Exhibit 1.1
EXECUTION COPY
3,000,000 SHARES
ALEXION PHARMACEUTICALS,
INC.
COMMON STOCK,
PAR VALUE $0.0001 PER
SHARE
UNDERWRITING AGREEMENT
November 15, 2006
November 15, 2006
Goldman, Sachs &
Co.
Morgan Stanley & Co.
Incorporated
As representatives of the several
Underwriters
named in Schedule I
hereto
c/o Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
Dear Sirs and Mesdames:
Alexion Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), proposes to issue
and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of 3,000,000 shares (the
“Firm Shares”) and, at the election of the
Underwriters, up to 450,000 additional shares (the “Optional
Shares”) of its Common Stock, par value $0.0001. The shares
of Common Stock, par value $0.0001 per share, of the Company to be
outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the “Common Stock.” The
Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively called
the Shares.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-128085),
including a prospectus relating to the Shares, pursuant to Rule 415
under the Securities Act of 1933, as amended (the “Securities
Act”). The term “Registration Statement” means
such registration statement, including the exhibits thereto and
including any prospectus supplement relating to the Shares that is
filed with the Commission and deemed by virtue of Rule 430B to be
part of the registration statement, as amended to the date of this
Agreement. The term “Base Prospectus” means the
prospectus included in the Registration Statement in the form in
which it has most recently been filed with the Commission on or
prior to the date of this Agreement. If the Company has filed or
files an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) (the “Rule 462
Registration Statement”) under the Securities Act of 1933, as
amended (the “Securities Act”), then any reference
herein to the term “Registration Statement” shall be
deemed to include such Rule 462 Registration Statement.
The term “Preliminary
Prospectus” means any preliminary prospectus (including any
preliminary prospectus supplement) specifically relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Securities Act. The Base Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in
Section 1(b) hereof), is hereinafter called the “Pricing
Prospectus.” The form of the final prospectus relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the
Securities Act in accordance with Section 6(b) hereof is
hereinafter called the “Prospectus.” Any “issuer
free writing prospectus” as defined in Rule 433 under the
Securities Act relating to the Shares is hereinafter called an
“Issuer Free Writing Prospectus.” As used herein, the
terms “Base Prospectus,” “Pricing
Prospectus,” “Prospectus,” “Preliminary
Prospectus” and “Registration
Statement”
1
shall include in each case the documents, if
any, incorporated or deemed to be incorporated by reference therein
(it being understood that any statement contained in a document
incorporated or deemed to be incorporated by reference in the Base
Prospectus, Pricing Prospectus, Preliminary Prospectus, Prospectus
or Registration Statement shall not be deemed to constitute a part
thereof to the extent modified or superseded by a statement
contained in any subsequently filed document which also is or is
deemed to be incorporated by reference therein). The terms
“supplement” and “amendment” or
“amend” as used in this Agreement with respect to the
Registration Statement, the Base Prospectus, the Pricing Prospectus
or the Preliminary Prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), that are deemed to be incorporated by
reference therein.
1. Representations and
Warranties . The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The Company meets the
requirements for the use of Form S-3 under the Securities Act; the
Registration Statement has been declared effective by the
Commission and meets the requirements set forth in Rule 415 under
the Securities Act; no stop order suspending the effectiveness of
the Registration Statement is in effect; and no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) For the purposes of this
Agreement, the “Applicable Time” is 5:15 pm (Eastern
time) on the date of this Agreement. The Pricing Prospectus, as of
the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule II(a) hereto does not
conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein.
(c) The documents incorporated by
reference in the Pricing Prospectus and Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents contained an 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 any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act,
as
2
applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein; and no
such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule
II(b) hereto.
(d) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the
Securities Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective
date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein.
(e) The Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct
its business as described in the Pricing Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(f) Each subsidiary of the Company
has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Pricing
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free
and clear of all liens, encumbrances, equities or other
claims.
(g) At the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Shares, the Company
was not an “ineligible issuer” as defined in Rule 405
under the Act.
3
(h) This Agreement has been duly
authorized, executed and delivered by the Company.
(i) The Company has an authorized
capitalization as set forth in the Pricing Prospectus and the
authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Pricing
Prospectus and the Prospectus.
(j) All of the shares of Common
Stock outstanding prior to the issuance of the Shares have been
duly authorized and are validly issued, fully paid and
non-assessable and have been issued in compliance with state and
federal securities laws. None of the outstanding shares of Common
Stock or capital stock of the subsidiaries of the Company was
issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase
securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those accurately
described in the Pricing Prospectus and the Prospectus. The
description of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights
granted thereunder, as described in the Pricing Prospectus and the
Prospectus accurately and fairly present the information required
to be shown with respect to such plans, arrangements, options and
rights.
(k) The Shares have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non
assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(l) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision
of applicable law or the certificate of incorporation or by laws of
the Company or conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency
is required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares and required notices of the
issuances of the Shares to the Nasdaq Global Market.
