<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Amendment No. 1
Under the Securities Exchange Act of 1934
MEDIMMUNE, INC.
---------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
--------------------------------------
(Title of Class of Securities)
584699-10-2
-----------
(CUSIP Number)
DR. ANDERS HOVE
GRAFENAUWEG 4, 6301 ZUG CH/SWITZERLAND
011-41-41-724-5959
------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Daniel L. Goelzer, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
January 22, 1998
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting
<PAGE> 2
beneficial ownership of five percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
<PAGE> 3
CUSIP No. 5894699-10-2
- -----------------------
- --------------------------------------------------------------------------------
(1) Name of Reporting Person
Biotech Target S.A.
S.S. or I.R.S. Identification No. of Above Person
Not applicable: Foreign Corporation
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) [ ]
of a Group* (b) [x]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds*
AF
- --------------------------------------------------------------------------------
(5) Check box if disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Panama
- --------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 0 by Biotech Target S.A.
by Each Reporting -------------------------------------------------
Person With (8) Shared Voting Power
2,753,000 by Biotech Target
S.A.(See Item 5)
-------------------------------------------------
(9) Sole Dispositive Power
0 by Biotech Target S.A.
-------------------------------------------------
(10) Shared Dispositive Power
2,753,000 by Biotech Target
S.A.(See Item 5)
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,753,000 shares of common stock, par value of $.01 per share (See Item
5).
- --------------------------------------------------------------------------------
<PAGE> 4
(12) Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
10.5%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
<PAGE> 5
CUSIP No.584699-10-2
- ---------------------
- --------------------------------------------------------------------------------
(1) Name of Reporting Person
BB Biotech AG
S.S. or I.R.S. Identification No. of Above Person
Not applicable: Foreign Corporation
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) [ ]
of a Group* (b) [x]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds
WC
- --------------------------------------------------------------------------------
(5) Check Box is Disclosure of Legal Proceedings is required
Pursuant to Items 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Switzerland
- --------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 0 by BB Biotech AG
by Each Reporting -------------------------------------------------
Person With (8) Shared Voting Power
2,753,000 by BB Biotech AG
(See Item 5)
-------------------------------------------------
(9) Sole Dispositive Power
0 by BB Biotech AG
-------------------------------------------------
(10) Shared Dispositive Power
2,753,000 by BB Biotech AG
(See Item 5)
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,753,000 shares of common stock, par value of $.01 per share (See Item 5).
- --------------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11)
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Excludes Certain Shares* [ ]
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
10.5%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC, CO
- --------------------------------------------------------------------------------
<PAGE> 7
Schedule 13D Amendment No. 1
This Amendment No. 2 reports the acquisition by BB Biotech AG ("BB
Biotech") and Biotech Target S.A. ("Biotech Target") of additional securities
of MedImmune, Inc. ("MedImmune").
Item 3. Source and Amount of Funds or Other Consideration
Biotech Target purchased 1,000,000 shares of common stock, $.01 par
value per share, of MedImmune (the "Common Stock") in a privately negotiated
transaction pursuant to that certain Subscription Agreement dated January 12,
1998 by and between MedImmune and Biotech Target (the "Agreement") for an
aggregate consideration of $39,000,000. Biotech Target also purchased
26,750 shares of Common Stock in a series of open market transactions for an
aggregate consideration of $10,134,275.00. Biotech Target used capital to
purchase the aforementioned shares of Common Stock, which, in turn, was working
capital supplied by BB Biotech. BB Biotech is publicly traded on the Zurich
Stock Exchange, and its shareholders are both private and institutional
investors.
<PAGE> 8
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) BB Biotech may be deemed to be the indirect beneficial owner
of the 2,753,000 shares of Common Stock held directly by Biotech Target as of
February 6, 1998, which represents approximately 10.5% of the outstanding
shares of Common Stock. No shares of the Common Stock are directly owned
by BB Biotech. To the best knowledge of BB Biotech and Biotech Target,
no director or executive officer of BB Biotech or Biotech Target owns
any shares of the Common Stock.
