As filed with the Securities and Exchange Commission on May 24, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
MEDIMMUNE, INC.
(Exact name of registrant as specified in its charter)
35 West Watkins Mill Road
DELAWARE Gaithersburg, Maryland 55-1555759
(State or other 20878 (I.R.S. Employer
jurisdiction of (Address of Principal Identification
incorporation or Executive Offices) (Zip No.)
organization) Code)
1999 Stock Option Plan
(Full Title of the Plan)
Wayne T. Hockmeyer, Ph.D.
Chairman and Chief Executive Officer
MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(301) 417-0770
CALCULATION OF REGISTRATION FEE
Title of Each Class of Amount To Proposed Proposed Amount
Securities To Be Be Maximum Maximum of
Registered Registered Offering Price Aggregate Registra
Per Share Offering tion Fee
Price
Common Stock, $.01 par 2,750,000 $57.1875 (1) $157,265,625 $43,720
value per share (1)
(1) Pursuant to Rule 457(h), these prices are estimated solely for the purpose
of calculating the registration fee and are based upon the average of the high
and low sales prices of the Registrant's common stock on the Nasdaq National
Market on May 21, 1999.
<PAGE>
STATEMENT
This Form S-8 Registration Statement is being filed with the Securities and
Exchange Commission (the "Commission") by MedImmune, Inc., a Delaware
corporation (the "Company"), in order to register 2,750,000 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), issuable
upon exercise of options granted or to be granted under the Company's 1999 Stock
Option Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are hereby incorporated
by reference:
a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998;
b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
c) The Registrant's Current Reports on Form 8-K filed on February 1,
1999, February 26, 1999, May 21, 1999 (three reports) and May 25,
(two reports); and
d) The description of the Company's Common Stock set forth under the
caption "Description of Capital Stock" in the Registrant's
registration statement on Form 8-A dated April 4, 1991 pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") including all amendments or reports filed with the
Commission for the purpose of updating such description.
All other documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and be a part hereof from the date of filing of such documents.
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 other subsequently filed document which also is 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 a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware (the "DGCL") empowers a corporation to indemnify any person who was
or is a party or who is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the
person's conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a 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 or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person acted in any of the capacities set forth above, against expenses
(including attorney's fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL further provides that to the extent a present or
former director or officer of a corporation has been successful on the
merits or otherwise in the defense of any action, suit or proceeding referred
to in subsections (a) and (b) of Section 145, or in defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
the indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, 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; and empowers the
corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify such
person against such liabilities under Section 145.
The Company provides liability insurance for its directors and officers
which provides for coverage against loss from claims made against directors and
officers in their capacity as such, including liabilities under Securities Act
of 1933, as amended.
<PAGE>
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation 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.
Article EIGHTH of the Company's Certificate of Incorporation limits the
liability of directors to the fullest extent permitted by Section 102(b)(7).
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as Exhibits hereto:
Exhibit Sequentially Number
Number Description Page No.
4.1 1999 Stock Option Plan Page 10
5.1 Opinion and Consent of Dewey Ballantine LLP with respect to the
legality of the
securities being registered Page 22
23.1 Consent of Dewey Ballantine LLP
(contained in their opinion filed herewith
as Exhibit 5.1) --
23.2 Consent PricewaterhouseCoopers L.L.P. Page 23
24.1 Power of Attorney of directors and certain
officers of the Company (included in Signature
Page) --
Item 9. Undertakings.
a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
egistration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. 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 Gaithersburg, State of Maryland, on the 24th day of
May, 1999.
MEDIMMUNE, INC.
By: /s/ Wayne T. Hockmeyer, Ph.D.
Wayne T. Hockmeyer, Ph.D.
