As filed with the Securities and Exchange Commission on September 14, 2001.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALEXION PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3648318
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
352 KNOTTER DRIVE
CHESHIRE, CONNECTICUT 06410
(203) 272-2596
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ALEXION PHARMACEUTICALS, INC.
2000 STOCK OPTION PLAN
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LEONARD BELL, M.D.
ALEXION PHARMACEUTICALS, INC.
352 KNOTTER DRIVE
CHESHIRE, CONNECTICUT 06410
(203) 272-2596
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies of all communications, including all communications sent to
the agent for service, should be sent to:
MERRILL M. KRAINES, ESQ.
LAWRENCE A. SPECTOR, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103
(212) 318-3000
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CALCULATION OF REGISTRATION FEE
====================================================================================================================================
TITLE OF SECURITIES PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED AMOUNT TO BE REGISTERED PRICE PER UNIT(1) OFFERING PRICE (1) REGISTRATION FEE
====================================================================================================================================
COMMON STOCK, $0.0001 PAR
VALUE PER SHARE.............. 1,500,000 SHARES $17.88 $26,820,000 $6,705.00
(1) THE PRICE IS ESTIMATED IN ACCORDANCE WITH RULE 457(H)(1) UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, SOLELY FOR THE PURPOSE OF CALCULATING
THE REGISTRATION FEE, BASED ON THE AVERAGE OF THE HIGH AND LOW PRICES OF
THE COMMON STOCK AS REPORTED ON THE NASDAQ NATIONAL MARKET ON SEPTEMBER
10, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. DESCRIPTION OF PLAN.
In accordance with the rules and regulations of the Securities
and Exchange Commission, the documents containing the information called for in
Part I of Form S-8 will be sent out or given to individuals who participate in
the Alexion Pharmaceuticals, Inc. 2000 Stock Option Plan (the "2000 Stock Option
Plan") and are not being filed with or included in this Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, Alexion Pharmaceuticals, Inc.
(the "Registrant") will provide without charge to participants in the 2000 Stock
Option Plan, the documents incorporated by reference in Item 3 of Part II of
this Registration Statement and the information required to be delivered to
employees pursuant to Rule 428(b). Requests should be directed to Thomas I. H.
Dubin, Esq., Vice President and General Counsel, Alexion Pharmaceuticals, Inc.,
352 Knotter Drive, Cheshire, CT 06410 (203/ 272-2596).
PART II
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in, or incorporated by reference
in, this Registration Statement are forward-looking in nature. Such statements
can be identified by the use of forward-looking terminology, such as "believes,"
"expects," "may," "will," "should," or "anticipates," or the negative thereof or
comparable terminology, or by discussions of strategy. You are cautioned that
the Registrant's business and operations are subject to a variety of risks and
uncertainties and, consequently, its actual results may materially differ from
those projected by any forward-looking statements. Certain of such risks and
uncertainties are discussed below under the heading "Risk Factors." The
Registrant makes no commitment to revise or update any forward-looking
statements in order to reflect events or circumstances after the date any such
statement is made.
WHERE YOU CAN FIND MORE INFORMATION
The Registrant files reports, proxy statements, and other
information with the SEC. Such reports, proxy statements, and other information
can be read and copied at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1- 800-SEC-0330 for further
information on the Public Reference Room. The SEC maintains an Internet site at
HTTP://WWW.SEC.GOV that contains reports, proxy and information statements and
other information regarding issuers that file electronically with the SEC,
including the Registrant.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows the Registrant to "incorporate by reference" the
documents that it files with the SEC. This means that the Registrant can
disclose important information to you by referring you to those documents. Any
information incorporated in this manner is considered part of this Registration
Statement. Any information the Registrant files with SEC after the date of this
Registration Statement will automatically update and supersede the information
contained in this Registration Statement.
