<PAGE>
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
- -------------------------------------------------------------------------------
{X} QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
Commission File No. 0-19131
MEDIMMUNE, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1555759
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
35 West Watkins Mill Road, Gaithersburg, MD 20878
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (301) 417-0770
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
As of March 31, 2000, 69,554,994 shares of Common Stock, par value $0.01 per
share, were outstanding.
<PAGE>
MEDIMMUNE, INC.
INDEX TO FORM 10-Q
<TABLE>
<CAPTION>
Part I Financial Information Page
<S> <C>
Item 1. Consolidated Financial Statements
Consolidated Balance Sheets 1-2
Consolidated Statements of Operations 3
Condensed Consolidated Statements of Cash Flows 4
Notes to Consolidated Financial Statements 5-7
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 8-10
Part II Other Information 11
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
Synagis, CytoGam, Ethyol, RespiGam, NeuTrexin, and Hexalen are
registered trademarks of the Company.
</TABLE>
ii
<PAGE>
ITEM 1. FINANCIAL STATEMENTS
MEDIMMUNE, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------ ------------
ASSETS: (Unaudited)
<S> <C> <C>
Cash and cash equivalents $104,294 $ 36,570
Marketable securities 319,454 214,750
Trade receivables, net 70,763 86,894
Inventory, net 25,282 31,777
Deferred tax assets 25,111 23,132
Other current assets 9,705 8,715
-------- --------
Total Current Assets 554,609 401,838
Property and equipment, net 87,620 87,452
Deferred tax assets 162,490 128,990
Marketable securities 28,625 19,074
Other assets 12,881 11,070
-------- --------
Total Assets $846,225 $648,424
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY:
Accounts payable $ 1,880 $ 2,995
Accrued expenses 89,557 65,300
Product royalties payable 25,432 28,527
Other current liabilities 2,121 2,130
-------- --------
Total Current Liabilities 118,990 98,952
Long-term debt 10,194 10,366
Other liabilities 2,009 2,027
-------- --------
Total Liabilities 131,193 111,345
-------- --------
Commitments and Contingencies
1
<PAGE>
<CAPTION>
SHAREHOLDERS' EQUITY:
Preferred stock, $.01 par value; authorized
5,524,525 shares; none issued or outstanding -- --
Common stock, $.01 par value; authorized
120,000,000 shares; issued and outstanding
69,554,994 at March 31, 2000 and
67,946,778 at December 31, 1999 696 679
Paid-in capital 774,422 656,244
Accumulated deficit (60,254) (118,241)
Accumulated other comprehensive income (loss) 168 (1,603)
-------- --------
Total Shareholders' Equity 715,032 537,079
-------- --------
Total Liabilities and Shareholders' Equity $846,225 $648,424
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE>
MEDIMMUNE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(in thousands except per share data)
<TABLE>
<CAPTION>
For the
three months ended
March 31,
2000 1999
--------- ---------
<S> <C> <C>
Revenues:
Product sales $195,776 $133,414
Other revenue 2,565 2,039
-------- --------
Total revenues 198,341 135,453
-------- --------
Costs and Expenses:
Cost of sales 45,028 32,882
Research and development 15,493 13,766
Selling, administrative and general 50,673 40,925
Other operating expenses 2,292 5,868
-------- --------
Total expenses 113,486 93,441
-------- --------
Operating income 84,855 42,012
Interest income 5,182 2,837
Interest expense (123) (958)
-------- --------
Income before income taxes 89,914 43,891
Provision for income taxes 31,927 18,178
-------- --------
Net earnings $ 57,987 $ 25,713
======== ========
Basic earnings per share $ 0.84 $ 0.44
======== ========
Shares used in calculation of basic earnings per
share 68,636 59,080
======== ========
Diluted earnings per share $ 0.80 $ 0.38
======== ========
Shares used in calculation of diluted earnings
per share 72,907 69,455
======== ========
</TABLE>
The accompanying notes are an integral part of these financial
statements.
