EXHIBIT 1
2,300,000 SHARES
ALEXION PHARMACEUTICALS, INC.
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
PURCHASE AGREEMENT
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October 26, 2000
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Alexion Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
proposes to sell to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Purchaser") an aggregate of
2,300,000 authorized but unissued shares (the "Firm Shares") of Common Stock,
$0.0001 par value per share (the "Common Stock"), of the Company.
The Company hereby confirms its agreement with respect to the sale of
the Firm Shares to the Purchaser.
1. REGISTRATION STATEMENT AND FINAL PROSPECTUS. A registration statement
on Form S-3 (File No. 333-47594) with respect to up to an aggregate of $300
million of common stock and warrants, including a preliminary form of prospectus
(such preliminary prospectus shall be referred to hereinafter as the "base
prospectus"), has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations ("Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the Commission;
one or more amendments to such registration statement have also been so prepared
and have been, or will be, so filed. Copies of such registration statement and
amendments and the related preliminary prospectus have been delivered to you.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus (including a term sheet meeting
the requirements of Rule 434 of the Rules and Regulations). If the Company has
elected to rely upon Rule 430A of the Rules and Regulations, it will prepare and
file a prospectus (or a term sheet meeting the requirements of Rule 434)
pursuant to Rule 424(b) that discloses the information previously omitted from
the prospectus in reliance upon Rule 430A. Such registration statement as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
Closing Date (as hereinafter defined), such registration statement, including
all documents incorporated by reference therein, as so amended (but only from
and after the effectiveness of such amendment), including information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rules 430A(b) and 434(d) of the Rules and Regulations, is
hereinafter called the "Registration Statement." The prospectus, including all
documents
incorporated by reference therein, included in the Registration Statement at the
time it is or was declared effective by the Commission, together with any
prospectus supplement filed pursuant to Rule 424(b), is hereinafter called the
"Final Prospectus," except that if any prospectus (including any term sheet
meeting the requirements of Rule 434 of the Rules and Regulations provided by
the Company for use with a prospectus subject to completion within the meaning
of Rule 434 in order to meet the requirements of Section 10(a) of the Rules and
Regulations) filed by the Company with the Commission pursuant to Rule 424(b)
(and Rule 434, if applicable) of the Rules and Regulations or any other such
prospectus provided to the Purchaser by the Company for use in connection with
the offering of the Firm Shares (whether or not required to be filed by the
Company with the Commission pursuant to Rule 424(b) of the Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is or was declared effective by the Commission, the term "Final
Prospectus" shall refer to such differing prospectus (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) from and after the
time such prospectus is filed with the Commission or transmitted to the
Commission for filing pursuant to such Rule 424(b) (and Rule 434, if applicable)
or from and after the time it is first provided to the Purchaser by the Company
for such use.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to, and agrees with, the
Purchaser as follows:
(i) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (File No. 333-47594) on Form S-3, as amended, including the
base prospectus, for registration under the Act of the offering and sale
of up to an aggregate of $300 million of common stock and warrants. The
Registration Statement has been declared effective by the Commission and
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been instituted
or overtly threatened by the Commission. The Company has included in
such Registration Statement, as amended at the Effective Date, all
information (other than such information permitted to be omitted by Rule
430A) required by the Act and the Rules and Regulations thereunder. As
filed, the Final Prospectus, or any such amendment shall contain all
information previously omitted pursuant to Rule 430A, together with all
other such required information, and, except to the extent the Purchaser
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the time this Purchase
Agreement is executed (the "Execution Time") or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
base prospectus) as the Company has advised you prior to the Execution
Time, will be included or made therein. The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x). The Company will file with the Commission a Final
Prospectus relating to the Firm Shares in accordance with Rules 430A, as
required, and 424(b).
(ii) As of the time the Registration Statement (or any
post-effective amendment thereto) is or was declared effective by the
Commission, and upon the filing or first delivery to the Purchaser of
the Final Prospectus (or any supplement to the Final Prospectus) and at
the Closing Date (as hereinafter defined), (A) the Registration
Statement and Final Prospectus (in each case, as so amended and/or
supplemented) conformed or will conform in all material respects to the
requirements of the Act and the Rules and Regulations, (B) the
Registration Statement (as so amended) did not or will not include 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, and (C) the Final Prospectus (as so
supplemented) did not or will not include an untrue statement of a
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material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they are or were made, not misleading; except
that the foregoing shall not apply to statements in or omissions from
any such document in reliance upon, and in conformity with, written
information furnished to the Company by you specifically for use in the
preparation thereof.
(iii) The financial statements of the Company, together with the
notes thereto, set forth in the Registration Statement and Final
Prospectus comply in all material respects with the requirements of the
Act and fairly present the financial condition of the Company as of the
dates indicated and the results of operations and changes in cash flows
for the periods therein specified in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise stated therein); and the supporting
schedules included in the Registration Statement present fairly the
information required to be stated therein. No other financial statements
or schedules are required to be included in the Registration Statement
or Final Prospectus. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which has expressed its
opinion with respect to the audited consolidated financial statements
filed as a part of the Registration Statement and included in the
Registration Statement and Final Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(iv) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation. Each of the Company
and its subsidiaries has full corporate power and authority to own its
properties and conduct its business as currently being carried on and as
described in the Registration Statement and Final Prospectus, and is
duly qualified to do business as a foreign corporation in good standing
in each jurisdiction in which it owns or leases real property or in
which the conduct of its business makes such qualification necessary and
in which the failure to so qualify would have a material adverse effect
upon its business, condition (financial or otherwise) or properties,
taken as a whole.