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the persons whose names
appear below constitute and appoint Wayne T. Hockmeyer and David M. Mott, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to execute any and all amendments to this Registration
Statement, and to file the same, together with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
and such other agencies, offices and persons as may be required by applicable
law, granting unto said attorney-in-fact and agent, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each said
attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
/s/Wayne T. Hockmeyer, Ph.D Chairman, Chief Executive Officer
Wayne T. Hockmeyer, Ph.D. and Director Principal Executive May 24, 1999
Officer)
/s/ David M. Mott
David M. Mott Vice Chairman and Chief Financial
Officer and Director
(Principal Financial and May 24, 1999
Accounting Officer)
/s/Melvin D. Booth President and Chief Operating May 24, 1999
Melvin D. Booth Officer and Director
/s/Franklin H. Top,Jr., M.D Executive Vice President, Medical
Franklin H. Top, Jr., M.D. Director and Director May 24, 1999
/s/M. James Barrett, Ph.D. Director
M. James Barrett, Ph.D. May 24, 1999
/s/James H. Cavanaugh, Ph.D. Director
James H. Cavanaugh, Ph.D.
/s/Lawrence C. Hoff Director May 24, 1999
Lawrence C. Hoff
/s/Gordon S. Macklin Director May 24, 1999
Gordon S. Macklin
/s/Barbara Hackman Franklin Director May 24, 1999
Barbara Hackman Franklin
<PAGE>
MEDIMMUNE, INC.
-----------------
EXHIBITS
for
REGISTRATION STATEMENT
ON
FORM S-8
-----------------
Exhibit 4.1
MEDIMMUNE, INC.
1999 Stock Option Plan
Table of Contents Page
Article I. PURPOSE 12
Article II. DEFINITIONS 12
Article III.ELIGIBILITY 13
Article IV. ADMINISTRATION 14
Section 4.1 Committee Members 14
Section 4.2 Committee Authority 14
Section 4.3 Delegation of Authority 14
Section 4.4 Grants to Non-Employee Members of the Board 14
Article V. SHARES OF STOCK SUBJECT TO PLAN 14
Section 5.1 Number of Shares 14
Section 5.2 Adjustments 15
Article VI. OPTIONS 15
Section 6.1 Grant of Option 15
Section 6.2 Maximum Limit 16
Section 6.3 Option Price 16
Section 6.4 Vesting; Term of Option 16
Section 6.5 Option Exercise; Withholding 16
Section 6.6 Limited Transferability of Option 16
Section 6.7 Cancellation, Substitution and Amendment of
Options 17
Article VII.ADDITIONAL RULES FOR ISOs 17
Section 7.1 Annual Limits 17
Section 7.2 Termination of Employment 17
Section 7.3 Other Terms and Conditions;
Nontransferability 17
Section 7.4 Disqualifying Dispositions 18
Article VIII. TERMINATION OF SERVICE 18
Section 8.1 Death 18
Section 8.2 Disability 18
Section 8.3 Termination for Cause 19
Section 8.4 Other Termination of Service 19
Article IX. STOCK CERTIFICATES 19
Section 9.1 Issuance of Certificates 19
Section 9.2 Conditions 19
Section 9.3 Legends 20
Article X. EFFECTIVE DATE, TERMINATION AND AMENDMENT 20
Section 10.1 Effective Date; Stockholder Approval 20
Section 10.2 Termination 20
Section 10.3 Amendment 20
Article XI. MISCELLANEOUS 20
Section 11.1 Employment or Other Service 20
Section 11.2 Rights as Stockholder 20
Section 11.3 Other Compensation and Benefit Plans 21
Section 11.4 Plan Binding on Successors 21
Section 11.6 Severability 21
Section 11.7 Governing Law 21
<PAGE>
MEDIMMUNE, INC.
1999 Stock Option Plan
ARTICLE I
PURPOSE
This MedImmune, Inc. 1999 Stock Option Plan is intended to advance the
interests of the Company and its stockholders by attracting, retaining and
motivating key personnel of the Company upon whose judgment, initiative and
effort the Company is largely dependent for the successful conduct of its
business, and to encourage and enable such persons to acquire a proprietary
interest in the Company by ownership of its stock. Options granted under the
Plan may either be "incentive stock options" intended to qualify as such under
the Internal Revenue Code, or "nonqualified stock options," which are not
intended to so qualify.
ARTICLE II
DEFINITIONS
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" means the Company's Common Stock, par value $.01 per
share.
(d) "Committee" means the Compensation and Stock Committee of the Board or
any other committee of the Board appointed by the Board to administer
the Plan from time to time.