3
<PAGE>
MEDIMMUNE, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in thousands)
<TABLE>
<CAPTION>
For the
Three Months Ended
March 31,
2000 1999
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 57,987 $ 25,713
Noncash items:
Deferred taxes 31,927 18,103
Depreciation and amortization 1,691 1,087
Amortization of premium on marketable securities (312) (348)
Change in allowances for trade accounts receivable 1,143 (6,722)
Other (187) (657)
Other changes in assets and liabilities 39,126 19,279
-------- --------
Net cash provided by operating activities 131,375 56,455
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Increase in marketable securities (112,171) (69,866)
Capital expenditures (2,109) (1,719)
Investment in strategic alliance -- (6,350)
-------- --------
Net cash used in investing activities (114,280) (77,935)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common stock
and exercise of stock options 50,787 28,513
Decrease in long-term debt (143) (2,543)
-------- --------
Net cash provided by financing activities 50,644 25,970
-------- --------
Effect of exchange rate changes on cash (15) (115)
Net increase in cash and cash equivalents 67,724 4,375
Cash and cash equivalents at beginning of period 36,570 44,730
-------- --------
Cash and cash equivalents at end of period $104,294 $ 49,105
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
MEDIMMUNE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
GENERAL
In the opinion of management, the accompanying unaudited condensed consolidated
financial statements include all adjustments, consisting only of adjustments of
a normal recurring nature, necessary to present fairly the financial position,
results of operations and cash flows of MedImmune, Inc. and its subsidiaries
("the Company"). The financial results of the first quarter may not be
indicative of the financial results reported for the full year.
INVENTORY
Inventory, net of reserves, is comprised of the following (in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
---------- ------------
<S> <C> <C>
Raw Materials $ 12,009 $ 11,502
Work in Process 14,160 15,129
Finished Goods 5,164 9,365
-------- --------
31,333 35,996
Less noncurrent (6,051) (4,219)
-------- --------
$ 25,282 $ 31,777
======== ========
</TABLE>
The Company has purchased plasma and other raw materials for use in production
of CytoGam in the Company's Frederick manufacturing facility, which is subject
to U.S. Food and Drug Administration ("FDA") licensure and approval. Due to the
uncertainty surrounding the likelihood and timing of FDA approval, this
inventory has been classified as noncurrent in the accompanying balance sheet.
As a result of the June 1998 FDA approval of Synagis and the market acceptance
of Synagis, the Company reserved approximately $9.2 million against its RespiGam
inventory as minimal product sales were expected to result from this inventory
in the foreseeable future. RespiGam reserve balances at March 31, 2000 and
December 31, 1999 were $4.4 million and $5.8 million, respectively.
Finished goods at March 31, 2000 and December 31, 1999 include approximately
$1.4 million and $1.7 million, respectively, of by-products that result from the
production of the Company's principal products at one of its contract
manufacturers and are held for resale. As of March 31, 2000, minimal sales of
these by-products have occurred. The March 31, 2000 and December 31, 1999
balances are net of a reserve of $1.7 million and $1.7 million, respectively.
5
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EARNINGS PER SHARE
The Company computes earnings per share in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share." Basic
earnings per share is computed based on the weighted average number of common
shares outstanding during the period. Diluted earnings per share is computed
based on the weighted average shares outstanding and the dilutive impact of
common stock equivalents outstanding during the period. The dilutive effect of
convertible debt is measured using the "if converted" method. The dilutive
effect of stock options is measured using the treasury stock method. Common
stock equivalents are not included in periods where there is a loss as they are
anti-dilutive. The following is a reconciliation of the numerator and
denominator of the diluted EPS computation for the periods reported.
<TABLE>
<CAPTION>
Three Months Three Months
Ended March 31, 2000 Ended March 31, 1999
-------------------- --------------------
<S> <C> <C>
Numerator:
Net earnings $ 57,987 $ 25,713
Interest on 7% convertible notes, net of
amounts capitalized and related taxes -- 358
-------- --------
Numerator for diluted EPS $ 57,987 $ 26,071
======== ========
Denominator:
Weighted average shares outstanding 68,636 59,080
Effect of dilutive securities:
Stock options 4,271 4,277
7% convertible notes -- 6,098
-------- --------
Denominator for diluted EPS 72,907 69,455
======== ========
</TABLE>
Options to purchase 1,461,095 shares of common stock with prices from $169.00 to
$203.94 per share were outstanding in the first quarter of 2000 and options to
purchase 1,765,353 shares of common stock with prices from $53.33 to $201.33 per
share were outstanding in the first quarter of 1999; these shares were not
included in the computation of diluted earnings per share because they were
anti-dilutive.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities" was issued. SFAS No. 133 establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts and for hedging activities. SFAS No. 133 requires
companies to recognize all derivatives as either assets or liabilities, with the
instruments measured at fair value. The accounting for changes in fair value,
gains or losses, depends on the intended use of the derivative and its resulting
designation. The Company will adopt SFAS No. 133 by January 1, 2001. Because of
the Company's minimal use of derivatives, management does not anticipate that
the adoption of SFAS No. 133 will have a material effect on the earnings or
financial position of the Company.
