Securities Registration: Employee Benefit Plan (s-8)
July 31 2020 - 6:03AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on July 30, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALEXION PHARMACEUTICALS, INC.
(Exact name of Registrant as specified
in its charter)
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Delaware
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13-3648318
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(State or other jurisdiction of incorporation or organization)
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(I.R.S Employer Identification No.)
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121 Seaport Boulevard, Boston, MA
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02210
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(Address of Principal Executive Offices)
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(Zip Code)
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Portola Pharmaceuticals, Inc. 2013 Equity
Incentive Plan
Portola Pharmaceuticals, Inc. Amended and Restated Inducement Plan
(Full title of the plan)
Ellen Chiniara
Executive Vice President, Chief Legal Officer and Corporate Secretary
Alexion Pharmaceuticals, Inc.
121 Seaport Boulevard,
Boston, MA 02210
(Name and address of agent for service)
(475) 230-2596
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
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Smaller reporting company
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¨
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Emerging growth company
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¨
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per
Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock, $0.0001 par value per share
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1,673,406
(1)
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$102.73 (2)
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$ 171,908,999
(2)
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$ 22,314
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(1)
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Based on (i) the number of shares exchangeable for certain unvested Portola Pharmaceuticals,
Inc. (“Portola”) stock options outstanding immediately prior to the effective time (the “Effective Time”)
of the transaction contemplated by the Agreement and Plan of Merger, dated as of May 5, 2020 (the “Merger Agreement”),
by and among the Portola, Alexion Pharmaceuticals, Inc. (“Alexion” or “the Registrant”) and Odyssey
Merger Sub Inc., a direct, wholly owned subsidiary of Alexion, as such agreement may be amended from time to time (the “Merger
Agreement” and, the transaction contemplated therein, the “Merger”) pursuant to the Portola 2013 Equity Incentive
Plan and the Portola Pharmaceuticals, Inc. Amended and Restated Inducement Plan (together, the “Plans”), multiplied
by an exchange ratio specified in the Merger Agreement (or 4,589) plus (ii) the number
of shares exchangeable for certain restricted stock units of Portola outstanding immediately prior to the Effective Time pursuant
to the Plans, multiplied by an exchange ratio specified in the Merger Agreement (or 274,514)
plus (iii) the number of shares exchangeable for certain performance-based restricted stock units of Portola outstanding immediately
prior to the Effective Time pursuant to the Portola 2013 Equity Incentive Plan, multiplied by an exchange ratio specified in the
Merger Agreement (or 92,440) plus (iv) the number of shares that remain available
for issuance pursuant to the Portola 2013 Equity Incentive Plan as of July 2, 2020, multiplied by an exchange ratio specified in
the Merger Agreement (or 1,301,863).
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(2)
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The offering price of $102.73 per share has been estimated solely for the purpose of determining the registration fee pursuant
to Rule 457(c) and 457(h)(1) on the basis of the average high and low prices of the common stock, as reported on the Nasdaq Global
Select Market on July 24, 2020.
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Pursuant to Rule 416 under the Securities Act of 1933, to the
extent additional shares of Alexion capital stock may be issued or issuable as a result of a stock split or other distribution
declared at any time by the Board of Directors while this registration statement is in effect, this registration statement is hereby
deemed to cover all of such additional capital stock.
EXPLANATORY NOTE
On May 5, 2020, Portola Pharmaceuticals,
Inc. (“Portola”), Alexion Pharmaceuticals, Inc. (“Alexion” and the “Registrant”) and Odyssey
Merger Sub, Inc., a direct, wholly owned subsidiary of Alexion (“Merger Sub”), entered into the Agreement and Plan
of Merger, dated as of May 5, 2020 (the “Merger Agreement”).