(e) "Company" means MedImmune, Inc., a Delaware corporation.
(f) "Date of Grant" means the date on which an Option becomes effective in
accordance with Section 6.1 hereof.
(g) "Eligible Person" means any person who is an employee, officer, member
of the Board, consultant or advisor of the Company or any Subsidiary,
or any person who is determined by the Committee to be a prospective
employee, officer, member of the Board, consultant or advisor of the
Company or any Subsidiary.
(h) "Employee" means any person who is an employee of the Company or any
Subsidiary; provided, however, that with respect to Incentive Stock
Options, "Employee" means any person who is considered an employee of
the Company or any Subsidiary for purposes of Treasury Regulation
Section 1.421-7(h).
(i) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(j) "Fair Market Value" of a share of Common Stock as of a
given date means the closing sales price of the Common
Stock on the Nasdaq Stock Market, Inc. on the trading
day immediately preceding the date as of which Fair
Market Value is to be determined or, in the absence of
any reported sales of Common Stock on such date, on the
first preceding date on which any such sale shall have
been reported. If Common Stock is not listed on the
Nasdaq Stock Market, Inc. on the date as of which Fair
Market Value is to be determined, the Committee shall
determine in good faith the Fair Market Value in
whatever manner it considers appropriate.
(k) "Incentive Stock Option" means a stock option granted under the Plan
that is intended to meet the requirements of section 422 of the Code
and the regulations promulgated thereunder.
(l) "Nonqualified Stock Option" means a stock option granted under the
Plan that is not an Incentive Stock Option.
(m) "Option" means an Incentive Stock Option or a Nonqualified Stock
Option granted under the Plan.
(n) "Optionee" means an Eligible Person to whom an Option has been
granted, which Option has not expired, under the Plan.
(o) "Option Price" means the price at which each share of Common Stock
subject to an Option may be purchased, determined in accordance with
Section 6.3 hereof.
(p) "Plan" means this MedImmune, Inc. 1999 Stock Option
Plan.
(q) "Stock Option Agreement" means an agreement between the Company and an
Optionee under which the Optionee may purchase Common Stock under the
Plan.
(r) "Subsidiary" means a subsidiary corporation of the Company, within the
meaning of section 424(f) of the Code.
ARTICLE III
ELIGIBILITY
All Eligible Persons are eligible to receive a grant of an Option under the
Plan. The Committee shall, in its sole discretion, determine and designate from
time to time those Eligible Persons who are to be granted an Option.
ARTICLE IV
ADMINISTRATION
Section 4.1 Committee Members. The Plan shall be administered by a
Committee comprised of no fewer than two persons selected by the Board. Solely
to the extent deemed necessary or advisable by the Board, each Committee member
shall meet the definition of a "nonemployee director" for purposes of such Rule
16b-3 under the Exchange Act and of an "outside director" under section 162(m)
of the Code. The Board shall also have the authority to exercise the powers and
duties of the Committee under the Plan.
Section 4.2 Committee Authority. Subject to the express provisions of
the Plan, the Committee shall have the authority, in its discretion, to
determine the Eligible Persons to whom an Option shall be granted, the time or
times at which an Option shall be granted, the number of shares of Common Stock
subject to each Option, the Option Price of the shares subject to each Option
and the time or times when each Option shall become exercisable and the duration
of the exercise period. Subject to the express provisions of the Plan, the
Committee shall also have discretionary authority to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to it, to determine
the provisions of each Stock Option Agreement, and to make all the
determinations necessary or advisable in the administration of the Plan. All
such actions and determinations by the Committee shall be conclusively binding
for all purposes and upon all persons. No Committee member shall be liable for
any action or determination made in good faith with respect to the Plan, any
Option or any Stock Option Agreement entered into hereunder.
Section 4.3 Delegation of Authority. The Committee shall have the
right, from time to time, to delegate to one or more officers of the Company the
authority of the Committee to grant and determine the terms and conditions of
Options awarded under the Plan, subject to such limitations as the Committee
shall determine; provided, however, that no such authority may be delegated with
respect to Options awarded to any Optionee who the Committee determines may be
subject to Rule 16b-3 under the Exchange Act or section 162(m) of the Code.