6
<PAGE>
In December 1999, the Securities and Exchange Commission ("SEC") issued Staff
Accounting Bulletin ("SAB") No. 101. SAB 101 summarizes certain of the SEC's
views in applying generally accepted accounting principles to certain revenue
transactions in financial statements. Implementation of the SAB is required in
the second quarter of 2000. The SAB addresses the revenue recognition for
nonrefundable fees received upon entering into contractual arrangements and
milestone fees received upon the occurrence of certain events. The Company is
still evaluating the impact of the SAB on its financial statements, and expects
that the accounting for certain of its agreements may be impacted by the SAB.
COMPREHENSIVE INCOME
Comprehensive income is comprised of net income and other comprehensive income.
Other comprehensive income includes certain changes in equity that are excluded
from net income, such as translation adjustments, and unrealized holding gains
and losses on available-for-sale marketable securities. Comprehensive income for
the three months ended March 31, 2000 was $59.8 million versus $25.4 million for
the comparable period in 1999.
RESTATEMENTS
In November 1999, the Company completed a merger with U.S. Bioscience, Inc.,
which was accounted for as a pooling-of-interests. Accordingly, the financial
statements and related notes presented herein have been restated for all periods
to include the accounts and operations of U.S. Bioscience, Inc. Prior year
amounts have been reclassified to conform with the current presentation.
LEGAL PROCEEDINGS
In 1998, MediGene AG initiated a legal action against Loyola University of
Chicago and the Company in the U.S. District Court for the Northern District of
Illinois alleging, among other things, breach of contract and tortious
interference by the Company with an alleged prospective business relationship
between MediGene and Loyola. The claims relate to human papillomavirus vaccine
technology covered by contracts between MediGene and the Company and by a
license agreement from Loyola to the Company, under which the Company granted a
sublicense to SmithKline Beecham. MediGene claims monetary damages from the
Company and ownership of the patents in question, as well as rescission of the
Company's license agreement from Loyola or rights as a third-party beneficiary
thereof.
The Company intends to continue to defend vigorously its position against these
claims. After consultation with its counsel, the Company believes that, while
the matter is not free from doubt, it has meritorious defenses. The Company also
believes that the outcome of this dispute is unlikely to have a material adverse
effect on its financial position.
7
<PAGE>
ITEM 2.
MEDIMMUNE, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2000 AND 1999
<TABLE>
<CAPTION>
----------------------------------------------------------------------------
PRODUCT SALES (IN MILLIONS) 2000 1999
----------------------------------------------------------------------------
<S> <C> <C>
Synagis $176.2 $116.2
----------------------------------------------------------------------------
CytoGam 10.0 9.7
----------------------------------------------------------------------------
Ethyol 5.0 4.8
----------------------------------------------------------------------------
Other Products 4.6 2.7
----------------------------------------------------------------------------
TOTAL $195.8 $133.4
----------------------------------------------------------------------------
</TABLE>
Product sales increased 47% to $195.8 million in first quarter 2000 versus
$133.4 million in first quarter 1999, principally due to increased sales of
Synagis. Synagis sales increased 52% to $176.2 million for the first quarter of
2000, and included $4.5 million of international sales to Abbott Laboratories
("Abbott"), compared to first quarter 1999 sales of $116.2 million, including
$1.5 million of international sales to Abbott. Abbott is the Company's exclusive
distributor of Synagis outside of the United States. The terms of the Company's
agreement with Abbott provide for the Company to receive 40 to 50 percent of end
user sales. The Company initially recognizes sales to Abbott when Synagis is
shipped to Abbott based on a contractual, guaranteed transfer price; this amount
approximates 60 to 75 percent of the total sales revenue expected to be received
for each vial. Following the end of each quarter, Abbott remits to the Company a
report detailing end user sales by Abbott for the quarter and the Company
recognizes revenue for the additional amount due in excess of the transfer price
and up to 40 to 50 percent of the end user selling price. Total Synagis sales to
date for the 1999/2000 respiratory syncytial virus ("RSV") season are $351.7
million versus $226.0 million for the 1998/1999 RSV season. CytoGam sales
increased 3% to $10.0 million in the first quarter of 2000 from $9.7 million in
the first quarter of 1999, reflecting a 51% increase in domestic units sold and
a 5% price increase, offset by a 94% decrease in international units sold.