(b) The number of shares of Common Stock to which there is sole
power to vote or to direct the vote, shared power to vote or to direct the
vote, sole power to dispose or to direct the disposition, or shared power to
dispose or direct the disposition, is set forth in the cover pages hereof and
such information is incorporated herein by reference. BB Biotech, through its
ownership of Biotech Target, may be deemed to beneficially own the shares of
MedImmune Common Stock which are held by Biotech Target within the meaning of
Regulation 13D under the Exchange Act, and may be deemed to share with Biotech
Target the power to vote, or direct the vote of, and the power to dispose of or
direct the disposition of, the aggregate 2,753,000 shares of Common Stock held
by Biotech Target.
(c) On January 22, 1998 Biotech Target purchased 1,000,000 shares
of Common Stock in a privately negotiated transaction pursuant to the Agreement
for an aggregate consideration of $39,000,000. Biotech Target also engaged in
the following transactions with respect to the Common Stock. Each of these
transactions was completed on the NASDAQ stock market.
<TABLE>
<CAPTION>
- -----------------------------------------------------------
Date Transaction Amount Price per
Share
- -----------------------------------------------------------
<S> <C> <C> <C>
12/8/97 Bought 25,000 $39.13
- -----------------------------------------------------------
12/9/97 Bought 25,000 $38.93
- -----------------------------------------------------------
12/9/97 Bought 30,000 $38.81
- -----------------------------------------------------------
12/11/97 Bought 10,000 $38.38
- -----------------------------------------------------------
12/11/97 Bought 40,000 $38.34
- -----------------------------------------------------------
12/15/97 Bought 50,000 $39.75
- -----------------------------------------------------------
12/30/97 Bought 87,500 $39.97
- -----------------------------------------------------------
</TABLE>
As of February 6, 1998, Biotech Target holds 10.5% of the outstanding
shares of MedImmune.
<PAGE> 9
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
Pursuant to the Agreement, MedImmune and Biotech Target have agreed to
the following provisions as they relate to the shares of Common Stock:
(a) Registration Rights. MedImmune has provided Biotech Target
with certain registration rights with respect to the resale of shares of Common
Stock held by Biotech Target. Among other things, MedImmune has agreed to
prepare and file a registration statement on Form S-3 with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, to register
the resale of the shares as soon as is practicable after January 12, 1998 and
to use its best efforts to cause such registration statement to be declared
effective as soon as practicable.
(b) Reference to the Agreement. The response to this Item 6 is
qualified in its entirety by reference to the Agreement, the full text of which
is filed as Exhibit 5 hereto and incorporated herein by reference.
Except for the Agreement, neither BB Biotech nor Biotech Target nor, to
the best of their knowledge, any of the executive officers or directors of
either BB Biotech or Biotech Target, is a party to any contract, arrangement,
understanding, or relationship (legal or otherwise) with any person with
respect to any securities of MedImmune (including the shares of Common Stock),
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, divisions of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1: Translation of minutes of the October 18, 1995, Board of
Directors Meeting of Biotech Target (evidencing a power of
attorney in favor of Dr. Andreas Bremer).*
Exhibit 2: Translation of minutes of the January 3, 1997 Board of
Directors Meeting of Biotech Target (evidencing a power of
attorney in favor of Dr. Anders Hove).*
Exhibit 3: Translation of evidence of a power of attorney in favor of
Victor Bischoff and Hans-Joerg Graf on behalf of BB Biotech.**
Exhibit 4: Agreement by and between BB Biotech and Biotech Target with
respect to the filing of this disclosure statement.
Exhibit 5: Subscription Agreement between Biotech Target and MedImmune
dated January 12, 1998.
- -------------
<PAGE> 10
* See Powers of Attorney, attached as Exhibits 1 and 2 to the Schedule 13D
related to Alexion Pharmaceuticals, Inc. filed with the Securities and Exchange
Commission on September 18, 1997, which Exhibit is incorporated by reference
herein.
** See Power of Attorney, attached as an Exhibit 99.E to the Schedule 13D
relating to Biogen, Inc. filed with the Securities and Exchange Commission on
June 2, 1994, which Exhibit is incorporated by reference herein.
<PAGE> 11
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
BB BIOTECH AG
Date: February 6, 1998 By: /s/ Hans-Joerg Graf
-------------------------
Name: Hans-Joerg Graf
-----------------------
Date: February 6, 1998 By: /s/ Dr. Victor Bischoff
-------------------------
Name: Dr. Victor Bischoff
-----------------------
BIOTECH TARGET, S.A.