Section 4.4 Grants to Non-Employee Members of the Board. Awards of
Options to non-employee members of the Board under the Plan shall be approved by
the Board. With respect to awards to such directors, all rights, powers and
authorities vested in the Committee under the Plan shall instead be exercised by
the Board, and all provisions of the Plan relating to the Committee shall be
interpreted in a manner consistent with the foregoing by treating any such
reference as a reference to the Board for such purpose.
<PAGE>
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
Section 5.1 Number of Shares. Subject to adjustment pursuant to the
provisions of Section 5.2 hereof, the maximum aggregate number of shares of
Common Stock which may be issued and sold hereunder shall be 2,750,000 shares.
Shares of Common Stock issued and sold under the Plan may be either authorized
but unissued shares or shares held in the Company's treasury. The number of
shares of Common Stock reserved for issuance under the Plan shall at no time be
less than the maximum number of shares which may be purchased at any time
pursuant to outstanding options. Shares of Common Stock covered by an Option
that shall have been exercised shall not again be available for an Option grant.
If an Option shall terminate or expire for any reason without being wholly
exercised, the number of shares to which such Option termination or expiration
relates shall again be available for grant hereunder.
Section 5.2 Adjustments. In the event that the number of shares of
Common Stock of the Company shall be increased or decreased through
reclassification, combination of shares, stock split or the payment of a stock
dividend, or otherwise, then (i) the number of shares of Common Stock currently
subject to Options and the Option Prices of such Options, (ii) the maximum
aggregate number and kind of shares of Common Stock that may be issued and sold
under the Plan, and (iii) the maximum number of shares that may be subject to
Options granted to any Optionee during any one calendar year, shall be
proportionately adjusted to reflect such increase or decrease.
In the event there shall be any other change in the number or kind of
the outstanding shares of Common Stock of the Company, or any stock or other
securities into which such Common Stock shall have been changed, or for which it
shall have been exchanged, whether by reason of merger, consolidation or
otherwise, then if the Committee shall, in its sole discretion, determine that
such change equitably requires an adjustment to (i) the number and kind of
shares of Common Stock currently subject to Options and the Option Prices or
terms of such Options, (ii) the maximum aggregate number and kind of shares of
Common Stock that may be issued and sold under the Plan, and (iii) the maximum
number of shares of Common Stock that may be subject to Options granted to any
Optionee during any one calendar year, such adjustments shall be made in the
manner that the Committee shall deem to be equitable and appropriate. In no
event may any such change be made to an Incentive Stock Option which would
constitute a "modification" within the meaning of section 424(h)(3) of the Code
without the consent of any affected Optionee. In the event of any merger,
consolidation, reorganization or similar corporate event in which shares of the
Common Stock are to be exchanged for payment of cash (the "Cash Consideration"),
the Committee may, in its discretion, (i) make equitable adjustments as provided
above, or (ii) cancel any outstanding Option in exchange for payment in cash, if
any, equal to the excess of the Cash Consideration for the shares underlying
such Option over the Option Price for such shares.
<PAGE>
ARTICLE VI
OPTIONS
Section 6.1 Grant of Option. An Option may be granted to any Eligible
Person selected by the Committee. The grant of an Option shall first be
effective upon the date it is approved by the Committee, except to the extent
the Committee shall specify a later date upon which the grant of an Option shall
first be effective. Each Option shall be designated, at the discretion of the
Committee, as an Incentive Stock Option or a Nonqualified Stock Option;
provided, however, that Incentive Stock Options may only be granted to Eligible
Persons who are Employees of the Company. The Company and the Optionee shall
execute a Stock Option Agreement which shall set forth such terms and conditions
of the Option as may be determined by the Committee to be consistent with the
Plan, and which may include additional provisions and restrictions that are not
inconsistent with the Plan.
Section 6.2 Maximum Limit. Notwithstanding anything elsewhere in the
Plan to the contrary, the maximum number of shares of Common Stock that may be
subject to Options granted to any Optionee during any one calendar year shall be
1,000,000 shares, subject to adjustment as provided in Section 5.2 hereof.