International units are sold at a lower price than domestic units. The Company
believes that a portion of the CytoGam sales that occurred in both periods were
as a result of product substitution occurring because of the worldwide shortage
of standard IVIG products. The duration of this shortage and continued impact,
if any, on product sales cannot be determined at this time. The Company is aware
that certain state Medicaid agencies have begun to limit reimbursement of
CytoGam as a substitute for IVIG products. Sales of Ethyol to the Company's
domestic and international distribution partners increased 3% in the first
quarter 2000 to $5.0 million, as compared to $4.8 million in the 1999 quarter.
The increase results from a 10% higher price per vial paid to the Company by its
partners for the Company's percentage of end user sales, offset by a 6% decrease
in units sold to the distributors. Other product sales of $4.6 million in the
2000 quarter compared to $2.7 million in the 1999 period. Other revenues in the
2000 first quarter of $2.6 million increased from $2.0 million in the 1999
quarter, and consists primarily of research funding from SmithKline Beecham
("SKB") for development of a human papillomavirus vaccine.
8
<PAGE>
Cost of sales in first quarter 2000 increased 37% to $45.0 million from $32.9
million in first quarter 1999. Gross margin of 77% in the 2000 quarter compared
to 75% in the 1999 quarter, reflecting an increase in the product mix towards
Synagis, which comprised 90% of the Company's product sales in first quarter
2000, versus 87% in first quarter 1999. Synagis has a higher gross margin than
the Company's other products.
Research, development and clinical spending increased 13% to $15.5 million in
the first quarter of 2000 from $13.8 million in the first quarter of 1999. This
increase is a result of higher expenditures on the Company's clinical trials
with Synagis in infants with congenital heart disease and the Company's human
papillomavirus vaccine trials, as well as increased infrastructure costs needed
to support the number of ongoing clinical trials. Clinical spending is expected
to increase in the coming quarters as the Company moves more of its product
candidates into the clinic and expands trials on products already in the clinic.
Selling, administrative and general expenses increased to $50.7 million in this
year's quarter from $40.9 million in the 1999 quarter, an increase of 24%.
Expenses in first quarter 2000 include increased wage and related expenses as
well as increased co-promotion expense to the Ross Products Division of Abbott
Laboratories for the promotion of Synagis in the United States. Co-promotion
expense increases as net domestic Synagis sales increase. As a percentage of
product sales, SG&A expense decreased to 26% in the 2000 quarter from 31% in the
1999 quarter.
Other operating expenses of $2.3 million in the 2000 period decreased from $5.9
million in the 1999 period. Charges in both periods include start-up costs at
the Company's manufacturing facility in Frederick, Maryland. Charges in the 2000
period reflect manufacturing start-up costs for the portion of the Company's
Frederick Manufacturing Center ("FMC") relating to the production of CytoGam,
while the 1999 period reflects start-up costs at the FMC for Synagis and
CytoGam. The Company received FDA approval in December 1999 for the production
of Synagis at the FMC. In March of 2000, the Company filed an application for
FDA approval relating to a portion of the production of CytoGam at the FMC.
There can be no assurances that the necessary approval will be obtained in a
timely fashion or at all.
Interest income of $5.2 million was earned in the 2000 first quarter, compared
to $2.8 million in the first quarter of 1999, reflecting higher cash balances
available for investment, and an increase in interest rates which improved the
overall portfolio yield. Interest expense of $0.1 million and $1.0 million was
incurred in the 2000 and 1999 quarters, respectively. Interest expense in the
1999 quarter reflects primarily interest due on the Company's convertible debt,
net of capitalized interest. The debt was converted to common stock during 1999.
The Company recorded a provision for income taxes of $31.9 million in the 2000
quarter, resulting in an effective rate of 35.5%. The variation from the
statutory rate is principally due to tax credits for research and development
expenditures, credits earned for Orphan Drug status of certain research and
development expenses, and the impact of the Company's effective state tax rates.
The Company expects that its effective tax rate for the remainder of 2000 will
approximate the first quarter rate.
Net earnings in the first quarter of 2000 was $58.0 million, or $0.84 basic and
$0.80 diluted net earnings per share. Shares used in computing basic and diluted
net earnings per share were 68.6 million and 72.9 million, respectively. Net
earnings for the first quarter of 1999 was $25.7 million, or $0.44 basic and
$0.38 diluted net earnings per share. Shares used in computing the first quarter
1999 net earnings per
9
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share were 59.1 million and 69.5 million, respectively.