Date: February 6, 1998 By: /s/ Dr. Andreas Bremer
-------------------------
Name: Dr. Andreas Bremer
-----------------------
Date: February 6, 1998 By: /s/ Dr. Anders Hove
-------------------------
Name: Dr. Anders Hove
-----------------------
<PAGE> 1
EXHIBIT 4
JOINT FILING AGREEMENT
We, the undersigned, hereby express our agreement that the attached
Schedule 13D (including all amendments thereto) is filed on behalf of each of
the undersigned.
BB BIOTECH AG
Date: February 6, 1998 By: /s/ Hans-Joerg Graf
-------------------------
Name: Hans-Joerg Graf
-----------------------
Date: February 6, 1998 By: /s/ Dr. Victor Bischoff
-------------------------
Name: Dr. Victor Bischoff
-----------------------
BIOTECH TARGET, S.A.
Date: February 6, 1998 By: /s/ Dr. Andreas Bremer
-------------------------
Name: Dr. Andreas Bremer
-----------------------
Date: February 6, 1998 By: /s/ Dr. Anders Hove
-------------------------
Name: Dr. Anders Hove
-----------------------
<PAGE> 1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of
the 12th day of January 1998, between MedImmune, Inc. (the "Company"), a
Delaware corporation with its principal offices at 35 West Watkins Mill Road,
Gaithersburg, MD 20878, and Biotech Target, S.A. (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject
to the terms and conditions of this Agreement, the Company has authorized the
sale of shares of the common stock, par value $.01 per share (the "Shares"), of
the Company.
SECTION 2. Agreement to Sell and Purchase the Shares.
At the Closing (as defined in Section 3), the Company will sell to the
Purchaser, and the Purchaser will buy from the Company, upon the terms and
conditions hereinafter set forth, the number of Shares shown below at the
purchase price indicated:
<TABLE>
<CAPTION>
Number of Shares
to be
Purchased Price Per Share Aggregate Price
--------- --------------- ---------------
<S> <C> <C>
1,000,000 $39.00 $39,000,000
</TABLE>
The Company proposes to enter into subscription agreements in
substantially the same form as this Agreement with certain other investors (the
"Other Purchasers") and expects to complete sales of the Shares to them. The
Purchaser and the Other Purchasers are hereinafter sometimes collectively
referred to as the "Purchasers," and this Agreement and the subscription
agreements executed by the Other Purchasers are hereinafter sometimes
collectively referred to as the "Agreements."
<PAGE> 2
SECTION 3. Delivery of the Shares at the Closing. The
completion of the purchase and sale of the Shares (the "Closing") shall occur
as soon as practicable following the effectiveness of the registration
statement to be filed by the Company pursuant to Section 7.1 hereof (the
"Registration Statement") at a place and time (the "Closing Date") to be
determined by the Company and of which the Purchasers will be notified by
facsimile transmission or otherwise. At the Closing, the Purchaser shall pay
to the Company the purchase price for the Shares being purchased hereunder by
wire transfer in immediately available funds and the Company shall deliver to
the Purchaser one or more stock certificates registered in the name of the
Purchaser, or in such nominee name(s) as designated by the Purchaser,
representing the number of Shares set forth in Section 2 above. The name(s) in
which the stock certificates are to be registered are set forth in the Stock
Certificate Questionnaire attached hereto as part of Appendix I. The Company's
obligation to complete the purchase and sale of the Shares and deliver such
stock certificate(s) to the Purchaser at the Closing shall be subject to the
following conditions, which may be waived by the Company: (a) receipt by the
Company by wire transfer of immediately available funds of the purchase price
for the Shares being purchased hereunder; (b) completion of the purchases and
sales under the Agreements with the Other Purchasers; and (c) the accuracy of
the representations and warranties made by the Purchasers and the fulfillment
of those undertakings of the Purchasers required to be fulfilled prior to the
Closing. The Purchaser's obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be subject to
the following conditions: (a) the Registration Statement is effective and was
first declared effective on or prior to March 30, 1998; and (b) the accuracy in
all material respects of the representations and warranties made by the Company
herein and the fulfillment in all material respects of those undertakings of
the Company required to be fulfilled prior to Closing. The Purchaser's
obligations hereunder are expressly not conditioned on the purchase by any or
all of the Other Purchasers of the Shares that they have agreed to purchase
from the Company.