(v) Except as contemplated in the Final Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, neither the Company nor
any of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, or declared or paid any dividends or made any distribution
of any kind with respect to its capital stock; and there has not been
any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants), or any material change
in the short-term or long-term debt, or any issuance by the Company of
options, warrants, convertible securities or other rights to purchase
the capital stock of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in the general affairs, condition (financial or
otherwise), business, key personnel, property, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(vi) Except as set forth in the Final Prospectus, there is not
pending or, to the knowledge of the Company, threatened or contemplated,
any action, suit or proceeding to which the Company or any of its
subsidiaries is a party before or by any court or governmental agency,
authority or body, or any arbitrator, which might result in any material
adverse change in the condition (financial or otherwise), business, net
worth or results of operations of the Company and its subsidiaries,
taken as a whole.
(vii) There are no contracts or documents of the Company or any
of its
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subsidiaries that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations that
have not been so filed.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company, enforceable in accordance with its terms,
except as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
agreement or instrument to which the Company is a party or by which it
is bound or to which any of its property is subject, the Company's
charter or by-laws, or any order, rule, regulation or decree of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties; no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
by the Company or for the consummation by the Company of the
transactions contemplated hereby, including the issuance or sale of the
Firm Shares by the Company, except such as may be required under the Act
or state securities or blue sky laws; and the Company has full power and
authority to enter into this Agreement and to authorize, issue and sell
the Firm Shares as contemplated by this Agreement.
(ix) All of the issued and outstanding shares of capital stock of
the Company, including the outstanding shares of Common Stock, are duly
authorized and validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were
not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities, and the holders thereof
are not subject to personal liability by reason of being such holders;
the Firm Shares which may be sold hereunder by the Company have been
duly authorized and, when issued, delivered and paid for in accordance
with the terms hereof, will have been validly issued and will be fully
paid and nonassessable, and the holders thereof will not be subject to
personal liability by reason of being such holders; and the capital
stock of the Company, including the Common Stock, conforms to the
description thereof in the Registration Statement and Final Prospectus.
There are no preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer of, any shares
of Common Stock pursuant to the Company's charter, by-laws or any
agreement or other instrument to which the Company is a party or by
which the Company is bound. Except as otherwise stated in the
Registration Statement and Final Prospectus, and except for 150,000
shares of Common Stock issued upon the conversion of the Series A
Preferred Stock of the Company, neither the filing of the Registration
Statement nor the offering or sale of the Firm Shares as contemplated by
this Agreement gives rise to any rights for or relating to the
registration of any shares of Common Stock or other securities of the
Company, which have not been waived. All of the issued and outstanding
shares of capital stock of each of the Company's subsidiaries have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise described in the Registration
Statement and Final Prospectus and except for any directors' qualifying
shares, the Company owns of record and beneficially, free and clear of
any security interests, claims, liens, proxies, equities or other
encumbrances, all of the issued and outstanding shares of such stock.
Except as described in the Registration Statement and the Final
Prospectus, there are no options, warrants, agreements, contracts or
other rights in existence to purchase or acquire from the Company or any
subsidiary of the Company any shares of the capital stock of the Company
or any subsidiary of the Company. The Company has an authorized and
outstanding capitalization as of the date indicated as set forth
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in the Registration Statement and the Final Prospectus.
(x) The Company and each of its subsidiaries holds, and is
operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of its business (including those required by
the U.S. Food and Drug Administration, the U.S. Nuclear Regulatory
Commission and any federal, state or foreign agencies or bodies engaged
in the regulation of pharmaceuticals or biohazardous substances) and all
such franchises, grants, authorizations, licenses, permits, easements,
consents, certifications and orders are valid and in full force and
effect; and the Company and each of its subsidiaries is in compliance in
all material respects with all applicable federal, state, local and
foreign laws, regulations, orders and decrees; the Company has not
received any notice of proceedings relating to the revocation or
modification of any such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders, which singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could result in a material adverse effect on the Company.