Quarterly financial results may vary significantly due to seasonality of Synagis
product sales, fluctuation in sales of CytoGam, milestone payments, research
funding and expenditures for research, development and marketing programs.
Synagis sales are expected to occur primarily during, and in proximity to, the
RSV season, which typically occurs between October and April in the United
States. No assurances can be given that adequate product supply will be
available to meet demand.
LIQUIDITY AND CAPITAL RESOURCES
Cash and marketable securities at March 31, 2000 were $452.4 million compared to
$270.4 million at December 31, 1999. Working capital increased to $435.6 million
at March 31, 2000 versus $302.9 million at December 31, 1999. Net cash provided
by operating activities in the three months ended March 31, 2000 was $131.4
million, reflecting net income for the period and decreases in accounts
receivable, partially offset by increases in accrued expenses, primarily as a
result of amounts due to Abbott for co-promotion of Synagis. Outflows for
investing activities included capital expenditures of $2.1 million, net of
capitalized interest, and increases in investments of $112.2 million for the
three months ended March 2000. During the three months ended March 31, 2000,
stock option exercises provided $50.8 million of cash, compared to $8.5 million
in the 1999 quarter. The 1999 quarter also included a private placement
transaction of 403,000 shares of common stock issued for net proceeds to the
Company of $20.0 million.
The Company's existing funds at March 31, 2000, together with funds expected to
be generated from product sales and investment income, are expected to provide
sufficient liquidity to meet the anticipated needs of the business for the
foreseeable future, absent the occurrence of any unforeseen events.
--------------------
THIS QUARTERLY REPORT MAY CONTAIN, IN ADDITION TO HISTORICAL INFORMATION,
CERTAIN FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. SUCH
STATEMENTS REFLECT MANAGEMENT'S CURRENT VIEWS, AND ARE BASED ON CERTAIN
ASSUMPTIONS. ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE CURRENTLY
ANTICIPATED AS A RESULT OF A NUMBER OF FACTORS, INCLUDING RISK AND UNCERTAINTIES
DISCUSSED IN THE COMPANY'S OTHER FILINGS WITH THE U.S. SECURITIES AND EXCHANGE
COMMISSION. MEDIMMUNE CAUTIONS THAT RSV DISEASE OCCURS PRIMARILY DURING THE
WINTER MONTHS; THE COMPANY BELIEVES ITS OPERATING RESULTS WILL REFLECT THAT
SEASONALITY FOR THE FORSEEABLE FUTURE. THE COMPANY IS ALSO DEVELOPING SEVERAL
PRODUCTS FOR POTENTIAL FUTURE MARKETING. THERE CAN BE NO ASSURANCE THAT SUCH
DEVELOPMENT EFFORTS WILL SUCCEED, THAT SUCH PRODUCTS WILL RECEIVE REQUIRED
REGULATORY CLEARANCE OR THAT, EVEN IF SUCH REGULATORY CLEARANCE WERE RECEIVED,
SUCH PRODUCTS WOULD ULTIMATELY ACHIEVE COMMERICAL SUCCESS.
10
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PART II
OTHER INFORMATION
Item 1. Legal Proceedings - None
Item 2. Changes in Securities - None
Item 3. Defaults upon Senior Securities - None
Item 4. Submission of Matters to a Vote of Security Holders - None
Item 5. Other Information - None
Item 6. Exhibits and reports on Form 8-K
(a) Exhibits: 3.3 By-Laws, as amended
(b) Reports on Form 8-K:
Report Date Event Reported
----------- --------------
1/14/00 Restated Condensed Combined Financial
Statements to Reflect the Merger with U.S. Bioscience,
Inc. as a pooling-of-interests
1/18/00 Restated Condensed Combined Financial
Statements to Reflect the Merger with U.S. Bioscience,
Inc. as a Pooling-of-Interests
1/26/00 MedImmune Sets New Revenue and Earnings Records
1/31/00 Restated Condensed Combined Financial
Statements to Reflect the Merger with U.S. Bioscience,
Inc. as a Pooling-of-Interests
2/17/00 MedImmune's Board of Directors Authorizes
Three-for-One Stock Split
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MEDIMMUNE, INC.
(Registrant)
By: /s/ David M. Mott
----------------------------------
Date: May 15, 2000 David M. Mott
Vice Chairman and Chief Financial Officer
11
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MEDIMMUNE, INC.