The Registrant incorporates by reference the following
documents that have been filed with the SEC and any filings that it will make
with the SEC in the future under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the Registrant files a post-effective
amendment to this Registration Statement indicating this offering has been
completed:
(i) our amended current report on Form 8-K/A, filed on November 20, 2000;
(ii) our current reports on Form 8-K, filed on September 25, 2000, October 3,
2000, October 27, 2000, January 23, 2001, January 29, 2001 and June 7, 2001;
(iii) our quarterly reports on Form 10-Q for the quarters ended October 31,
2000, January 31, 2001 and April 30, 2001, filed on December 15, 2000, March 15,
2001 and June 13, 2001, respectively;
(iv) our annual report on Form 10-K for the fiscal year ended July 31, 2000,
filed on October 6, 2000;
(v) our registration statement on Form 8-A, filed on February 21, 1997, as
amended on October 6, 2000; and
(vi) our registration statement on Form 8-A, filed on February 12, 1996.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
2
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. A corporation may, in advance of the final disposition of any civil,
criminal, administrative or investigative action, suit or proceeding, pay the
expenses (including attorneys' fees) incurred by any officer, director, employee
or agent in defending such action, provided that the director or officer
undertakes to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation. A corporation may indemnify
such person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
A Delaware corporation may indemnify officers and directors in
an action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to
the corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys fees) which he actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-law, agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, Section EIGHTH of
the Company's Certificate of Incorporation, as amended (the "Certificate")
provides that the Company shall indemnify each person who is or was a director,
officer, employee or agent of the Company (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted. The indemnification provided by the Certificate shall not be deemed
exclusive of any other rights to which any of those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. Expenses (including attorneys'
fees) incurred in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the indemnified person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
company. Section NINTH of the certificate provides that a director of the
Company shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, the registrant
has been informed that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 Alexion Pharmaceuticals, Inc. 2000 Stock Option Plan
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Fulbright & Jaworski L.L.P. (Included in Exhibit 5)
3
24.1 Power of Attorney (included on signature page)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement;
(i) to include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof),
which individually or in the
aggregate, represent a fundamental
change in the information set forth
in the registration statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high end of the estimated
maximum offering range may be
reflected in the form of prospectus
filed with the Commission pursuant
to Rule 424(b) if, in the aggregate,
the changes in volume and price
represent no more than 20 percent
change in the maximum aggregate
offering price set forth in the
"Calculation of Registration Fee"
table in the effective registration
statement;
(iii) to include any material information
with respect to the plan of
distribution not previously
disclosed in the registration
statement or any material change to
such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a) (1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to securityholders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, the interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
4
contains a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes that:
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Cheshire, State of Connecticut on September 14,
2001.
ALEXION PHARMACEUTICALS, INC.
By: /s/ LEONARD BELL
-----------------------------------------
Leonard Bell, M.D.
President, Chief Executive Officer,
Secretary and Treasurer
6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints LEONARD BELL, M.D. and DAVID W.
KEISER, or either of them, his true and lawful attorney-in-fact and agent with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all statements (including
post-effective amendments) to this Registration Statement and to file the same
with all exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
/s/ LEONARD BELL Chief Executive Officer, Secretary, Treasurer September 14, 2001
-------------------------- and Director
Leonard Bell (principal executive officer)
/s/ DAVID W. KEISER Executive Vice President and Chief Operating September 14, 2001
-------------------------- Officer
David W. Keiser (principal financial officer)
* Vice President of Finance and Administration September 14, 2001
-------------------------- (principal accounting officer)
Barry P. Luke
* Chairman of the Board of Directors September 14, 2001
--------------------------
John H. Fried
* Director September 14, 2001
--------------------------
Jerry T. Jackson
* Director September 14, 2001
--------------------------
Max Link
* Director September 14, 2001
--------------------------
Joseph A. Madri
* Director September 14, 2001
--------------------------
R. Douglas Norby
* Director September 14, 2001
--------------------------
Alvin S. Parven
*By: /s/ Leonard Bell
-----------------------------------------
Leonard Bell
7
EXHIBIT 4.1
ALEXION PHARMACEUTICALS, INC.