(xi) The Company and its subsidiaries have good and marketable
title to all property described in the Registration Statement and Final
Prospectus as being owned by them, in each case free and clear of all
liens, claims, security interests or other encumbrances except such as
are described in the Registration Statement and the Final Prospectus;
the property held under lease by the Company and its subsidiaries is
held by them under valid, subsisting and enforceable leases with only
such exceptions with respect to any particular lease as do not interfere
in any material respect with the conduct of the business of the Company
or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or possesses
or has licenses to use all patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service ▇▇▇▇
registrations, copyrights, licenses, inventions, trade secrets and other
similar rights (such patents referred to herein as the "Patents" and all
of such intellectual property referred to collectively as the
"Intellectual Property") necessary for the conduct of the business of
the Company and its subsidiaries as currently carried on and as
described in the Registration Statement and Final Prospectus; except as
stated in the Registration Statement and Final Prospectus, to the
Company's knowledge, no name which the Company or any of its
subsidiaries uses and no other aspect of the business of the Company or
any of its subsidiaries as conducted on the date hereof involves or
gives rise to any infringement of, or license or similar fees for, any
patents, patent applications, trademarks, service marks, tradenames,
trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses, inventions, trade secrets or other similar rights of others
material to the business of the Company and neither the Company nor any
of its subsidiaries has received any notice alleging any such
infringement or fee. The Company has duly and properly filed or caused
to be filed with the U.S. Patent and Trademark Office (the "PTO") and
applicable foreign and international patent authorities all patent
applications described in the Registration Statement and the Final
Prospectus (the "Patent Applications"); in connection with the filing of
the Patent Applications, the Company conducted reasonable investigations
of the published literature and patent references relating to the
inventions claimed in such applications; to the best of the Company's
knowledge, it has complied with the PTO's duty of candor and disclosure
for the Patent Applications and has made no misrepresentation in the
Patent Applications; the Company is not aware of any facts material to a
determination of patentability regarding the Patent Applications not
called to the attention of the PTO which would preclude the grant of a
patent for the Patent Applications; and the Company has no knowledge of
any facts which would preclude it from having clear title to the Patent
Applications.
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(xiii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in breach of or
otherwise in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note,
indenture, loan agreement or any other material contract, lease or other
instrument to which it is subject or by which any of them may be bound,
or to which any of the material property or assets of the Company or any
of its subsidiaries is subject.
(xiv) The Company and its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed and are not in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect
thereto, other than any which the Company or any of its subsidiaries is
contesting in good faith or which could result in a material adverse
effect on the financial condition of the Company.
(xv) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering
and sale of the Firm Shares other than the Final Prospectus or other
materials permitted by the Act to be distributed by the Company.
(xvi) All necessary filings shall have been made and all filing
fees shall have been paid to effect the listing of the Firm Shares on
the Nasdaq National Market.
(xvii) Other than Columbus Farming Corporation ("CFC"), Alexion
Antibody Technologies, Inc. ("AAT") and Biotechnology Research and
Development Corporation, the Company owns no capital stock or other
equity or ownership or proprietary interest in any corporation,
partnership, association, trust or other entity.
(xviii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xix) Other than as contemplated by this Agreement, the Company
has not incurred any liability for any finder's or broker's fee or
agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(xx) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are, and during the periods covering
their report included in the Registration Statement and Final Prospectus
were, independent accountants with respect to the Company as required by
the Securities Act. The audited financial statements of the Company
(together with the related notes thereto) included in and incorporated
by reference in the Registration Statement present fairly in all
material respects the financial position and results of operations and
cash flows of the Company at the respective dates and for the respective
periods to which they apply, subject to normal year-end adjustments.
Such financial statements (together with the related notes thereto) have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved.
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(xxi) Neither the Company nor any of its affiliates is presently
doing business with the government of Cuba or with any person or
affiliate located in Cuba.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Purchaser shall be deemed a
representation and warranty by the Company to the Purchaser as to the matters
covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell
2,300,000 Firm Shares to the Purchaser, and the Purchaser agrees to purchase
from the Company the Firm Shares. The purchase price for each Firm Share shall
be $90.75 per share.
The Firm Shares will be delivered by the Company to you against payment
of the purchase price therefor by same day funds payable to the order of the
Company, as appropriate, at the offices of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other
location as may be mutually acceptable, at 9:00 a.m. Central time on the third
(or if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the
Exchange Act, after 4:30 p.m. Eastern time, the fourth) full business day
following the date hereof, or at such other time and date as you and the Company
determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date
of delivery being herein referred to as the "Closing Date." If you so elect,
delivery of the Firm Shares may be made by credit through full fast transfer to
the accounts at The Depository Trust Company designated by the Purchaser.
Certificates representing the Firm Shares, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company, will be made available for checking
and packaging not later than 10:30 a.m., Central time, on the business day next
preceding the Closing Date at the offices of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other
location as may be mutually acceptable.
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4. COVENANTS.
(a) The Company covenants and agrees with the Purchaser as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to
cause the Registration Statement and any post-effective amendments
thereto to become effective as promptly as possible; the Company will
notify you promptly of the time when the Registration Statement or any
post-effective amendment to the Registration Statement has become
effective or any supplement to the Final Prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) has
been filed and of any request by the Commission for any amendment or
supplement to the Registration Statement or Final Prospectus or
additional information; if the Company has elected to rely on Rule 430A
of the Rules and Regulations, the Company will prepare and file a Final
Prospectus (or term sheet within the meaning of Rule 434 of the Rules
and Regulations) containing the information omitted therefrom pursuant
to Rule 430A of the Rules and Regulations with the Commission within the
time period required by, and otherwise in accordance with the provisions
of, Rules 424(b), 430A and 434, if applicable, of the Rules and
Regulations; the Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Final Prospectus (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) that, in
your opinion, may be necessary or advisable in connection with the
distribution of the Firm Shares by the Purchaser; and the Company will
not file any amendment or supplement to the Registration Statement or
Final Prospectus (including any term sheet within the meaning of Rule
434 of the Rules and Regulations) to which you shall reasonably object
by notice to the Company after having been furnished a copy a reasonable
time prior to the filing.