SECTION 4. Representations, Warranties and Covenants.
The Company hereby represents and warrants to, and covenants with, the
Purchaser as follows:
4.1 Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to conduct its business as currently conducted.
4.2 Authorized Capital Stock. As of the date hereof, the
authorized capital stock of the Company consists of (a) 60,000,000 shares of
common stock, $.01 par value per share, of which on January 9, 1998 24,461,415
shares were validly issued and outstanding, fully paid and non-assessable, and
(b) 5,524,525 shares of undesignated preferred stock, $.01 par value per share,
none of which are issued and outstanding.
4.3 Due Execution, Delivery and Performance of the
Agreements. The Company's execution, delivery and performance of this
Agreement (a) have been duly authorized under Delaware law by all requisite
corporate action by the Company and (b) will not violate any law or the
Certificate of Incorporation or By-laws of the Company or any provision of any
material indenture, mortgage, agreement or other material instrument to which
the Company is a party or by which the Company or its properties or assets is
bound as of the date hereof, or result in a breach of or constitute (upon
notice or lapse of time or both) a default under any such indenture, mortgage,
2
<PAGE> 3
agreement or other material instrument or result in the creation or imposition
of any lien, security interest, pledge or other encumbrance upon any properties
or assets of the Company. The Company has no subsidiaries. Upon the execution
and delivery of this Agreement by the Company and assuming the valid execution
and delivery hereof by the Purchaser, this Agreement will constitute the valid
and binding obligation of the Company, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and except as the indemnification
agreements of the Company in Section 7.3 hereof may be legally unenforceable.
4.4 Issuance, Sale and Delivery of the Shares. When
issued and paid for, the Shares to be sold hereunder by the Company will be
validly issued and outstanding, fully paid and non-assessable. In connection
with the offering of Shares, the Company has entered into subscription
agreements with the Purchasers to sell 1,700,000 Shares (including the Shares
to be sold to the Purchaser) at a price of $39.00 per Share.
4.5 SEC Reports and Financial Statements. The Company
has furnished to the Purchaser copies of the Company's Annual Report on Form
10-K for the year ended December 31, 1996, Quarterly Reports on Form 10-Q for
the quarter ended September 30, 1997 and its proxy statement and certain other
reports under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (collectively, the "SEC Reports"), each as filed with the Securities and
Exchange Commission (the "Commission"), and the Company's 1996 Annual Report to
Stockholders (the "1996 Annual Report"), which reports and proxy statement are
included as exhibits to the Private Placement Memorandum (the "Private
Placement Memorandum"), dated January 9, 1998. Each SEC Report was in
substantial compliance with the requirements of its respective report form on
the date of filing, and the SEC reports, the 1996 Annual Report and the Private
Placement Memorandum did not, on the date of filing or the date as of which
information is set forth therein, 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, in the light of the circumstances
under which they were made, not misleading. The financial statements
(including any related schedules and/or notes) included in the SEC Reports and
the 1996 Annual Report have been prepared in accordance with generally accepted
accounting principles consistently applied (except as may be indicated in the
notes thereto) throughout the periods involved and fairly present the financial
position, results of operations and cash flows as of the dates and for the
periods indicated therein.
4.6 Intellectual Property. Except as described in the
Private Placement Memorandum or in the SEC Documents, the Company owns or
possesses sufficient rights to use all material patents, patent rights,
trademarks, copyrights, licenses, inventions, trade secrets and know-how
described or referred to in the SEC Documents, as owned or used by it or that
are necessary for the conduct of its business as now conducted or as described
in the SEC Documents. Except as described in the SEC Documents, the Company
has not entered into or become party to any material development, license or
other agreement pursuant to which it has secured the right or obligation to
use, or granted others the right or obligation to use, any trademarks,
servicemarks, trade names, copyrights, patents or any other intellectual
property right.
3
<PAGE> 4
4.7 No Material Change. As of the date hereof, there has
been no material adverse change in the financial condition or results of
operations of the Company since September 30, 1997.