2000 STOCK OPTION PLAN
1. PURPOSE. The purpose of the Alexion Pharmaceuticals, Inc.
2000 Stock Option Plan (the "Plan") is to establish a vehicle through which
Alexion Pharmaceuticals, Inc. (the "Company") can make discretionary grants of
Options to purchase shares of the Company's common stock, par value $0.0001 (the
"Common Stock") to members of the Board of Directors of the Company (the
"Board"), to officers and other employees of the Company and its Affiliates and
to consultants and other independent contractors of the Company and its
Affiliates, with a view toward promoting the long-term financial success of the
Company and enhancing stockholder value.
2. DEFINITIONS. For purposes of the Plan, the following terms
shall have the following meanings:
(a) "AFFILIATE" shall mean an affiliate within the
meaning of Rule 12b-2 under the Exchange Act.
(b) "CAUSE" shall mean, unless otherwise determined by
the Committee: (1) in the case where there is no employment or
consulting agreement between the optionee and the Company or
its Affiliates at the time of grant or where such an agreement
exists but does not define "cause" (or words of like import),
the optionee's dishonesty, fraud, insubordination, willful
misconduct, refusal to perform services, unsatisfactory
performance of services or material breach of any written
agreement between the optionee and the Company or its
Affiliates, or (2) in the case where there is an employment or
consulting agreement between the optionee and the Company or
its Affiliates at the time of grant which defines 'cause" (or
words of like import), the meaning ascribed to such term under
such agreement.
(c) "CHANGE IN CONTROL" shall be deemed to occur if:
(1) there shall be consummated (x) any consolidation or merger
of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of Common
Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the
holders of the Common Stock immediately prior to the merger
have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (y) any
sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all, or substantially
all, of the assets of the Company, (2) the stockholders of the
Company shall approve any plan or proposal for liquidation or
dissolution of the Company, or (3) any person (as such term is
used in Section 13(d) and 14 (d) (2) of the Exchange Act),
shall become the beneficial owner (within the meaning Rule
13d-3 under the Exchange Act) of forty percent (40%) or more
of the outstanding Common Stock, or (4) during any period of
two (2) consecutive years, individuals who at the beginning of
such period constitute the entire Board shall cease for any
reason to constitute a majority thereof unless the election,
or the nomination for election by the Company's stockholders,
of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were
directors at the beginning of the period or were so approved.
(d) "CODE" shall mean the Internal Revenue Code of
1996, as amended.
(e) "COMMITTEE" shall mean, the committee, consisting
of at least two (2) directors, appointed by the Board from
time to time to administer the Plan or, if no such committee
is appointed, the Board.
(f) "DETRIMENTAL ACTIVITY" shall mean: (1) the
rendering of services for any organization or engaging
directly or indirectly in any business which is or becomes
competitive with the company or its Affiliates, or which
organization of business, or the rendering of services to such
organization or business, is or becomes otherwise prejudicial
to or in conflict with the interests of the company or its
Affiliates, (2) the disclosure to anyone outside the Company
or its Affiliates, or the use in other than the Company's or
its Affiliates' business, without prior written authorization
from the company's or its Affiliates' business, without prior
written authorization from the Company, of any confidential
information or material relating to the business of the
Company or its Affiliates, acquired by the optionee either
during or after employment or other service with the Company
or its Affiliates, (3) the failure or refusal to disclose
promptly and to assign to the Company or its Affiliates all
right, title and interest in any invention or idea, patentable
or not, made or conceived by the optionee during employment by
or other service with the Company or its Affiliates, relating
in any manner to the actual or anticipated business, research
or development work of the Company or its Affiliates or the
failure or refusal to do anything reasonably necessary to
enable the Company or its Affiliates to secure a patent where
appropriate in the United States and in other countries, or
(4) any attempt directly or indirectly to induce any employee
of the Company or its Affiliates to be employed or perform
services elsewhere or any attempt directly or indirectly to
solicit the trade or business of any current or prospective
customer, supplier or partner of the Company or its
Affiliates.