Pursuant to the Merger Agreement, at the
effective time of the Merger:
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·
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each unvested Portola stock option held by a holder who was not an
employee of Portola who has delivered and not revoked an executed restrictive covenant and release agreement (excluding
any underwater Portola stock options, which were canceled and forfeited for no consideration) were converted into a stock option
to acquire (on substantially the same terms and conditions as were applicable to such Portola stock options) shares of Alexion
common stock, with the number of shares of Alexion common stock determined by multiplying the number of Shares subject to such
Portola stock option by an exchange ratio equal to $18.00 (the “Merger Consideration”) divided by the closing price
per share of Alexion common stock on July 1, 2020 (the “Exchange Ratio”), at an exercise price equal to (A) the applicable
exercise price per Share of the Portola stock option divided by (B) the Exchange Ratio;
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·
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each restricted stock unit of Portola (“Portola
RSU”) (other than a Portola RSU held by a non-employee director) was converted into a restricted stock unit of Alexion, subject
to substantially the same terms and conditions as were applicable under such Portola RSU, with respect to the number of shares
of Alexion common stock determined by multiplying the number of shares of Portola common stock deliverable under such Portola RSU
by the Exchange Ratio;
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·
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each performance-based restricted stock unit of Portola (“Portola PSU”) was converted into a restricted stock unit
of Alexion, subject to substantially the same terms and conditions as were applicable under such Portola PSU (excluding performance
conditions), with respect to the number of shares of Alexion common stock determined by multiplying the total number of shares
of Portola common stock deliverable under such Portola PSU (assuming performance is achieved at target, or two-thirds of the number
of shares of Portola common stock subject to the award) by the Exchange Ratio; and
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·
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each share of Portola common stock that remains available for issuance pursuant to the Portola 2013 Equity Incentive Plan (the
“Residual Shares”) will be converted into shares of Alexion common stock available for issuance determined by multiplying
the number of Residual Shares by the Exchange Ratio.
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This Registration Statement on Form S-8
(this “Registration Statement”) registers 1,673,406 shares of common stock of the Registrant that may be issued and
sold upon the exercise of options or pursuant to awards issued under the Portola Equity Incentive Plan and Portola Amended and
Restated Inducement Plan (collectively, the “Plans”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
As permitted by Rule 428 under the Securities
Act of 1933, as amended (the “Securities Act”), this Registration Statement omits the information specified in Part
I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants of the Plans,
as applicable, as required by Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference herein the following
documents filed by the Registrant with the Securities and Exchange Commission (the “SEC”):
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(c)
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the Current Reports on Form 8-K filed on January 28, 2020, May 5, 2020, May 7, 2020, May 19, 2020, May 29, 2020 (and as amended
on June 3, 2020) and July 2, 2020; and
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(d)
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the description of the Common Stock, which is contained in Item 1 of the Registrant’s registration statement on Form
8-A filed by the Registrant with the SEC under Section 12 of the Exchange Act on February 12, 1996, including any amendments or
reports filed for the purpose of updating such description.
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All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by
reference from the date of filing of such documents. In no event, however, shall any information that the Registrant discloses
under Item 2.02 or Item 7.01 of any Current Report on Form 8-K (or otherwise indicates that the information is being “furnished”
on such Current Report on Form 8-K (and not “filed” for purposes of Section 18 of the
Exchange Act or otherwise subject to the liabilities of that Section)) and any corresponding exhibits thereto, which the
Registrant may furnish to the SEC from time to time, be incorporated by reference into, or otherwise become a part of, this Registration
Statement. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is incorporated or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is incorporated under the
laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (the “DGCL”), empowers a Delaware
corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not an action by or in the right
of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation,
or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise.
Section 145 of the DGCL further provides that a corporation may pay the expenses (including attorneys’ fees) incurred by
any director, officer, employee or agent of the corporation, or any person serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, in defending any civil,
criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit or
proceeding, provided that, if the advancement is being paid to a current director or officer of the corporation, such advancements
are permitted only upon receipt of an undertaking by or on behalf of such director or officer to repay the amount advanced if it
is ultimately determined that the person is not entitled to indemnification by the corporation under the DGCL. A corporation may
indemnify such person against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
A Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation to procure a judgment in its favor under the same conditions,
except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above,
the corporation must indemnify him against the expenses (including attorneys fees) which he actually and reasonably incurred in
connection therewith. The indemnification provided is not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation’s by-law, agreement, vote or otherwise.