4.8 Legal Opinion. Prior to closing, Dewey Ballantine
LLP, counsel to the Company, will deliver to the Purchasers a legal opinion
substantially to the effect that:
(i) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to
conduct its business as currently conducted;
(ii) As of the date of the opinion, the authorized
capital stock of the Company consists of (a) 60,000,000 shares of
common stock, $.01 par value per share, and (b) 5,524,525 shares of
undesignated preferred stock, $.01 par value per share;
(iii) The Company's execution, delivery and performance
of this Agreement (a) have been duly authorized under Delaware law by
all requisite corporate action by the Company and (b) will not violate
any applicable provision of the General Corporation Law of the State
of Delaware or the Certificate of Incorporation or By-laws of the
Company or any provision of any agreement, contract or instrument
included or incorporated by reference as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996 or
result in a breach of or constitute a default under any such
agreement, contract or instrument;
(iv) Upon the execution and delivery of this Agreement
by the Company and assuming the valid execution and delivery hereof by
the Purchaser, this Agreement will constitute the valid and binding
obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
except that the indemnification agreements of the Company in Section
7.3 hereof may be legally unenforceable;
(v) When issued and paid for, the Shares to be sold
hereunder by the Company will be validly issued, fully paid and
non-assessable;
(vi) Such counsel has been advised by the staff of the
Securities and Exchange Commission (the "Commission") that the
Registration Statement has become effective under the Securities Act
of 1933, as amended (the "Securities Act"), and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose are pending before or contemplated by the Commission; and
(vii) The Registration Statement and the prospectus
constituting a part thereof (the "Prospectus") and any supplements or
amendments thereto (except for the financial statements and the notes
thereto and the schedules and other financial and statistical data
4
<PAGE> 5
included or incorporated by reference therein, as to which such
counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Securities Act.
SECTION 5. Representation, Warranties and Covenants of
the Purchaser. (a) The Purchaser represents and warrants to, and covenants
with, the Company that: (i) the Purchaser, taking into account the personnel
and resources it can bring to bear on the purchase of the Shares contemplated
hereby, is knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in shares presenting
an investment decision like that involved in the purchase of the Shares,
including investments in securities issued by companies comparable to the
Company, and has requested, received, reviewed and considered all information
it deems relevant in making an informed decision to purchase the Shares; (ii)
the Purchaser is acquiring the number of Shares set forth in Section 2 above in
the ordinary course of its business and for its own account for investment only
and with no present intention of distributing any of such Shares or any
arrangement or understanding with any other persons regarding the distribution
of such Shares; (iii) the Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except in
compliance with the Securities Act and the rules and regulations promulgated
thereunder; (iv) the Purchaser has completed or caused to be completed the
Registration Statement Questionnaire and the Stock Certificate Questionnaire,
both attached hereto as Appendix I, for use in preparation of the Registration
Statement, and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the effective date of the Registration
Statement; (v) the Purchaser has, in connection with its decision to purchase
the number of Shares set forth in Section 2 above, relied solely upon the
Private Placement Memorandum dated January 9, 1998 and the exhibits thereto and
the representations and warranties of the Company contained herein; and (vi)
the Purchaser is a financial institution that qualifies as an "accredited
investor" within the meaning of the Rule 501 of Regulation D promulgated under
the Securities Act.
(b) The Purchaser hereby covenants with the Company not to
make any sale of the Shares without effectively causing the prospectus delivery
requirements under the Securities Act to be satisfied, and the Purchaser
acknowledges and agrees that such Shares are not transferable on the books of
the Company unless the certificate submitted to the transfer agent evidencing
the Shares is accompanied by a separate officer's certificate: (i) in the form
of Appendix II hereto; (ii) executed by an officer of, or other authorized
person designated by, the Purchaser; and (iii) to the effect that (A) the
Shares have been sold in accordance with the Registration Statement and (B) the
requirement of delivering a current prospectus has been satisfied. The
Purchaser acknowledges that there may occasionally be times when the Company
must suspend the use of the Prospectus until such time as an amendment to the
Registration Statement has been filed by the Company and declared effective by
the Commission, or until such time as the Company has filed an appropriate
report with the Commission pursuant to the Exchange Act, which such report
becomes incorporated by reference in the Registration Statement. The Purchaser
hereby covenants that it will not sell any Shares pursuant to the Prospectus
during the period commencing at the time at which the Company gives the
Purchaser written notice of the suspension of the use of the Prospectus and
ending at the time the Company gives the Purchaser notice that the Purchaser
may thereafter effect sales pursuant to the Prospectus.