Section 6.3 Option Price. The Option Price shall be determined by the
Committee; provided, however, that the Option Price shall not be less than 100%
of the Fair Market Value of a share of Common Stock on the Date of Grant.
Section 6.4 Vesting; Term of Option. An Option shall vest and become
exercisable in the manner and subject to such conditions provided by the
Committee and set forth in the Stock Option Agreement. The Committee, in its
sole discretion, may accelerate the exercisability of any Option at any time.
The period during which a vested Option may be exercised shall be determined by
the Committee, subject to a maximum term of ten years from the Date of Grant and
such other limitations as may apply upon the termination of an Optionee's
employment or other service or as otherwise specified by the Committee in the
Stock Option Agreement.
Section 6.5 Option Exercise; Withholding. Subject to such terms and
conditions as shall be specified in a Stock Option Agreement, an Option may be
exercised in whole or in part at any time, with respect to whole shares only,
within the period permitted for the exercise thereof, and shall be exercised by
written notice of intent to exercise the Option with respect to a specified
number of shares delivered to the Company at its principal office, and payment
in full to the Company at said office of the amount of the Option Price for the
number of shares of the Common Stock with respect to which the Option is then
being exercised. Payment of the Option Price shall be made (i) in cash or by
cash equivalent, (ii) at the discretion of the Committee, in Common Stock that
has been held by the Optionee for at least six months (or such other period as
the Committee may deem appropriate for purposes of applicable accounting rules),
valued at the Fair Market Value of such shares determined on the date of
exercise, (iii) at the discretion of the Committee, by a delivery of a notice
that the Optionee has placed a market sell order (or similar instruction) with a
broker with respect to shares of Common Stock then issuable upon exercise of the
Option, and that the broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the Option Price
(conditioned upon the payment of such net proceeds), (iv) at the discretion of
the Committee, by a combination of the methods described above, or (v) by such
other method as may be approved by the Committee and set forth in the Stock
Option Agreement. In addition to and at the time of payment of the Option Price,
the Optionee shall pay to the Company the full amount of all federal and state
withholding and other employment taxes required to be withheld in connection
with such exercise, in any manner consistent with the foregoing that is approved
by the Committee and set forth in the Stock Option Agreement.
<PAGE>
Section 6.6 Limited Transferability of Option. All Options shall be
nontransferable except (i) upon the Optionee's death, by the Optionee's will or
the laws of descent and distribution or (ii) in the case Nonqualified Stock
Options only, on a case-by-case basis as may be approved by the Committee in its
discretion, in accordance with the terms provided below. A Stock Option
Agreement for a Nonqualified Stock Option may provide that the Optionee shall be
permitted to, during his or her lifetime and subject to the prior approval of
the Committee at the time of proposed transfer, transfer all or part of the
Option to the Optionee's family member (as defined in the Stock Option Agreement
in a manner consistent with the requirements for the Form S-8 registration
statement, if applicable). Any such transfer shall be subject to the condition
that it is made by the Optionee for estate planning, tax planning or donative
purposes, and no consideration (other than nominal consideration) is received by
the Optionee therefor. The transfer of a Nonqualified Stock Option may be
subject to such other terms and conditions as the Committee may in its
discretion impose from time to time, including a condition that the portion of
the Option to be transferred be vested and exercisable by the Optionee at the
time of the transfer. Subsequent transfers of an Option shall be prohibited
other than by will or the laws of descent and distribution upon the death of the
transferee.
Section 6.7 Cancellation, Substitution and Amendment of Options. The
Committee shall have the authority to effect, at any time and from time to time,
with the consent of the affected Optionees, (i) the cancellation of any or all
outstanding Options and the grant in substitution therefor of new Options
covering the same or different numbers of shares of Common Stock and having an
Option Price which may be the same as or different than the Option Price of the
cancelled Options or (ii) the amendment of the terms of any and all outstanding
Options; provided, however, that the Committee shall not, without the approval
of the Company's stockholders, cause the cancellation, substitution or amendment
of Options that would have the effect of reducing the exercise price of Options
previously granted under the Plan, other than as permitted by Section 5.2
hereof.