In accordance with Section 145 of the DGCL,
Section EIGHTH of the Registrant’s Certificate of Incorporation, as amended (the “Charter”), provides that the
Registrant shall indemnify each person who is or was a director, officer, employee or agent of the Registrant (including the heirs,
executors, administrators or estate of such person) or is or was serving at the Registrant’s request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent permitted.
The indemnification provided by the Charter shall not be deemed exclusive of any other rights to which any of those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person. Expenses (including attorneys’ fees) incurred in defending a civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the Registrant in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Registrant. Section NINTH of the Charter provides that the Registrant’s
directors shall not be personally liable to the Registrant or the Registrant’s stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.
The Registrant has entered into agreements
with each of its directors and executive officers that provides that the Registrant will indemnify each director and executive
officer to the fullest extent permitted by law for claims arising in such person’s capacity as a director and/or executive
officer of the Registrant, provided that such director and/or executive officer acted in good faith and in a manner that such person
reasonably believed to be in, or not opposed to, the Registrant’s best interests and, with respect to any criminal proceeding,
had no reasonable cause to believe that his or her conduct was unlawful. The Registrant is required under such agreements to advance
such person’s expenses in connection with his or her defense, provided that the director and/or executive officer undertakes
to repay all amounts advanced if it is ultimately determined that such person is not entitled to be indemnified by the Registrant.
Insofar as the indemnification for liabilities
arising under the Securities Act may be permitted to the Registrant’s directors, officers or controlling persons pursuant
to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
* Filed herewith.
Item 9. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each
filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Boston, Commonwealth of Massachusetts, on this 30th day of July, 2020.
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ALEXION PHARMACEUTICALS, INC.
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By:
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/s/ Ludwig N. Hantson
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Ludwig N. Hantson, Ph.D.
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Chief Executive Officer
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By:
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/s/ Aradhana Sarin
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Aradhana Sarin, M.D.
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Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below
constitutes and appoints Ludwig N. Hantson and Aradhana Sarin, and each of them acting individually, his or her true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement
on Form S-8 to be filed by Alexion Pharmaceuticals, Inc., and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
* * * *
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated:
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/s/ Ludwig N. Hantson
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Chief Executive Officer and Director
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Ludwig N. Hantson, Ph.D.
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(principal executive officer)
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July 30, 2020
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/s/ Aradhana Sarin
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Chief Financial Officer
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Aradhana Sarin, M.D.
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(principal financial officer)
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July 30, 2020
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/s/ Daniel A. Bazarko
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Chief Accounting Officer
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July 30, 2020
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Daniel A. Bazarko, C.P.A.
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(principal accounting officer)
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/s/ David R. Brennan
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Chairman
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July 30, 2020
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David R. Brennan
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/s/ Felix J. Baker
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Director
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July 30, 2020
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Felix J. Baker
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/s/ Christopher J. Coughlin
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Director
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July 30, 2020
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Christopher J. Coughlin
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/s/ Deborah Dunsire
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Director
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July 30, 2020
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Deborah Dunsire
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/s/ Paul A. Friedman
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Director
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July 30, 2020
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Paul A. Friedman
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/s/ John T. Mollen
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Director
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July 30, 2020
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John T. Mollen
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/s/ Francois Nader
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Director
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July 30, 2020
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Francois Nader
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/s/ Judith A. Reinsdorf
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Director
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July 30, 2020
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Judith A. Reinsdorf
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/s/ Andreas Rummelt
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Director
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July 30, 2020
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Andreas Rummelt, Ph.D.
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