(ii) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Firm Shares for
offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and the Company will
promptly use its best efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such a stop order should be issued.
(iii) Within the time during which a Final Prospectus (including
any term sheet within the meaning of Rule 434 of the Rules and
Regulations) relating to the Firm Shares is required to be delivered
under the Act, the Company will comply as far as it is able with all
requirements imposed upon it by the Act, as now and hereafter amended,
and by the Rules and Regulations, as from time to time in force, so far
as necessary to permit the continuance of sales of or dealings in the
Firm Shares as contemplated by the provisions hereof and the Final
Prospectus. If during such period any event occurs as a result of which
the Final Prospectus would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with
the Act, the Company will promptly notify you and will amend the
Registration Statement or supplement the Final Prospectus (at the
expense of the Company) so as to correct such statement or omission or
effect such compliance.
(iv) The Company will use its best efforts to qualify the Firm
Shares for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so
long as required for the distribution of the Firm Shares, except that
the Company shall not be required in connection therewith to qualify as
a foreign corporation or to
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execute a general consent to service of process in any state.
(v) The Company will furnish to the Purchaser copies of the
Registration Statement (one of which will be signed and will include all
exhibits), the Final Prospectus, and all amendments and supplements
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) to such documents, in each case as soon as available
and in such quantities as you may from time to time reasonably request.
(vi) During a period of two years commencing with the date
hereof, the Company will furnish to the Purchaser copies of all periodic
and special reports furnished to the stockholders of the Company and all
information, documents and reports filed with the Commission, Nasdaq, or
any securities exchange.
(vii) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15
months after the end of the Company's current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month
period beginning after the effective date of the Registration Statement
that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Rules and Regulations.
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective under the provisions of Section 8(a) hereof or is terminated,
will pay or cause to be paid, upon receipt of a reasonably detailed
accounting, (A) all expenses (including transfer taxes allocated to the
respective transferees) incurred in connection with the delivery to the
Purchaser of the Firm Shares, (B) all expenses and fees (including,
without limitation, fees and expenses of the Company's accountants and
counsel but, except as otherwise provided below, not including fees of
the Purchaser's counsel) in connection with the preparation, printing,
filing, delivery, and shipping of the Registration Statement (including
the financial statements therein and all amendments, schedules, and
exhibits thereto), the Firm Shares, the Final Prospectus, and any
amendment thereof or supplement thereto, and the printing, delivery, and
shipping of this Agreement and other underwriting documents, including
any blue sky memoranda, (C) all filing fees and fees and disbursements
of the Purchaser's counsel incurred in connection with the qualification
of the Firm Shares for offering and sale by the Purchaser or by dealers
under the securities or blue sky laws of the states and other
jurisdictions which you shall designate in accordance with Section 4(d)
hereof, (D) the fees and expenses of any transfer agent or registrar,
(E) the filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Firm Shares, (F) listing fees, if any, and (G) all other costs and
expenses incident to the performance of its obligations hereunder that
are not otherwise specifically provided for herein. If the sale of the
Firm Shares provided for herein is not consummated by reason of action
by the Company pursuant to Section 8(a) hereof which prevents this
Agreement from becoming effective, or by reason of any failure, refusal
or inability on the part of the Company to perform any agreement on its
part to be performed, or because any other condition of the Purchaser's
obligations hereunder required to be fulfilled by the Company is not
fulfilled, upon receipt of a reasonably detailed accounting, the Company
will reimburse the Purchaser for all out-of-pocket disbursements
(including fees and disbursements of counsel) incurred by the Purchaser
in connection with their investigation, preparing to market and
marketing the Firm Shares or in contemplation of performing their
obligations hereunder. The Company shall not in any event be liable to
any of the Purchaser for loss of anticipated profits from the
transactions covered by this Agreement.
(ix) The Company has not taken and will not take, directly or
9
indirectly, any action designed to or which might reasonably be expected
to cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Firm Shares, and has not effected any sales of
Common Stock which are required to be disclosed in response to Item 701
of Regulations S-K under the Act which have not been so disclosed in the
Registration Statement, other than as described in the Company's
Exchange Act filings.
(x) Except as contemplated by this Agreement, the Company will
not incur any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(xi) The Company will inform the Florida Department of Banking
and Finance at any time prior to the consummation of the distribution of
the Firm Shares by the Purchaser if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba. Such information will be provided within 90 days after the
commencement thereof or after a change occurs with respect to previously
reported information.