ARTICLE VII
ADDITIONAL RULES FOR ISO
Section 7.1 Annual Limits. No Incentive Stock Option shall be granted
to an Optionee as a result of which the aggregate Fair Market Value (determined
as of the date of grant) of the stock with respect to which "incentive stock
options" are exercisable for the first time in any calendar year under the Plan
and any other stock option plans of the Company, any Subsidiary, or any parent
corporation, would exceed the maximum amount permitted under section 422(d) of
the Code. This limitation shall be applied by taking options into account in the
order in which granted.
Section 7.2 Termination of Employment. An Incentive Stock Option may
provide that such Option may be exercised not later than three months following
termination of employment of the Optionee with the Company and all Subsidiaries,
subject to special rules relating to death and disability, as and to the extent
determined by the Committee to be consistent with the requirements of section
422 of the Code and Treasury Regulations thereunder.
Section 7.3 Other Terms and Conditions; Nontransferability. Any
Incentive Stock Option granted hereunder shall contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as are deemed
necessary or desirable by the Committee, which terms, together with the terms of
this Plan, shall be intended and interpreted to cause such Incentive Stock
Option to qualify as an "incentive stock option" under section 422 of the Code.
Such terms shall include, if applicable, limitations on Incentive Stock Options
granted to ten-percent owners of the Company as determined under sections
422(b)(6) and 424(d) of the Code. A Stock Option Agreement for an Incentive
Stock Option may provide that such Option shall be treated as a Nonqualified
Stock Option to the extent that certain requirements applicable to "incentive
stock options" under the Code shall not be satisfied. An Incentive Stock Option
shall by its terms be nontransferable otherwise than by will or by the laws of
descent and distribution, and shall be exercisable during the lifetime of an
Optionee only by such Optionee.
Section 7.4 Disqualifying Dispositions. If shares of Common Stock
acquired by exercise of an Incentive Stock Option are disposed of within two
years following the Date of Grant or one year following the transfer of such
shares to the Optionee upon exercise, the Optionee shall, promptly following
such disposition, notify the Company in writing of the date and terms of such
disposition and provide such other information regarding the disposition as the
Committee may reasonably require.
<PAGE>
ARTICLE VIII
TERMINATION OF SERVICE
Section 8.1 Death. Unless otherwise provided by the Committee and set
forth in the Stock Option Agreement, if an Optionee shall die at any time after
the Date of Grant and while he is an Eligible Person, the executor or
administrator of the estate of the decedent, or the person or persons to whom an
Option shall have been validly transferred in accordance with Section 6.6 hereof
pursuant to will or the laws of descent and distribution, shall have the right,
during the period ending one year after the date of the Optionee's death
(subject to the term of the Option), to exercise the Optionee's Option to the
extent that it was exercisable at the date of the Optionee's death and shall not
have been previously exercised. The Committee may determine at or after grant to
make any portion of the Optionee's Option that is not exercisable at the date of
death immediately vested and exercisable.
Section 8.2 Disability. Unless otherwise provided by the Committee and
set forth in the Stock Option Agreement, if an Optionee's employment or other
service with the Company or any Subsidiary shall be terminated as a result of
permanent and total disability (within the meaning of section 22(e)(3) of the
Code) at any time after the Date of Grant and while the Optionee is an Eligible
Person, the Optionee (or in the case of an Optionee who is legally
incapacitated, his guardian or legal representative) shall have the right,
during a period ending one year after the date of his disability (subject to the
term of the Option), to exercise an Option to the extent that it was exercisable
at the date of such termination of employment or other service and shall not
have been exercised. The Committee may determine at or after grant to make any
portion of the Optionee's Option that is not exercisable at the date of
termination of employment or other service due to disability immediately vested
and exercisable.
Section 8.3 Termination for Cause. Unless otherwise provided by the
Committee and set forth in the Stock Option Agreement, if an Optionee's
employment or other service with the Company or any Subsidiary shall be
terminated for cause, the Optionee's right to exercise any unexercised portion
of an Option shall immediately terminate and all rights thereunder shall cease.
