the Placement Agent that wofering of the shares of Stock, or
possession or distribution of offering materials in connection with the issue of
the shares of Stock, in any jurisdiction outside the United States where action
for that purpose is required. Each Investor outside the United States will
comply with all applicable laws and regulations in each foreign jurisdiction in
which it purchases, offers, sells or delivers shares of Stock or has in its
possession or distributes any offering material, in all cases at its own
expense. The Placement Agent is not authorized to make any representation or use
any information in connection with the issue, placement, purchase and sale of
the shares of Stock other than as contained in the Placement Memorandum.
(c) The Investor hereby covenants with the Company not to make any sale of
the shares of Stock without complying with the provisions of this agreement,
including Section 7.2 hereof, and without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied. The Investor
acknowledges that there may occasionally be times when the Company, based on the
advice of its counsel, determines that it must suspend the use of the prospectus
forming a part of the
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Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the Commission
or until the Company has amended or supplemented such prospectus.
(d) The Investor further represents and warrants to, and covenants with,
the Company that (i) the Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement, and (ii) upon the execution and delivery of
this Agreement, this Agreement shall constitute a valid and binding obligation
of the Investor enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Investors herein may be legally unenforceable.
(e) Investor will not, prior to the effectiveness of the Registration
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 other transactions would
include without limitation effecting any short sale or having in effect any
short position (whether or not such sale or position is against the box and
regardless of when such position was entered into) or any purchase, sale or
grant of any right (including without limitation any put or call option) with
respect to the Common stock of the Company or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from the Common stock of the Company.
(f) The Investor understands that nothing in the Placement Memorandum,
this Agreement or any other materials presented to the Investor in connection
with the purchase and sale of the Stock constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection of
Stock.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company
and the Investor herein shall survive the execution of this Agreement, the
delivery to the Investor of the shares of Stock being purchased and the payment
therefor.
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7. Registration of the Stock; Compliance with the Securities Act.
7.1. Registration Procedures and Expenses. The Company shall:
(a) use its best efforts, subject to receipt of necessary information from
Investors, to prepare and file with the Commission, within five (5) business
days of the Pricing Date, a Registration Statement on Form S-3 (the
"Registration Statement") to enable the sale of the Stock by the Investor from
time to time through the automated quotation system of the Nasdaq National
Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from
the Investor, to cause the Registration Statement to become effective within 90
days after the Registration Statement is filed by the Company;
(c) prepare and file with the Commission such amendments and supplements to
the Registration Statement and the prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective for a period not
exceeding, with respect to each Investor's shares purchased hereunder, the
earlier of (i) the second anniversary of the Closing Date, (ii) such time after
the first anniversary of the Closing Date when such Investor's shares of Stock
purchased hereunder and then owned by such Investor represent no more than one
percent of the Company's outstanding Common Stock, or (iii) such time as all
shares purchased by such Investor in this offering have been sold pursuant to a
registration statement.
(d) furnish to the Investor with respect to the Stock registered under the
Registration Statement (and to each underwriter, if any, of such Stock) such
number of copies of prospectuses and preliminary prospectuses in conformity with
the requirements of the Securities Act and such other documents as the Investor
may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Stock by the Investor, provided, however, that
the obligation of the Company to deliver copies of prospectuses or preliminary
prospectuses to the Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor will comply with the
applicable provisions of the Securities Act and of such other securities or blue
sky laws as may be applicable in connection with any use of such prospectuses or
preliminary prospectuses;
(e) file documents required of the Company for normal blue sky clearance in
states specified in writing by the Investor, provided, however, that the Company
shall not be required to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or has not so consented;
and
(f) bear all expenses in connection with the procedures in paragraph (a)
through (e) of this Section 7.1 and the registration of the Stock pursuant ton
Statement, other than fees and expenses, if any, of counsel or other advisers to
the Investor or Other Investors.
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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:
(i) The Investor must notify the Company three (3) business days prior
to sale through the Company's counsel, Fulbright & Jaworski L.L.P., at the
address provided in Section 9(b) hereto, of its intent to sell, so as to
confirm that no event has occurred or is expected to occur which would make
the Registration Statement false or misleading, and to ensure that the
Registration Statement in its possession is current and has not been
suspended. The Company may refuse to permit the Investor to resell pursuant
to the Registration Statement, provided that it must notify the Investor in
writing within three (3) business days that such as sale would violate
federal securities laws unless the Registration Statement is updated. In
such an event, the Company shall use its best efforts to amend the
Registration Statement if necessary and take all other actions necessary to
allow such sale under the federal securities laws within 10 business days
of Investor's initial notification, and shall notify the Investor promptly
after it has determined that such sale has become permissible under the
federal securities laws. Notwithstanding the foregoing, within any twelve
(12) month period the Company shall not, except upon advice of counsel as
to the necessity pursuant to federal securities laws exercise its right to
refuse to permit resale of any shares of Stock pursuant to the Registration
Statement (i) more than three (3) times or (ii) for an aggregate period in
excess of forty-five (45) days. Each Investor hereby covenants and agrees
that it will not sell any shares of Stock pursuant to the Registration
Statement during the periods the Registration Statement is withdrawn as set
forth in this Section.