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<PAGE> 6
(c) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and except as the indemnification
agreements of the Purchaser in Section 7.3 hereof may be legally unenforceable.
SECTION 6. Survival of Representations, Warranties and
Agreements. Notwithstanding any investigation made by any party to this
Agreement, all covenants, agreements, representations and warranties made by
the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Shares being purchased and the payment
therefor.
SECTION 7. Registration of the Shares; Compliance with
the Securities Act.
7.1 Registration Procedures and Expenses. The Company
shall:
(a)__ as soon as practicable after the date hereof, prepare
and file with the Commission the Registration
Statement on a Form S-3 for the sale of the Shares by
the Purchaser from time to time on the Nasdaq
National Market or the facilities of any national
securities exchange on which the Company's common
stock is then traded or in privately-negotiated
transactions; provided however that in the event that
at any time the filing of such registration statement
on Form S-3 is undertaken the Company fails to
qualify for use of Form S-3 for purposes of
registering for resale the Shares, the Company shall
cause a Registration Statement on Form S-1 to be
filed as soon as practicable;
(b)__ use its best efforts, subject to receipt of necessary
information from the Purchasers, to cause the
Registration Statement to become effective as soon as
practicable;
(c)__ prepare and file with the Commission such amendments
and supplements to the Registration Statement and the
prospectus used in connection therewith as may be
necessary to keep the Registration Statement
effective until all the Shares have been sold
pursuant thereto or until, by reason of Rule 144(k)
of the Commission under the Securities Act or any
other rule of similar effect, the Shares held by
non-affiliates of the Company are no longer required
to be registered for the sale thereof by the
Purchasers;
(d)__ furnish to the Purchaser with respect to the Shares
registered under the Registration Statement (and to
each Underwriter, if any, of such Shares identified
in writing as such by the Purchaser to the Company)
such number
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<PAGE> 7
of copies of prospectuses and preliminary
prospectuses in conformity with the requirements of
the Securities Act and such other documents as the
Purchaser may reasonably request, in order to
facilitate the public sale or other disposition of
all or any of the Shares by the Purchaser;
(e)__ file documents required of the Company for normal
blue sky clearance in states specified in writing by
the Purchaser; provided, however, that the Company
shall not be required to qualify to do business or
consent to service of process in any jurisdiction in
which it is not now so qualified or has not so
consented; and
(f)__ bear all expenses in connection with the procedures
in paragraphs (a) through (e) of this Section 7.1 and
the registration of the Shares pursuant to the
Registration Statement, other than fees and expenses,
if any, of counsel or other advisors to the Purchaser
or the Other Purchasers.
The Company understands that the Purchaser disclaims being an
"underwriter" as defined in Section 2(11) of the Securities Act , but the fact
that the Purchaser may be deemed an underwriter shall not relieve the Company
or the Purchaser of any obligations it has hereunder. A questionnaire relating
to the Registration Statement to be completed by the Purchaser is attached
hereto as Appendix I.
7.2 Transfer of Shares After Registration. The Purchaser
agrees that it will not effect any disposition of the Shares or its right to
purchase the Shares that would constitute a sale within the meaning of the
Securities Act except (a) pursuant to the Registration Statement referred to in
Section 7.1 or (b) pursuant to an exemption from the registration requirements
of applicable securities laws, provided that in the case of a transaction
pursuant to this clause (b) the Purchaser shall have first delivered to the
Company the written opinion of counsel reasonably acceptable to the Company and
its counsel that such transaction may be effected under applicable securities
laws other than pursuant to the Registration Statement. The Purchaser will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding the Purchaser or its resale plans described
under the caption "Plan of Distribution."