For purposes of this Section 8.3, termination for "cause" shall include, but not
be limited to, embezzlement or misappropriation of corporate funds, any acts of
dishonesty resulting in conviction for a felony, misconduct resulting in
material injury to the Company or any Subsidiary, significant activities harmful
to the reputation of the Company or any Subsidiary, a significant violation of
Company or Subsidiary policy, willful refusal to perform, or substantial
disregard of, the duties properly assigned to the Optionee, or a significant
violation of any contractual, statutory or common law duty of loyalty to the
Company or any Subsidiary. Notwithstanding the foregoing, in the event an
Optionee is party to an employment (or similar) agreement with the Company or
any Subsidiary that defines the term "cause," such definition shall apply for
purpose of the Plan. The Committee shall have the power to determine whether the
Optionee has been terminated for cause and the date upon which such termination
for cause occurs. Any such determination shall be final, conclusive and binding
upon the Optionee.
Section 8.4 Other Termination of Service. Unless otherwise provided by
the Committee and set forth in the Stock Option Agreement, if an Optionee's
employment or other service with the Company or any Subsidiary shall be
terminated for any reason other than death, permanent and total disability or
termination for cause, the Optionee shall have the right, during the period
ending three months after such termination (subject to the term of the Option),
to exercise an Option to the extent that it was exercisable at the date of such
termination and shall not have been exercised. For purposes of this Section 8.4,
an Optionee shall not be considered to have terminated employment or other
service with the Company or any Subsidiary until the expiration of the period of
any military, sick leave or other bona fide leave of absence, up to a maximum
period of 90 days (or such greater period during which the Optionee is
guaranteed reemployment either by statute or contract).
<PAGE>
ARTICLE IX
STOCK CERTIFICATES
Section 9.1 Issuance of Certificates. Subject to Section 9.2 hereof,
the Company shall issue a stock certificate in the name of the Optionee (or
other person exercising the Option in accordance with the provisions of the
Plan) for the shares of Common Stock purchased by exercise of an Option as soon
as practicable after due exercise and payment of the aggregate Option Price for
such shares. A separate stock certificate or separate stock certificates shall
be issued for any shares of Common Stock purchased pursuant to the exercise of
an Option that is an Incentive Stock Option, which certificate or certificates
shall not include any shares of Common Stock that were purchased pursuant to the
exercise of an Option that is a Nonqualified Stock Option.
Section 9.2 Conditions. The Company shall not be required to issue or
deliver any certificate for shares of Common Stock purchased upon the exercise
of any Option granted hereunder or any portion thereof prior to fulfillment of
all of the following conditions:
(i) the completion of any registration or other qualification of such
shares, under any federal or state law or under the rulings or regulations of
the Securities and Exchange Commission or any other governmental regulatory
body, that the Committee shall in its sole discretion deem necessary or
advisable;
(ii) the obtaining of any approval or other clearance from any federal or
state governmental agency which the Committee shall in its sole discretion
determine to be necessary or advisable;
(iii) the lapse of such reasonable period of time following the exercise of
the Option as the Committee from time to time may establish for reasons of
administrative convenience;
(iv) satisfaction by the Optionee of all applicable withholding taxes or
other withholding liabilities; and if required by the Committee, in its sole
discretion, the receipt by the Company from an Optionee of (i) a representation
in writing that the shares of Common Stock received upon exercise of an Option
are being acquired for investment and not with a view to distribution and (ii)
such other representations and warranties as are deemed necessary by counsel to
the Company.
Section 9.3 Legends. The Company reserves the right to legend any
certificate for shares of Common Stock, conditioning sales of such shares upon
compliance with applicable federal and state securities laws and regulations.
<PAGE>
ARTICLE X
EFFECTIVE DATE, TERMINATION AND AMENDMENT
Section 10.1 Effective Date; Stockholder Approval. The Plan shall
become effective on the date of its approval by the stockholders of the Company,
which approval shall be obtained within 12 months after the adoption of the Plan
by the Board.