(m) There has not occurred any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries or material adverse change, or any development
involving a prospective material adverse change, in or affecting
the
4
general affairs, management,
financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Pricing Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) and neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Pricing
Prospectus, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, other than as set forth in
the Pricing Prospectus.
(n) There are no legal or
governmental proceedings pending or, to the Company’s
knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement, the Pricing Prospectus
or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement, the Pricing Prospectus or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(o) Each Preliminary Prospectus
filed as part of the Registration Statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, if any, complied when so filed in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(p) The Company is not, and after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Pricing
Prospectus will not be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries
(i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(r) To the knowledge of the Company,
there are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, individually
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
5
(s) Except as specifically set forth
in the Pricing Prospectus, the Company and each of its subsidiaries
possess all licenses, certificates, authorizations and permits
issued by, and have made all declarations and filings with, the
appropriate state, federal or foreign regulatory agencies or bodies
(including those of the U.S. Food and Drug Administration (the
“FDA”), the U.S. Nuclear Regulatory Commission and any
federal, state or foreign agencies engaged in the regulation of
pharmaceuticals or biohazardous substances) which are necessary for
the ownership of their respective properties or the conduct of
their respective businesses as currently conducted as described in
the Prospectus except where any failures to possess or make the
same, individually or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole; all of such licenses, certificates, authorizations and
permits are valid and in full force and effect, except where the
invalidity of such licenses, certificates, authorizations and
permits or the failure of such licenses, certificates,
authorizations and permits to be in full force and effect would
not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and
the Company has not received notification of any revocation or
modification of any such license, certificate, authorization or
permit and has no reason to believe that any such license,
certificate, authorization or permit will not be renewed. The
studies, tests and preclinical or clinical trials, if any,
conducted by or on behalf of the Company that are described in the
Pricing Prospectus were and, if still pending, are being conducted
in all material respects in accordance with experimental protocols,
procedures and controls pursuant to, where applicable, accepted
professional scientific standards; the descriptions of the results
of such studies, tests and trials contained in the Prospectus are
accurate in all material respects; and the Company has not received
any notices or correspondence from the FDA or any foreign, state or
local governmental body exercising comparable authority requiring
the termination, suspension or material modification of any
studies, tests, or preclinical or clinical trials conducted by or
on behalf of the Company which termination, suspension or material
modification would be required to be disclosed so that the Pricing
Prospectus does not and will not contain any 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.
(t) Except as set forth in the
Pricing Prospectus, and except as could not reasonably be expected
to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, the Company and its subsidiaries
(i) own or possess the valid right to use all patents, patent
applications, trademarks, trademark registrations, service marks,
service mark registrations, trade names, copyrights, copyright
registrations, licenses, formulae, know how, and other intellectual
property rights (including trade secrets and other unpatented
and/or unpatentable proprietary confidential information, systems,
or procedures) (collectively, “Intellectual Property”)
necessary to conduct their respective businesses as described in
the Pricing Prospectus, and (ii) are not aware and have no
reason to believe that any activities of their respective
businesses do or will infringe, misappropriate, violate, or
otherwise conflict with the Intellectual Property of any other
person, and have not received notice of
6
any claim to the contrary or any
challenge by any other person to the rights of the Company and its
subsidiaries with respect to any Intellectual Property owned or
used by the Company or its subsidiaries. Except as specifically
described in the Pricing Prospectus, the Company and its
subsidiaries’ respective businesses as now conducted and as
proposed to be conducted as described in the Pricing Prospectus do
not and will not give rise to any infringement of or conflict with,
or requires license or similar fees for rights to use, any
Intellectual Property of any other person. As described in the
Pricing Prospectus, the Company has duly filed or caused to be
filed with the U.S. Patent and Trademark Office (the
“PTO”) and certain foreign and international patent
authorities all patent applications described in the Pricing
Prospectus and owned by the Company (the “Patent
Applications”). In connection with the filing of the Patent
Applications at the PTO and in other patent offices around the
world, the Company has conducted reasonable investigations of the
published literature and patent references relating to the
inventions claimed in the Patent Applications and, to the
Company’s knowledge, the Company has complied with the
PTO’s duty of candor and disclosure regarding prosecution of
the Patent Applications and made no misrepresentation in the Patent
Applications. Except as set forth in the Pricing Prospectus, 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 that would preclude the grant of a patent for
the Patent Applications, has no knowledge of any facts which would
adversely affect the Patent Applications not called to the
attention of the PTO, and has secured with appropriate legal
instruments clear title to all Patent Applications and other
Intellectual Property owned by the Company and its subsidiaries. To
the knowledge of the Company, no third party is engaging in any
activity that does or will infringe, misappropriate, violate or
otherwise conflict with the Intellectual Property owned by or
licensed to the Company or its subsidiaries, except as described in
the Pricing Prospectus and except for such activities that,
individually or in the aggregate, would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(u) Except as may have been waived
or otherwise described in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect
to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement and no holder of any security of the Company
or any subsidiary of the Company has the right to have any security
owned by such holder included in the Registration Statement or to
demand registration of any security owned by such holder during the
period ending 90 days after the date of this Agreement.