5. CONDITIONS OF PURCHASER'S OBLIGATIONS. The obligations of the
Purchaser hereunder are subject to the accuracy, as of the date hereof and at
the Closing Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Company contained herein, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) All filings required by Rules 424, 430A and 434 of the Rules and
Regulations shall have been timely made; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereof shall have
been issued; no proceedings for the issuance of such an order shall have been
initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement or the Final
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) The Purchaser shall not have advised the Company that the
Registration Statement or the Final Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), contains an untrue statement of fact which, in your
opinion, is material, or omits to state a fact which, in your opinion, is
material and is required to be stated therein or necessary to make the
statements therein not misleading.
(c) Except as contemplated in the Final Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Final Prospectus, neither the Company nor any of its subsidiaries shall
have incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock; and there
shall not have been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants), or any material change in the
short-term or long-term debt of the Company, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock
of the Company or any of its subsidiaries, or any material adverse change or any
development involving a prospective material adverse change (whether or not
arising in the ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, net worth or
results of operations of the Company and its subsidiaries, taken as a whole,
that, in your judgment, makes it impractical or inadvisable to offer or deliver
the Firm Shares on the terms and in the manner contemplated in the Final
Prospectus.
10
(d) On the Closing Date, there shall have been furnished to the
Purchaser, the opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company,
dated such Closing Date and addressed to the Purchaser, to the effect that:
(i) Each of the Company and CFC has been duly organized and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and CFC has full
corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the
Registration Statement and Final Prospectus, and the Company is duly
qualified to do business as a foreign corporation and is in good
standing in Connecticut.
(ii) The capital stock of the Company conforms as to legal
matters to the description thereof contained in the Final Prospectus.
All of the issued and outstanding shares of the capital stock of the
Company have been duly authorized and validly issued and are fully paid
and nonassessable, and the holders thereof are not subject to personal
liability by reason of being such holders. The Firm Shares to be issued
and sold by the Company hereunder have been duly authorized and, when
issued, delivered and paid for in accordance with the terms of this
Agreement, will have been validly issued and will be fully paid and
nonassessable, and the holders thereof will not be subject to personal
liability by reason of being such holders. Except as otherwise stated in
the Registration Statement and Final Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's charter, by-laws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound. To the best of such counsel's knowledge,
except for 150,000 shares of Common Stock issued upon the conversion of
the Series A Preferred Stock of the Company, neither the filing of the
Registration Statement nor the offering or sale of the Firm Shares as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any shares of Common Stock or other securities of
the Company, except those rights which have been waived. To the best of
such counsel's knowledge, except as described in the Registration
Statement and Final Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company any shares of the capital stock of the Company.
(iii) All of the issued and outstanding shares of capital stock
of CFC have been duly and validly authorized and issued and are fully
paid and nonassessable, and, to the best of such counsel's knowledge,
the Company owns of record and beneficially, free and clear of any
security interests, claims, liens, proxies, equities or other
encumbrances, all of the issued and outstanding shares of such stock. To
the best of such counsel's knowledge, except as described in the
Registration Statement and Final Prospectus, there are no options,
warrants, agreements, contracts or other rights in existence to purchase
or acquire from CFC or the Company any shares of the capital stock of
CFC.
(iv) To the best of such counsel's knowledge, the Company owns of
record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the
issued and outstanding shares of capital stock of AAT.
(v) The Registration Statement has become effective under the Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
such counsel, threatened by the Commission.
11
(vi) The descriptions in the Registration Statement and Final
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents fairly present in all material respects the
information required to be shown; and such counsel does not know of any
statutes or legal or governmental proceedings required to be described
in the Final Prospectus that are not described as required, or of any
contracts or documents of a character required to be described in the
Registration Statement or Final Prospectus or included as exhibits to
the Registration Statement that are not described or included as
required.
(vii) The Company has full corporate power and authority to enter
into this Agreement, and this Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid, legal and
binding obligation of the Company enforceable in accordance with its
terms (except as rights to indemnity hereunder may be limited by federal
or state securities laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity); the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule or regulation, any agreement or instrument
known to such counsel to which the Company is a party or by which it is
bound or to which any of its property is subject, the Company's charter
or by-laws, or any order or decree known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its respective properties; and no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
by the Company or for the consummation by the Company of the
transactions contemplated hereby, including the issuance or sale of the
Firm Shares by the Company, except such as may be required under the Act
or state securities laws.
(viii) The Registration Statement and the Final Prospectus, and
any amendment thereof or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), comply as
to form in all material respects with the requirements of the Act and
the Rules and Regulations.
In addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Final Prospectus, such counsel
has participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company,
representatives of the Purchaser and representatives of counsel for the
Purchaser, at which the contents of the Registration Statement and the Final
Prospectus and related matters were discussed and at which such counsel inquired
of the representatives of the Company as to the materiality of the facts
disclosed to such counsel and, although such counsel does not pass upon, and
does not assume any responsibility for, the accuracy, completeness or fairness
of any statement contained in the Registration Statement or the Final Prospectus
and such counsel has made no independent check or verification thereof, based in
part upon the foregoing, (relying as to materiality to a large extent upon the
officers and representatives of the Company), no facts have come to such
counsel's attention that have led such counsel to believe that the Registration
Statement (except as to the financial statements and notes thereto and other
financial and statistical data included therein as to which such counsel need
not express any opinion or belief,) as of the date of effectiveness contained an
untrue statement of material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading or that the Final Prospectus (except as to the financial statements
and the notes thereto and other financial and statistical data included therein
or excluded therefrom as to which such counsel need not express any opinion or
belief), as of its date or as of the date of such opinion, contained or contains
an untrue statement of material fact or
12
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
Notwithstanding anything herein to the contrary, it is understood and
agreed that other counsel to the Company are rendering opinions with respect to
(i) the sections of the Final Prospectus entitled "Risk Factors -- If we cannot
protect the confidentiality and proprietary nature of our trade secrets, our
business and competitive position will be harmed," and "Risk Factors -- If we
are found to be infringing on patents owned by others, we may be forced to
obtain a license to continue the sale or development of our drugs and pay
damages," and (ii) the sections of the Final Prospectus entitled "Risk Factors -
If we do not obtain regulatory approval for our drug products we will not be
able to sell our drug products," and "Risk Factors -- If our business and
products, even after regulatory approval is obtained, fail to comply with
regulatory requirements, our ability to sell products and conduct business will
be harmed," and no opinions are expressed herein with respect to such sections
or matters.
In rendering any such opinion, such counsel may state that such counsel
(i) expresses no opinion as to the laws of any jurisdiction other than the laws
of the State of New York, the Delaware General Corporation Law and the federal
laws of the United States, (ii) has assumed, without independent verification,
that the laws of the State of Minnesota are identical in all respects to the
laws of the State of New York, noting that the laws of the State of Minnesota
are likely to differ from the laws of the State of New York with respect to the
matters covered by such counsel's opinion, that even if such laws were the same
as the laws of the State of New York, judicial interpretations thereto in
Minnesota may differ from judicial interpretations by New York courts and that
such differences may be material, and (iii) expresses no opinions concerning the
Federal Food, Drug, and Cosmetic Act or related rules and regulations or any
intellectual property laws, statutes, rules or other regulation.
In rendering such opinion such counsel may rely (i) as to matters of law
other than New York, Delaware and federal law, upon the opinion or opinions of
local counsel provided that the extent of such reliance is specified in such
opinion and that such counsel shall state that although such counsel is not
admitted to practice law in such jurisdiction, it has no reason to believe that
they and you are not entitled to rely on such opinion and (ii) as to matters of
fact, to the extent such counsel deems reasonable upon certificates of public
officials and officers of the Company and its subsidiaries provided that the
extent of such reliance is specified in such opinion.
(e) On the Closing Date, there shall have been furnished to the
Purchaser the opinion of ▇▇▇▇ ▇▇▇▇▇▇, Esquire, special patent counsel for the
Company, dated such Closing Date and addressed to you, to the effect that:
(i) such counsel represents the Company in certain matters
relating to intellectual property, including patents, and is familiar
with the technology used by the Company in its business and the manner
of its use and has read the portions of the Registration Statement and
the Final Prospectus entitled "BUSINESS-Patents and Proprietary Rights"
and "RISK FACTORS-Risks Related to Our Business-If we are unable to
protect our proprietary technology, we may not be able to compete
effectively" (collectively, the "Patent Language");
(ii) the Patent Language contains accurate descriptions of the
Company's Patents, Patent Applications and patents licensed to the
Company and the statements in the Patent Language therein insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
13
(iii) such counsel has reviewed the Company's Patent Applications
filed in the United States and outside the United States and in the
opinion of such counsel, the Company's Patent Applications have been
properly prepared and filed on behalf of the Company, and are being
diligently pursued by the Company; the inventions described in the
Company's Patent Applications are assigned or licensed to the Company;
to such counsel's knowledge, no other entity or individual has any right
or claim in any Company inventions or Company's Patent Applications made
solely by the Company, or any patent to be issued therefrom, and in such
counsel's opinion each of the Company's Patent Applications discloses
patentable subject matter; to such counsel's knowledge, there are no
legal or governmental proceedings pending (other than those relating to
the Patent Applications) relating to the Company, the claimed inventions
of the Company's Patents or the Company's Intellectual Property, and to
such counsel's knowledge, no such material proceedings are threatened or
contemplated by governmental authorities or others;
(iv) such counsel has no knowledge of any facts which would
preclude the Company from having valid license rights or clear title to
the Company's Patents, and based on representations by the Company that
no interests have been conveyed to third parties which have not been
recorded in the PTO, the Company has clear record title to the Company's
Patents free and clear of any liens or encumbrances that have been
recorded with the PTO;
(v) to the best of such counsel's knowledge, the Company has
complied with the PTO duty of candor and disclosure for each of the
Company's patents, and such counsel has no knowledge that the Company
lacks or will be unable to obtain any rights or licenses to use all
Intellectual Property necessary for the conduct of its business as now
proposed to be conducted by the Company as described in the Final
Prospectus;
(vi) except as disclosed in the Final Prospectus, such counsel
has no knowledge of any facts material to a determination of
patentability regarding the Company's Patent Applications not called to