Section 10.2 Termination. The Plan shall terminate on the date
immediately preceding the tenth anniversary of the date the Plan is adopted by
the Board. The Board may, in its sole discretion and at any earlier date,
terminate the Plan. Notwithstanding the foregoing, no termination of the Plan
shall in any manner affect any Option theretofore granted without the consent of
the Optionee or the permitted transferee of the Option.
Section 10.3 Amendment. The Board may at any time and from time to
time and in any respect, amend or modify the Plan. Solely to the extent deemed
necessary or advisable by the Board, for purposes of complying with sections 422
or 162(m) of the Code or rules of any securities exchange or for any other
reason, the Board may seek the approval of any such amendment by the Company's
stockholders. Notwithstanding the foregoing, no amendment or modification of the
Plan shall in any manner affect any Option theretofore granted without the
consent of the Optionee or the permitted transferee of the Option.
<PAGE>
ARTICLE XI
MISCELLANEOUS
Section 11.1 Employment or Other Service. Nothing in the Plan, in the
grant of any Option or in any Stock Option Agreement shall confer upon any
Eligible Person the right to continue in the capacity in which he is employed by
or otherwise provides services to the Company or any Subsidiary. Notwithstanding
anything contained in the Plan to the contrary, unless otherwise provided in a
Stock Option Agreement, no Option shall be affected by any change of duties or
position of the Optionee (including a transfer to or from the Company or any
Subsidiary), so long as such Optionee continues to be an Eligible Person.
Section 11.2 Rights as Stockholder. An Optionee or the permitted
transferee of an Option shall have no rights as a stockholder with respect to
any shares subject to such Option prior to the purchase of such shares by
exercise of such Option as provided herein. Nothing contained herein or in the
Stock Option Agreement relating to any Option shall create an obligation on the
part of the Company to repurchase any shares of Common Stock purchased
hereunder.
Section 11.3 Other Compensation and Benefit Plans. The adoption of the
Plan shall not affect any other stock option or incentive or other compensation
plans in effect for the Company or any Subsidiary, nor shall the Plan preclude
the Company from establishing any other forms of incentive or other compensation
for employees of the Company or any Subsidiary. The amount of any compensation
deemed to be received by an Optionee as a result of the exercise of an Option or
the sale of shares received upon such exercise shall not constitute compensation
with respect to which any other employee benefits of such Optionee are
determined, including, without limitation, benefits under any bonus, pension,
profit sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Board or the Committee or provided by the terms
of such plan.
Section 11.4 Plan Binding on Successors. The Plan shall be binding
upon the Company, its successors and assigns, and the Optionee, his executor,
administrator and permitted transferees.
Section 11.5 Construction and Interpretation. Whenever used herein,
nouns in the singular shall include the plural, and the masculine pronoun shall
include the feminine gender. Headings of Articles and Sections hereof are
inserted for convenience and reference and constitute no part of the Plan.
Section 11.6 Severability. If any provision of the Plan or any Stock
Option Agreement shall be determined to be illegal or unenforceable by any court
of law in any jurisdiction, the remaining provisions hereof and thereof shall be
severable and enforceable in accordance with their terms, and all provisions
shall remain enforceable in any other jurisdiction.
Section 11.7 Governing Law. The validity and construction of this Plan
and of the Stock Option Agreements shall be governed by the laws of the State of
Delaware.
Exhibit 5.1
Opinion and Consent of Dewey Ballantine LLP with respect
to the legality of the securities being registered
May 24, 1999
MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Gentlemen:
We have acted as counsel to MedImmune, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing by the Company of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, for the registration of 2,750,000 shares of
the Company's common stock, $.01 par value per share (the "Shares"), which may
be issued upon exercise of stock options pursuant to the Company's 1999 Stock
Option Plan (the "Plan").
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Company and such other
instruments as we have deemed necessary or appropriate as a basis for the
opinions expressed below.
Based on the foregoing, we are of the opinion that:
1. The issuance of the Shares upon exercise of options granted under the
Plan has been lawfully and duly authorized; and
2. When the Shares have been issued and delivered in accordance with the
terms of the Plan, the Shares will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
DEWEY BALLANTINE LLP
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 25, 1999, except for Note 18,
which is as of February 24, 1999, which appears in MedImmune, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
McLean, Virginia
May 21, 1999