(g) "DISABILITY" shall mean, unless as otherwise
determined by the Committee or as provided in an employment
agreement, the inability of an optionee to perform the
customary duties of his or her employment or other service for
the Company or its Affiliates by reason of a physical or
mental incapacity which is expected to result in death or to
be of indefinite duration.
(h) "EFFECTIVE DATE" shall mean the date on which the
Plan was adopted by the Board, subject to the approval of the
Company's stockholders within twelve (12) months of such date.
(i) "EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended.
(j) "EXCHANGE TRANSACTION" shall mean a merger (other
than a merger of the Company in which the holders of Common
Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving
corporation immediately after the merger), consolidation,
acquisition of property or stock, separation, reorganization
(other than a mere reincorporation or the creation of a
holding company) or liquidation of the Company, as a result of
which the stockholders of the Company receive cash, stock or
other property in exchange for or in connection with their
shares of Common Stock.
(k) "FAIR MARKET VALUE" as of any date shall mean,
unless otherwise required by the Code or other applicable law,
the closing sale price per share of Common Stock as published
by the principal national securities exchange on which the
Common Stock is traded on such date or, if there is no sale of
Common Stock on such date, the average of the bid and asked
prices on such exchange at the close of trading on such date,
or if shares of the Common Stock are not listed on a national
securities exchange on such date, the closing price or, if
none, the average of the bid and asked prices in the
over-the-counter market at the close of trading on such date,
or if the Common Stock is not traded on a national securities
exchange of the over-the-counter market, the value of a share
of the Common Stock on such date as determined in good-faith
by the Committee.
(l) "INCENTIVE STOCK OPTION" shall mean an option that
is intended to be an "incentive stock option" within the
meaning of Section 422 of the Code.
(m) "NON-QUALIFIED STOCK OPTION" shall mean an Option
that is not an Incentive Stock Option.
(n) "OPTION" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option granted pursuant to the Plan.
(o) "SECURING ACT" shall mean the Securities Act of
1933, as amended.
(p) "SUBSIDIARY" shall mean any "subsidiary
corporation" of the Company within the meaning of Section
424(f) of the Code.
(q) "TEN PERCENT STOCKHOLDER" shall mean a person
owning, at the time of grant, stock possessing more than ten
percent (10%) of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary
corporation within the meaning of Section 424 of the Code.
3. ADMINISTRATION
(a) COMMITTEE. The Plan shall be administered and
interpreted by the Committee.
(b) AUTHORITY OF COMMITTEE. Subject to the limitations
of the Plan, the Committee, acting in its sole and absolute
discretion, shall have full power and authority to: (1) select
the persons to whom options shall be granted, (2) grant
Options to such persons and prescribe the terms and conditions
of such options to such persons and prescribe the terms and
conditions of such options (including, but not limited to, the
exercise and vesting conditions applicable thereto), (3)
interpret and apply the provisions of the Plan and of any
agreement or other instrument evidencing an Option, (4) carry
out any responsibility of duty specifically reserved to the
Committee under the Plan, and (5) make and all determinations
and interpretations and take such other actions as may be
necessary or desirable in order to carry out the provisions,
intent and purposes of the Plan. A majority of the members of
their committee shall constitute a quorum. The committee may
act by the vote of a majority of its members present at a
meeting at which there is a quorum or by unanimous written
consent. The determinations of the Committee, including with
regard to questions of construction, interpretation and
administration, shall be final, binding and conclusive on all
persons.
(c) INDEMNIFICATION. The Company shall indemnify and
hold harmless each member of the committee and the Board and
any employee of the Company who provides assistance with the
administration of the Plan from and against any loss, cost,
liability (including any sum paid in settlement of a claim
with the approval of the Board), damage and expense (including
the advancement of reasonable legal and other expenses
incident thereto) arising out of or incurred in connection
with the Plan, unless and except to the extent attributable to
such person's fraud or willful misconduct.