(v) PricewaterhouseCoopers LLP,
which firm has certified certain financial statements of the
Company and its subsidiaries and have audited the Company’s
internal control over financial reporting and management’s
assessment thereof, are independent certified public accountants
with respect to the Company and its consolidated subsidiaries
within the meaning of the Securities Act and the rules and
regulations of the Commission thereunder.
7
(w) The financial statements of the
Company (including all notes and schedules thereto) included or
incorporated by reference in the Registration Statement, the
Pricing Prospectus and Prospectus present fairly the financial
position, the results of operations, the statements of cash flows
and the statements of stockholders’ equity and the other
information purported to be shown therein of the Company and its
subsidiaries at the respective dates and for the respective periods
to which they apply. Such financial statements and related
schedules and notes have been prepared in conformity with United
States generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such periods
have been made. The financial statements, together with the related
notes and schedules, included in the Pricing Prospectus and the
Prospectus comply in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder. No
other financial statements or supporting schedules or exhibits are
required by the Securities Act or the rules and regulations of the
Commission thereunder to be included in the Pricing Prospectus or
the Prospectus.
(x) Neither the Company nor any of
its officers, directors or affiliates has taken or will take,
directly or indirectly, any action designed or intended to
stabilize or manipulate the price of any security of the Company,
or which caused or resulted in, or which might in the future
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the
Company.
(y) The Company and each of its
subsidiaries 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.
(z) The Company and its subsidiaries
are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are customary
in the businesses in which they are engaged or propose to engage
after giving effect to the transactions described in the Pricing
Prospectus and the Prospectus including but not limited to,
insurance covering clinical trial liability, product liability and
real or personal property owned or leased against theft, damage,
destruction, act of vandalism and all other risks customarily
insured against except where the failure to acquire or maintain
such insurance would not reasonably be expected to have a material
adverse effect on the Company and its subsidiaries taken as a
whole. All policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or the
Company’s or its subsidiaries’ respective businesses,
assets, employees, officers and directors are in full force and
effect. The Company and each of its subsidiaries are in compliance
with the terms of such policies and instruments in all material
respects. Neither the Company nor any subsidiary of the Company has
reason to believe that it will not be able to renew its existing
insurance coverage as and when
8
such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material
adverse effect on the Company, taken as a whole. Neither the
Company nor any subsidiary has been denied any insurance coverage
which it has sought or for which it has applied.
(aa) There are no rulemaking or
similar proceedings before the FDA or comparable Federal, state,
local or foreign government bodies which specifically involve the
Company or, to the Company’s knowledge, otherwise affect the
Company or any subsidiary, which, if the subject of an action
unfavorable to the Company or any subsidiary, could result in a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(bb) The Company has not received
any communication (whether written or oral) notifying the Company
as to the termination or threatened termination or modification or
threatened modification of any consulting, licensing, marketing,
research and development, cooperative or any similar agreement,
including, without limitation, the collaborative research and
license agreements described in the Pricing Prospectus, except all
such terminations, modifications or threatened terminations or
modifications as would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(cc) No consent, approval,
authorization or order of, or filing, notification or registration
with, the Nasdaq Global Market System (“Nasdaq”) is
required for the listing and trading of the Shares on the Nasdaq
Global Market except for a Notification Form relating to the
Listing of Additional Shares. The Company has taken no action
designed to, or which is likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or the
quotation of the Common Stock on the Nasdaq, nor has the Company
received any notification that the Commission or the Nasdaq is
contemplating terminating such registration or
quotation.
(dd) The Company maintains
“disclosure controls and procedures” (as defined in
Rules 13a-15(e) and 15d-15(e) of the Exchange Act); the
Company’s “disclosure controls and procedures”
are designed to ensure that all information (both financial and
non-financial) required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the rules and regulations of the Commission
thereunder, and that all such information is accumulated and
communicated to the Company’s management as appropriate to
allow timely decisions regarding required disclosure and to make
the certifications of the Chief Executive Officer and Chief
Financial Officer of the Company required under the Exchange Act
with respect to such reports; such “disclosure controls and
procedures” were effective as of the end of the quarter ended
September 30, 2006.
(ee) The Company maintains a system
of internal control over financial reporting (as such term is
defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act)
designed by the Company’s principal executive officer and
principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the
9
preparation of financial statements
for external purposes in accordance with generally accepted
accounting principles. The Company’s internal control over
financial reporting was effective as of the end of the quarter
ended September 30, 2006 and the Company is not aware of any
material weaknesses in its internal control over financial
reporting.
(ff) Since the date of the filing of
the Company’s Transition Report on Form 10-K/T for the
five-month period ended December 31, 2005, there has been no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
(gg) The Company i