the attention of the PTO, and is unaware of any facts not called to the
attention of the PTO which would preclude the grant of a patent for the
Company's Patent Applications;
(vii) except as disclosed in the Final Prospectus, such counsel
is not aware of any basis for a finding of unenforceability or
invalidity of any Company Intellectual Property, and to the best of such
counsel's knowledge, the Company has not received any notice of
infringement of or conflict with rights or claims of others with respect
to any Intellectual Property owned or used by the Company;
(viii) based on a review of the third party rights made known to
counsel and discussion with Company scientific personnel, (except as
disclosed in the Final Prospectus) such counsel has no knowledge of any
patent rights of others which are or would be infringed by specific
products or processes referred to in the Final Prospectus, which
infringement, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any material
adverse effect on the condition, financial or otherwise, or in the
earnings, business or operations of the Company; and
(ix) such counsel (A) has no reason to believe that the Patent
Language contained in the Registration Statement and the Final
Prospectus included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or
14
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) has no
reason to believe that the Patent Language contained in the Final
Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(f) On the Closing Date, there shall have been furnished to the
Purchaser, the opinion of Venable, Baetjer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, special
regulatory counsel for the Company, dated such Closing Date and addressed to
you, to the effect that:
(i) such counsel represents the Company in certain matters
relating to the United States Federal Food, Drug and Cosmetic Act (the
"FFDC Act") and related governmental regulatory matters;
(ii) such counsel has read the portions of the Registration
Statement and Final Prospectus entitled "BUSINESS-Government Regulation"
and "RISK FACTORS-If we fail to obtain regulatory approval of our
product candidates, or if regulatory approval is delayed for any reason,
we will be unable to commercialize and sell our products" (collectively
the "Regulatory Language"), and in such counsel's opinion, insofar as
the Regulatory Language constitutes a description of the FFDC Act and
FDA regulations or other requirements, the Regulatory Language is
accurate and complete in all material respects and fairly presents such
matters; and
(iii) such counsel (A) has no reason to believe that the
Regulatory Language contained in the Registration Statement and the
Final Prospectus included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) has no
reason to believe that the Regulatory Language contained in the Final
Prospectus contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(g) On the Closing Date, there shall have been furnished to the
Purchaser, such opinion or opinions from ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel
for the Purchaser, dated such Closing Date and addressed to you, with respect to
the formation of the Company, the validity of the Firm Shares, the Registration
Statement, the Final Prospectus and other related matters as you reasonably may
request, and such counsel shall have received such papers and information as
they request to enable them to pass upon such matters.
(h) On the Closing Date, the Purchaser shall have received a letter
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated such Closing Date and addressed to you, confirming
that they are independent public accountants within the meaning of the Act and
are in compliance with the applicable requirements relating to the
qualifications of accountants under Rule 2-01 of Regulation S-X of the
Commission, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Final Prospectus, as of a date
not more than five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and other
matters covered by its letter delivered to you concurrently with the execution
of this Agreement, and the effect of the letter so to be delivered on such
Closing Date shall be to confirm the conclusions and findings set forth in such
prior letter.
15
(i) On the Closing Date, there shall have been furnished to you, as
the Purchaser, a certificate, dated such Closing Date and addressed to you,
signed by the chief executive officer and by the chief financial officer of the
Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at
and as of such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification
of the Firm Shares for offering or sale has been issued, and no
proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory
body; and
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Final Prospectus, and any amendments
thereof or supplements thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), and (A) such
documents contain all statements and information required to be included
therein, the Registration Statement, or any amendment thereof, does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Final Prospectus, as amended
or supplemented, does not include any untrue statement of material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amended or
supplemented prospectus which has not been so set forth, (C) subsequent
to the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, neither the Company nor
any of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect to
its capital stock, and except as disclosed in the Final Prospectus,
there has not been any change in the capital stock (other than a change
in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants), or any
material change in the short-term or long-term debt, or any issuance of
options, warrants, convertible securities or other rights to purchase
the capital stock, of the Company, or any of its subsidiaries, or any
material adverse change or any development involving a prospective
material adverse change (whether or not arising in the ordinary course
of business), in the general affairs, condition (financial or
otherwise), business, key personnel, property, net worth or results of
operations of the Company and its subsidiaries, taken as a whole, and
(D) except as stated in the Registration Statement and the Final
Prospectus, there is not pending, or, to the knowledge of the Company,
threatened or contemplated, any action, suit or proceeding to which the
Company or any of its subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which might
result in any material adverse change in the condition (financial or
otherwise), business or results of operations of the Company and its
subsidiaries, taken as a whole.
(j) The Company shall have furnished to you and counsel for the
Purchaser such additional documents, certificates and evidence as you or they
may have reasonably requested.
(k) All necessary filings shall have been made as required and all
filing fees shall have been paid to effect the listing of the Firm Shares on the
Nasdaq National Market.
(l) On the Closing Date, there shall have been furnished to the
Purchaser the opinion
16
of Golenbock, Eiseman, Assor & ▇▇▇▇, dated such Closing Date and addressed to
you, to the effect that:
(i) Alexion Antibody Technologies, Inc. ("AAT") has been duly
organized under the laws of California. AAT has full corporate power and
authority to own its properties and conduct its business as currently
being carried on and as described in the Registration Statement and
Final Prospectus.