7.3 Indemnification. For the purposes of this Section
7.3:
(a)__ the term "Selling Shareholder" shall mean the
Purchaser and any officer, director, employee, agent,
affiliate or person deemed to be in control of such
Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act;
(b)__ the term "Registration Statement" shall mean the
Registration Statement referred to in Section 3
hereof and any final prospectus, exhibit, supplement
or amendment included in or relating to such
Registration Statement; and
(c)__ the term "untrue statement" shall mean any untrue
statement or alleged
7
<PAGE> 8
untrue statement of, or any omission or alleged
omission to state, in the Registration Statement, a
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to
which such Selling Shareholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon (i) any
untrue statement, or arise out of any failure by the Company to fulfill any
undertaking included in, the Registration Statement, the Private Placement
Memorandum or this Agreement or (ii) breach by the Company of any of its
representations or warranties made or given in this Agreement, and the Company
will reimburse such Selling Shareholder for any reasonable legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that the Company shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling
Shareholder specifically for use in preparation of the Registration Statement,
or the failure of such Selling Shareholder to comply with the covenants and
agreements contained in Sections 5(b) or 7.2 hereof respecting sale of the
Shares or any statement or omission in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to the Purchaser prior to the
pertinent sale or sales by the Purchaser.
The Purchaser agrees to indemnify and hold harmless the
Company (and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act), each
officer of the Company who signs the Registration Statement and each director
of the Company from and against any losses, claims, damages or liabilities to
which the Company (or any such officer, director or controlling person) may
become subject (under the Securities Act or otherwise), insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any failure to comply with the covenants and
agreements contained in Section 5(b) or 7.2 hereof respecting sale of the
Shares, or any untrue statement of a material fact contained in the
Registration Statement if such untrue statement was made in reliance upon and
in conformity with written information furnished by or on behalf of the
Purchaser specifically for use in preparation of the Registration Statement,
and the Purchaser will reimburse the Company (or such officer, director or
controlling person, as the case may be) for any legal or other expenses
reasonably incurred in investigating, defending, or preparing to defend any
such action, proceeding or claim.
Promptly after receipt by any indemnified person of a notice
of a claim or the commencement of any action in respect of which indemnity is
to be sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, and, subject to the provisions
hereinafter stated, such indemnifying person shall be entitled to participate
therein, and, to the extent it shall wish, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified person. After notice from
the indemnifying person to such indemnified person of its election to
8
<PAGE> 9
assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists a conflict of interest that would make it inappropriate,
in the opinion of counsel to the indemnified person, for the same counsel to
represent both the indemnified person and such indemnifying person or any
officer, director, employee, agent, affiliate or person deemed to be in control
of such indemnifying person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, the indemnified person shall
be entitled to retain its own counsel at the expense of such indemnifying
person. It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits, or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all parties entitled to indemnification under
the Agreements not having actual or potential differing interests with the
Company or among themselves.
7.4 Termination of Conditions and Obligations. The
conditions precedent imposed by Section 5 or this Section 7 upon the
transferability of the Shares shall cease and terminate as to any particular
number of the Shares when such Shares shall have been effectively registered
under the Securities Act and sold or otherwise disposed of in accordance with
the intended method of disposition set forth in the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory to
the Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act.
7.5 Information Available. So long as the Registration
Statement is effective covering the resale of Shares owned by the Purchaser,
the Company will furnish to the Purchaser all reports required by it to be
filed under the Exchange Act and upon the reasonable request of the Purchaser,
an adequate number of copies of the prospectuses to supply to any other party
requiring such prospectuses.
SECTION 8. No Brokers. Each of the parties hereto
hereby represents that, on the basis of any actions and agreements by it, there
are no other brokers or finders entitled to compensation from the Company or by
the Purchaser in connection with the sale of the Shares to the Purchaser.
SECTION 9. Notices. All notices, requests, consents and
other communications hereunder shall be in writing, shall be mailed by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage or freight prepaid, and shall be deemed given to the
following addresses four business days after mailing if by registered or
certified airmail or one business day after deposit with an overnight express
courier:
(a)__ if to the Company, to:
MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, MD 20878
Attention: Chief Executive Officer
9
<PAGE> 10
with a copy so mailed to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: Frederick W. Kanner
or to such other person at such other place as the Company
shall designate to the Purchaser in writing; and
(b)__ if to the Purchaser, at its address as set forth at
the end of this Agreement, or at such other address
or addresses as may have been furnished to the
Company in writing.
SECTION 10. Changes. This Agreement may not be modified
or amended except pursuant to an instrument in writing signed by the Company
and the Purchaser.