(ii) If the Company or its counsel does not, within such three
business days, notify the Investor that it is exercising its right to delay
such sale, the investor may proceed with such sale provided that it
arranges for delivery of a current prospectus to the transferee. Upon
receipt of a request therefor, the Company has agreed to provide an
adequate number of current prospectuses to each investor and to supply
copies to any other parties requiring such prospectuses.
(iii) The Investor must also deliver to the Company's counsel a Notice
of Sale substantially in the form attached hereto as Exhibit A, so that the
shares may be properly transferred.
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7.3. Indemnification. For the purpose 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, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any untrue
statement of a material fact contained in the Registration Statement on the
effective date thereof, or arise out of any failure by the Company to fulfill
any undertaking included in the Registration Statement and the Company will
reimburse such Selling Stockholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, or preparing to defend any such action, proceeding
or claim, provided, however, that the Company shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of, or
is based upon, an untrue statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in
preparation of the Registration Statement, or the failure of such Selling
Stockholder to comply with the covenants and agreements contained in Sections
5(c) or 7.2 hereof respecting sale of the Stock or any statement or omission in
any Prospectus that is corrected in any subsequent Prospectus that was delivered
to the Investor prior to the pertinent sale or sales by the Investor.
(b) The Investor agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 5(c) or 7.2 hereof
respecting sale of the Stock, or any untrue statement of a material fact
contained in the Registration Statement on the effective date thereof if such
untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Investor specifically for use in
preparation
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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 nably incurred in investigating, defending or preparing to defend any
such action, proceeding or claim.
(c) Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 7.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall be entitled to participate therein, and, to the extent
it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense thereof,
such indemnifying person shall not be liable to such indemnified person for any
legal expenses subsequently incurred by such indemnified person in connection
with the defense thereof, provided, however, that if there exists or shall exist
a conflict of interest that would make it inappropriate, in the opinion of
counsel to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
(d) If the indemnification provided for in this Section 7.3 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Investors on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or a Investor on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Investors agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Investors were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim.
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Notwithstanding the provisions of this subsection (d), no Investor shall be
required to contribute any amount in excess of the amount by which the net
amount received by the Investor from the sale of the Stock to which such loss
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. The
Investors obligations in this subsection to contribute are several in proportion
to their sales of shares of Stock to which such loss relates and not joint.
7.4. 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 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 7.6 and all other
information that is made available to stockholders; and
(c) upon the reasonable request of the Investor, an adequate number of
copies of the prospectuses to supply to any other party requiring such
prospectuses; and the Company, upon the reasonable request of the Investor, will
meet with the Investor or a representative thereof at the Company's headquarters
to discuss all information relevant for disclosure in the Registration Statement
covering the Stock and will otherwise cooperate with any Investor conducting an
investigation for the purpose of reducing or eliminating such Investor's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters; provided, that, the
Company shall not be required to disclose any confidential information to or
meet at its headquarters with any Investor until and unless the
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Investor shall have entered into a confidentiality agreement in the form and
substance reasonably satisfactory to the Company with the Company with respect
thereto.
8. Placement Agent's Fee. The Investor acknowledges that the Company
intends to pay to the Placement Agent a fee in respect of the sale of the Stock
to the Investor.
9. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage
prepaid, and shall be deemed given when so mailed and shall be delivered as
addressed as follows:
(a) if to the Company, to:
Alexion Pharmaceuticals, Inc.
25 Science Park, Suite 360
New Haven,11
Attn: David W. Keiser or Barry Luke
Phone: 203-776-1790
Telecopy: 203-776-2089
(b) with a copy mailed to:
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, NY 10103
Attn: Lawrence Spector or Merrill M. Kraines
Phone: 212-318-3000
Telecopy: 212-752-5958
(c) if to the Investor, at its address on the signature page hereto, or at
such other address or addresses as may have been furnished to the
Company in writing.
10. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
11. Headings. The headings of the various section of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
12. Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
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13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the federal law of the
United States of America.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
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EXHIBIT A
Date:____________________
Lawrence Spector, Esq. or Merrill Kraines, Esq.
Fulbright & Jaworski L.L.P.
666 Fifth avenue
New York, NY 10103
Re: Alexion Pharmaceuticals, Inc.
INVESTOR'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
[official name of shareholder] _________________________ ("Shareholder") hereby
certifies that Shareholder has sold [number] ____________ shares of Alexion
Pharmaceuticals, Inc. Common Stock on [date] ____________ in accordance with
registration statement number [fill in number or otherwise identify registration
statement] __________________ and the requirements of delivering a current
prospectus has been connection with such sale.
Print or Type:
Name of Purchaser
(Individual or Institution):_____________________________________
Name of Individual representing
Purchaser (if an Institution):___________________________________
Title of Individual representing
Purchaser (if an Institution):___________________________________
Signature by:
Individual Purchaser or
Individual representing Purchaser:_______________________________
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