(ii) All of the issued and outstanding shares of capital stock of
AAT has been duly and validly authorized and issued and are fully paid
and nonassesable. To the best of such counsel's knowledge, except as
described in the Registration Statement and Final Prospectus, there are
no options, warrants, agreements, contracts or other rights in existence
to purchase or acquire from the Company or AAT any shares of the capital
stock of AAT.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and counsel for the Purchaser. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company, agrees to indemnify and hold harmless the Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
the Purchaser may become subject, under the Act or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company) insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) of the Rules and Regulations, if applicable, the Final Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Purchaser for any legal or other expenses reasonably incurred
by it in connection with investigating or defending against such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Final Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by you specifically for use in the preparation thereof.
In addition to their other obligations under this Section 6(a), the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 6(a), they will reimburse the Purchaser on a monthly basis for all
reasonable legal fees or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse the
Purchaser for such expenses and the possibility that such payments might later
be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Purchaser shall promptly return it to the party or parties that
made such payment, together with interest, compounded daily, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to time by the Wall Street Journal
(the "Prime Rate"). Any such
17
interim reimbursement payments which are not made to the Purchaser within 30
days of a request for reimbursement shall bear interest at the Prime Rate from
the date of such request. This indemnity agreement shall be in addition to any
liabilities which the Company may otherwise have.
(b) The Purchaser will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Purchaser), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Final Prospectus, or any amendment or supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Final
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by you specifically
for use in the preparation thereof, and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Purchaser, it is advisable for the
Purchaser to be represented by separate counsel, the Purchaser shall have the
right to employ a single counsel in which event the reasonable fees and expenses
of such separate counsel shall be borne by the indemnifying party or parties and
reimbursed to the Purchaser as incurred (in accordance with the provisions of
the second paragraph in subsection (a) above). An indemnifying party shall not
be obligated under any settlement agreement relating to any action under this
Section 6 to which it has not agreed in writing.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchaser on the other from the offering
of the Firm Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchaser on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchaser on the other shall be deemed to be in the same proportion as
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the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Purchaser. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Purchaser and the parties' relevant
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Purchaser agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of 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 against any action or claim
which is the subject of this subsection (d).
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Purchaser within the meaning of the Act; and the obligations of the Purchaser
under this Section 6 shall be in addition to any liability that the Purchaser
may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his consent, is named in
the Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the Purchaser and
the Company contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Purchaser or any controlling person thereof, or the Company or any of its
officers, directors, or controlling persons, and shall survive delivery of, and
payment for, the Firm Shares to and by the Purchaser hereunder.
8. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall immediately become effective upon execution
by all of the parties hereto.
(b) The Purchaser shall have the right to terminate this Agreement by
giving notice as hereinafter specified at any time at or prior to the Closing
Date, if (i) the Company shall have failed, refused or been unable, at or prior
to such Closing Date, to perform any agreement on its part to be performed
hereunder, (ii) any other condition of the Purchaser's obligations hereunder is
not fulfilled, (iii) trading of the Company's Common Stock or trading on the New
York Stock Exchange or the American Stock Exchange shall have been wholly
suspended, (iv) minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the New
York Stock Exchange or the American Stock Exchange, by such Exchange or by order
of the Commission or any other governmental authority having jurisdiction, (v) a
banking moratorium shall have been declared by Federal, New York or Minnesota
authorities, or (vi) there has occurred any material adverse change in the
financial markets in the United States or an outbreak of major hostilities (or
an escalation thereof) in which the United States is involved, a declaration of
war by Congress, any other substantial national or international calamity or any
other event or occurrence of a similar character shall have occurred since the
execution of this Agreement that, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Firm Shares. Any such termination shall be without liability of any party to any
19
other party except that the provisions of Section 4(a)(viii) and Section 6
hereof shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter. If the
Company elects to prevent this Agreement from becoming effective, you shall be
notified by the Company by telephone or telegram, confirmed by letter.
9. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing Date
to sell and deliver the number of Firm Shares which it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any non-defaulting party.
No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
10. INFORMATION FURNISHED BY PURCHASER. The statements set forth in the
second paragraph of text under the caption "Underwriting" concerning the terms
of the offering by the Purchaser in the Final Prospectus constitute, to the
extent such statements relate to the Purchasers, the written information
furnished by or on behalf of the Purchaser referred to in Section 2 and Section
6 hereof.
11. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Purchaser shall be
mailed, telegraphed or delivered to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Company,
shall be mailed, telegraphed or delivered to it at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, or to such other address as the
person to be notified may have requested in writing. All notices given by
telegram shall be promptly confirmed by letter. Any party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Firm Shares from the
Purchaser.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and the Purchaser in accordance with its terms.
Very truly yours,
ALEXION PHARMACEUTICALS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇▇▇▇, M.D.
President and Chief Executive Officer
Confirmed as of the date first
above mentioned
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
By /s/ U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
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