4. ELIGIBILITY. Options may be granted under the Plan to any
member of the Board (whether or not an employee of the Company or its
Affiliates), to any officer or other employee of the Company or its Affiliates
and to any consultant or other independent contractor who performs or will
perform services for the Company or its Affiliates. Notwithstanding the
foregoing, Incentive Stock Options may only be granted to persons who are
employed by the Company or a subsidiary at the time of grant.
5. AVAILABLE SHARES. Subject to adjustment as provided in
Section10, (a) the maximum number of shares of Common Stock that may be issued
under the Plan shall not exceed 1,500,000 shares, and the (b) maximum number of
shares of Common Stock with respect to which
Options may be granted to any employee of the Company or its Affiliates in any
calendar year shall not cover more than 200,000 shares. Shares of Common Stock
available for issuance under the plan may be either authorized and unissued or
held by the Company in its treasury. New options may be granted under the Plan
with respect to Shares of Common Stock which are covered by the unexercised
portion of an Option which has terminated or expired by its terms, by
cancellation or otherwise. No fractional shares of Common Stock may be issued
under the Plan.
6. DISCRETIONARY STOCK OPTIONS.
(a) TYPE OF OPTIONS. Subject to the provisions hereof,
the Committee may grant Incentive Stock Options and Non-
Qualified Stock Options to eligible personnel upon which terms
and conditions as the Committee deems appropriate.
(b) OPTION TERM. Unless sooner terminated, all Options
shall expire not more than ten (10) years after the date the
Option is granted (or, in the case of an Incentive Stock
Option granted to a Ten Percent Stockholder, not more than
five (5) years).
(c) EXERCISE PRICE. The exercise price per share of
Common Stock covered by a Non-Qualified Stock Option may not
be less than the par value of a share of Common Stock on the
date the Option is granted. The exercise price per share of
Common Stock covered by an Incentive Stock Option may not be
less than one hundred percent (100%) of the Fair Market Value
of a share of Common Stock on the date the Option is granted
one hundred ten percent (110%) in case of an optionee who is a
Ten Percent Stockholder).
(d) EXERCISE OF OPTIONS. The Committee may establish
such vesting and other conditions and restrictions on the
exercise of an Option and/or upon the issuance of Common Stock
in connection with the exercise of an Option as it deems
appropriate. All or part of the exercisable portion of an
Option may be exercised at any time during the Option term,
except that, without the consent of the Committee, no partial
exercise of an option may be for less than one hundred (100)
shares.
(e) PAYMENT OF EXERCISE PRICE. An Option may be
exercised by transmitting to the Company: (i) a written notice
specifying the number of shares to be purchased, and (ii)
payment of the exercise price, together with the amount, if
any, deemed necessary by the Committee to enable the Company
to satisfy its federal, state, foreign or other tax
withholding obligations with respect to such exercise. The
Committee may establish such rules and procedures as it deems
appropriate for the exercise of Options. The exercise price of
shares of Common Stock acquired pursuant to the exercise of an
Option may be paid in cash, certified or bank check and/or
such other form of payment as may be permitted by the
Committee from time to time, including, without limitation,
shares of common Stock which have been owned by the holder for
at least six (6) months (free and clear of any liens and
encumbrances).
7. NON-TRANSFERABILITY. No Option shall be transferable by an
optionee other than upon the optionee's death to a beneficiary designated by the
optionee, or, if no designated beneficiary shall survive the optionee, pursuant
to the optionee's will or by the laws of descent and distribution. All Options
shall be exercisable during an optionee's lifetime only by the optionee. Any
attempt to transfer any Option shall be void, and no such Option shall in any
manner be liable for or subject to the debts, contracts, liabilities,
engagements or torts of any person who shall be entitled to such Option, nor
shall it be subject to attachment or legal process for or against such person.