SECTION 11. Headings. The headings of the various
sections of this Agreement have been inserted for convenience of reference only
and shall not be deemed to be part of this Agreement.
SECTION 12. Severability. In case any provision
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
SECTION 13. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
and the federal law of the United States of America.
SECTION 14. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall constitute an original, but
all of which, when taken together, shall constitute but one instrument, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties.
SECTION 15. Expenses. Except as otherwise specifically
provided herein, each party shall bear its own expenses in connection with this
Agreement.
SECTION 16. Publicity. The Purchaser shall not issue any
press releases or otherwise make any public statement with respect to the
transactions contemplated by this Agreement without the prior written consent
of the Company, except as may be required by applicable law or regulation.
SECTION 17. Confidentiality. The Purchaser acknowledges
and agrees that any information or data it has acquired from the Company, not
otherwise properly in the public domain, was received in confidence. The
Purchaser agrees not to divulge, communicate or disclose, except as may be
required by law or for the performance of this Agreement, or use to the
detriment of the
10
<PAGE> 11
Company or for the benefit of any other person or persons, or misuse in any
way, any confidential information of the Company.
11
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
MEDIMMUNE, INC.
By: /s/ DAVID M. MOTT
David M. Mott
Name and address of Purchaser:
Biotech Target S.A.
Obarrie Street
Swiss Bank Tower
Panama, Panama 5
Signature of Authorized Representative:
By: /s/ H-J GRAF
Name: H-J Graf
Title: Signatory Authority
By: /s/ A. HOVE
Name: A. Hove
Title: Signatory Authority
12
<PAGE> 13
Appendix I
Page 1 of 2
MEDIMMUNE, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Subscription Agreement, please provide us
with the following information:
<TABLE>
<S> <C>
1. The exact name that your Shares are to be registered in (this
is the name that will appear on your stock certificate(s)).
You may use a nominee name if appropriate:
----------------------------------
2. The relationship between the Purchaser of the Shares and the
Registered Holder listed in response to item 1 above:
----------------------------------
3. The mailing address of the Registered Holder listed in
response to item 1 above:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
4. Tax Identification Number of the Registered
Holder listed in response to item 1 above:
----------------------------------
Print or Type:
Name of Purchaser:
----------------------------------
Name of individual representing Purchaser:
----------------------------------
Title of individual representing Purchaser:
----------------------------------
Signature by:
Individual representing Purchaser:
----------------------------------
</TABLE>
<PAGE> 14
Appendix I
Page 2 of 2
MEDIMMUNE, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
- --------------------------------------------------------------------------------
2. Please provide us with the following information as of January 12,
1998:
<TABLE>
<CAPTION>
Number of Shares which are being Number of Shares, if any, which will be owned after
included in the Registration Statement completion of sale of Shares included in the
- -------------------------------------- Registration Statement
----------------------
<S> <C>
------------------------------------ -----------------------------------------
</TABLE>
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or
its affiliates?
Yes No
----- ------
If yes, please indicate the nature of any such relationships below:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4. Are you or is your organization affiliated with any member of the
National Association of Securities Dealers, Inc.?
Yes No
----- ------
If yes, please indicate the nature of any such affiliation below:
- --------------------------------------------------------------------------------
Print or Type:
Name of Purchaser:
-------------------------
Name of individual representing Purchaser:
-------------------------
Title of individual representing Purchaser:
-------------------------
Signature by:
Individual representing
Purchaser:
-------------------------
<PAGE> 15
2
136474.1
Appendix II
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, MD 20878
The undersigned, [an officer of, or other person duly authorized
by]____________________________________ [fill in official name of institution]
hereby certifies that said institution is the Purchaser of the shares evidenced
by the attached certificate, and as such, sold such shares on
________________________ in accordance with registration statement number
___________________________________ [fill in Registration Number] and the
requirement of delivering a current prospectus has been complied with in
connection with such sale or in accordance with an exemption from the
registration requirements of applicable federal and state securities laws.
Print or Type:
Name of Purchaser:
----------------------------
Name of individual representing Purchaser:
----------------------------
Title of individual representing Purchaser:
----------------------------
Signature by:
Individual representing Purchaser:
----------------------------