Notwithstanding the foregoing, the Committee may, in its sole discretion, permit
an optionee to transfer a Non-Qualified Stock Option, in whole or in part, to
such persons and/or entities as are approved by the Committee from time to time
and subject to such terms and conditions as the Committee may determine from
time to time, including, without limitation, such terms and conditions as are
necessary or desirable to comply with applicable law.
8. EFFECT OF TERMINATION OF EMPLOYMENT OR OTHER SERVICE.
Except as otherwise provided herein or determined by the Committee, the
following rules shall apply with regard to Options held by an optionee at the
time of his or her termination of employment or other service with the Company
and its Affiliates:
(a) TERMINATION DUE TO DEATH OR DISABILITY. If an
optionee's employment or other service terminates due to his
or her death or Disability (or if the optionee's employment or
other service is terminated by reason of his or her Disability
and the optionee dies within one year of such termination of
employment or other service), then: (i) that portion of an
Option that is not exercisable on the date of termination
shall immediately terminate, and (ii) that portion of an
Option that is exercisable on the date of termination shall
remain exercisable, to the extent exercisable on the date of
termination, by the optionee (or the optionee's designated
beneficiary or representative) during the one year period
following the date of termination (or, during the one year
after the later death of a disabled optionee) or, if sooner,
until the expiration of the stated term thereof, and, to the
extent not exercised during such period, shall thereupon
terminate.
(b) TERMINATION FOR CAUSE OR AT A TIME WHEN CAUSE
EXISTS. If an optionee's employment or other service is
terminated by the Company or an Affiliate for Cause or if, at
the time of his or her termination, grounds for a termination
for Cause exist, then any option held by the optionee (whether
or not then exercisable) shall immediately terminate and cease
to be exercisable.
(c) OTHER TERMINATION. If an optionee's employment or
other service terminates for any reason or no reason, then,
except as provided for in an employment agreement: (i) that
portion of an Option held by the optionee that is not
exercisable on the date of termination shall immediately
terminate, and (ii) that portion of an Option that is
exercisable on the date of termination shall remain
exercisable, to the extent exercisable on the date of
termination, by the optionee during the ninety (90) day period
following the date of termination or, if sooner, until the
expiration of the stated term thereof, and, to the extent not
exercised during such period, shall thereupon terminate.
9. CANCELLATION AND RESCISSION OF OPTIONS. Unless an Option
agreement specifies otherwise, the Committee may cancel, rescind, suspend,
withhold or otherwise limit or restrict any unexpired Option at any time if the
optionee is not in compliance with all applicable provisions of the award
agreement and the Plan, or if the optionee engages in a Detrimental Activity.
Upon exercise of an Option, the optionee shall certify in a manner acceptable to
the Company that he or she is in compliance with the terms and conditions of the
Plan and has not engaged in any Detrimental Activities. In the event an optionee
engages in any Detrimental Activity prior to, or during the six (6) months
after, any exercise, such exercise may be rescinded within two (2) years
thereafter. In the event of any such rescission, the optionee shall pay to the
Company the amount of any gain realized as a result of the rescinded exercise,
in such manner and on such terms and conditions as may be required, and the
Company and its Affiliates shall be entitled to set-off against the amount of
any such gain, any amount owed to the optionee by the Company or its Affiliates.
10. CAPITAL CHANGE; REORGANIZATION; SALE.
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The
aggregate number and class of shares which may be issued under
the Plan, the maximum number and class of shares with respect
to which an option may be granted to any employee during any
calendar year and the number and class of shares and the
exercise price per share in effect under each outstanding
Option shall all be adjusted proportionately for any increase
or decrease in the number of issued shares of Common Stock
resulting from a split-up or consolidation of shares or any
like capital adjustment, or the payment of any stock dividend.
(b) CASH, STOCK OR OTHER PROPERTY FOR STOCK. Except as
otherwise provided in this subparagraph, in the event of an
Exchange Transaction, all optionee shall be permitted to
exercise their outstanding Options (whether or not otherwise
exercisable) at least fifteen (15) days prior to the Exchange
Transaction (and the Board shall notify each optionee of such
acceleration at least fifteen (15) days prior to the Exchange
Transaction) and any outstanding Options not exercised before
the consummation of the Exchange Transaction shall thereupon
terminate. Notwithstanding the preceding sentence, if, as a
part of the Exchange Transaction, the stockholders of the
Company receive capital stock of another corporation
("Exchange Stock"), and if the Board, in its sole discretion,
so directs, then all outstanding Options shall be converted
into Options to purchase shares of Exchange Stock. The amount
and price of the converted options shall be determined by
adjusting the amount and price of the Options granted
hereunder on the same basis as the determination of the number
of shares of Exchange Stock the holders of Common Stock shall
receive in the Exchange Transaction.
(c) FRACTIONAL SHARES. In the event of any adjustment
in the number of shares covered by an Option, any fractional
shares resulting from such adjustment shall be disregarded,
and each such Option shall cover only the number of full
shares resulting from the adjustment.
(d) DETERMINATION OF BOARD TO BE FINAL. All
adjustments under this Section 10 shall be made by the Board,
and its determination as to what adjustments shall be made,
and the extent thereof, shall be final, binding and
conclusive.
11. RIGHTS AS A STOCKHOLDER. No shares of Common Stock shall
be issued in respect of the exercise of an Option until full payment therefor
has been made, and the applicable income tax withholding obligation has been
satisfied. The shares covered by the Option until the date a stock certificate
(or an equivalent) for such shares is issued to the holder. Except as otherwise
provided herein, no adjustments shall be made for dividend distributions or
other rights for which the record date is prior to the date such stock
certificate (or an equivalent) is issued.
12. TAX WITHHOLDING. As a condition to the exercise of any
Option or the lapse of restrictions on any shares of Common Stock, or in
connection with any other event under the Plan that gives rise to a federal or
other governmental tax withholding obligation on the part of the Company or its
Affiliates: (a) the Company may deduct or withhold (or cause to be deducted or
withheld) from any payment or distribution to an optionee whether or not
pursuant to the Plan, and (b) the Company shall be entitled to require that the
optionee remit cash to the Company (through payroll deduction or otherwise), in
each case in an amount sufficient in the opinion of the Company to satisfy such
withholding obligation. If the event giving rise to the withholding obligation
involves a transfer of shares of Common Stock, then, unless the applicable
agreement provides otherwise, at the discretion of the Committee, the optionee
may satisfy the withholding obligation described under this Section 12 by
electing to have the Company withhold shares of Common Stock (which withholding
shall be at a rate not in excess of the statutory minimum rate) or by tendering
previously owned shares of Common Stock, in each case having a Fair Market Value
equal to the amount of tax to be withheld (or by any other mechanism as may be
required to appropriate to conform with local tax and other rules).
13. AMENDMENT AND TERMINATION. The Board may amend or
terminate the Plan at any time, provided that no such action may adversely
affect the rights of the holder of any outstanding Option without his or her
consent. Except as otherwise provided in Section 10, any amendment which
increases the aggregate number of shares of Common Stock that may be issued
under the Plan, modifies the class of employees eligible to receive Options
under the Plan or otherwise requires stockholder approval shall, to the extent
required by applicable law, be subject to the approval of the Company's
stockholders. The Committee may amend the terms of any agreement or certificate
made or issued hereunder at any time from time to time provided that any
amendment which would adversely affect the rights of the holder may not be made
without his or her consent.
14. TERM OF THE PLAN. The Plan shall be effective on the
Effective Date. The Plan will terminate on the tenth anniversary of the
Effective Date, unless sooner terminated by the Board. The rights of any person
with respect to an Option granted under the Plan that is outstanding at the time
of the termination of the plan shall not be affected solely by reason of the
termination of the Plan and shall continue in accordance with the terms of the
Option (as then in effect or thereafter amended) and the Plan.
15. MISCELLANEOUS
(a) DOCUMENTATION. Each Option granted made under the
Plan shall be evidenced by a written agreement or other
written instrument the terms of which shall be established by
the Committee. To the extent not inconsistent with the
provisions of the Plan, the written agreement or other
instrument evidencing an Option shall govern the rights and
obligations of the optionee (and any person claiming through
the optionee) with respect to the Option.
(b) NO RIGHTS CONFERRED. Nothing contained herein
shall be construed to confer upon any individual any right to
be retained in the employ or other service of the Company or
its Affiliates or to interfere with the right of the Company
or its Affiliates to terminate an optionee's employment or
other services at any time.
(c) GOVERNING LAW. The Plan shall be governed by the
laws of the State of Delaware, without regard to its
principles of conflicts of law.
(d) DECISIONS AND DETERMINATIONS. All decisions or
determinations made by the Board and, except to the extent
rights or powers under the Plan are reserved specifically to
the discretion of the Board, all decisions and determinations
of the Committee, shall be final, binding and conclusive.
(e) SEVERABILITY. In the event any provision of the
Plan shall be held illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining parts
of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
(f) REQUIREMENTS OF LAW. The grant of Options and
issuance of shares under the Plan shall be subject to
compliance with all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national
securities exchanges as the Committee deems necessary or
desirable.
(g) LISTING AND OTHER CONDITIONS. As long as the
Common Stock is listed on a national securities exchange or
system sponsored by a national securities association, the
issue of any shares of Common Stock pursuant to an Option
shall be conditioned upon such shares being listed on such
exchange or system. If at any time counsel to the Company
shall be of the opinion that any sale or delivery of shares of
Common Stock pursuant to an Option is or may in the
circumstances be unlawful or result in the imposition of
excise taxes on the Company under the statutes, rules or
regulations of any applicable jurisdiction, the Company shall
have no obligation to make such sale or delivery, or to may
any application or to effect or to maintain any qualification
or registration under the Securities Act or otherwise with
respect to shares of Common Stock or Options, and the right to
exercise any Option shall be suspended until, in the opinion
of said counsel, such sale or delivery shall be lawful or
shall not result in the imposition of excise taxes on the
Company.
EXHIBIT 5.1
[Fulbright & Jaworski L.L.P. Letterhead]
September 14, 2001
Alexion Pharmaceuticals, Inc.
352 Knotter Drive
Cheshire, CT 06410
Ladies and Gentleman:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), on behalf
of Alexion Pharmaceuticals, Inc. (the "Company"), relating to 1,500,000 shares
of the Company's Common Stock, $0.0001 par value per share (the "Shares"), to be
issued under the Company's 2000 Stock Option Plan (the "Plan").
As counsel for the Company, we have examined such corporate
records, other documents, and such questions of law as we have considered
necessary or appropriate for the purposes of this opinion and, upon the basis of
such examination, advise you that in our opinion, all necessary corporate
proceedings by the Company have been duly taken to authorize the issuance of the
Shares pursuant to the Plan and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for under the Plan in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. This consent is not be construed as an admission
that we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Very truly yours,
/s/ Fulbright and Jaworski L.L.P.
EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated September 5, 2000
(except with respect to the matter discussed in Note 15 as to which the date is
September 22, 2000) included in Alexion Pharmaceuticals, Inc.'s Form 10-K for
the year ended July 31, 2000 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Hartford, Connecticut
September 12, 2001
EXHIBIT 23.2
[LETTERHEAD OF ARTHUR ANDERSEN]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated June 30, 2000 on
Prolifaron, Inc. included in Alexion Pharmaceuticals, Inc.'s Form 8-K/A dated
November 20, 2000 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
San Diego, California
September 12, 2001
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