Incorporated under the laws
of the State of Delaware
--------------
BY-LAWS
--------------
As Amended through February 17, 2000
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Offices........................................................................................1
SECTION 1. Registered Office..................................................................1
SECTION 2. Other Offices......................................................................1
ARTICLE II Meetings of Stockholders; Stockholders'Consent in Lieu of Meeting.............................1
SECTION 1. Annual Meetings....................................................................1
SECTION 2. Special Meetings...................................................................1
SECTION 3. Notice of Meetings.................................................................1
SECTION 4. Quorum.............................................................................2
SECTION 5. Organization.......................................................................2
SECTION 6. Order of Business..................................................................2
SECTION 7. Voting.............................................................................3
SECTION 8. Inspection.........................................................................4
SECTION 9. List of Stockholders...............................................................4
SECTION 10. Action Without a Meeting...........................................................4
ARTICLE III Board of Directors...........................................................................5
SECTION 1. General Powers.....................................................................5
SECTION 2. Number and Term of Office..........................................................5
SECTION 3. Election of Directors..............................................................5
SECTION 4. Resignation, Removal and Vacancies.................................................5
SECTION 5. Meetings...........................................................................6
SECTION 6. Directors' Consent in Lieu of Meeting..............................................7
SECTION 7. Action by Means of Conference Telephone or Similar Communications Equipment........7
SECTION 8. Committees.........................................................................7
ARTICLE IV Officers......................................................................................8
SECTION 1. Executive Officers.................................................................8
SECTION 2. Authority and Duties...............................................................8
SECTION 3. Other Officers.....................................................................8
SECTION 4. Term of Office, Resignation and Removal............................................8
SECTION 5. Vacancies..........................................................................8
SECTION 6. Chairman of the Board..............................................................9
SECTION 7. The President......................................................................9
SECTION 8. The Secretary......................................................................9
SECTION 9. The Treasurer......................................................................9
ARTICLE V Contracts, Checks, Draft, Bank Accounts, Etc..................................................10
SECTION 1. Execution of Documents............................................................10
SECTION 2. Deposits..........................................................................10
</TABLE>
i
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<TABLE>
<S> <C>
SECTION 3. Proxies in Respect of Stock or Other Securities of Other Corporations.............10
ARTICLE VI Shares and Their Transfer; Fixing Record Date................................................10
SECTION 1. Certificates for Shares...........................................................10
SECTION 2. Registered Stockholders...........................................................11
SECTION 3. Transfer and Registration of Stock................................................11
SECTION 4. Addresses of Stockholders.........................................................11
SECTION 5. Lost, Destroyed and Mutilated Certificates........................................11
SECTION 6. Regulations.......................................................................11
SECTION 7. Fixing Date for Determination of Stockholders of Record...........................11
ARTICLE VII Seal .......................................................................................12
ARTICLE VIII Fiscal Year................................................................................12
ARTICLE IX Indemnification and Insurance................................................................12
SECTION 1. Nature of the Indemnity...........................................................12
SECTION 2. Successful Defense................................................................13
SECTION 3. Determination That Indemnification Is Proper......................................13
SECTION 4. Advance Payment of Expenses.......................................................13
SECTION 5. Procedure for Indemnification of Directors and Officers...........................14
SECTION 6. Survival; Preservation of Other Rights............................................14
SECTION 7. Insurance.........................................................................15
SECTION 8. Severability......................................................................15
SECTION 9. Subsidiaries......................................................................15
ARTICLE X Amendments....................................................................................15
</TABLE>
ii
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EXHIBIT 3.3
MEDIMMUNE, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of MedImmune, Inc. (the
"Corporation") in the State of Delaware shall be at Corporation Trust Center,
1209 Orange Street, City of Wilmington, County of New Castle, and the registered
agent in charge thereof shall be The Corporation Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may also have an office or
offices at other place or places within or without the State of Delaware.
ARTICLE II
MEETINGS OF STOCKHOLDERS;
STOCKHOLDERS' CONSENT IN LIEU OF MEETING
SECTION 1. ANNUAL MEETINGS. The annual meeting of the stockholders for the
election of directors, and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, date and hour as
shall be fixed by the Board of Directors (the "Board") and designated in the
notice or waiver of notice thereof; except that no annual meeting need be held
if all actions, including the election of directors, required by the General
Corporation Law of the State of Delaware to be taken at a stockholders' annual
meeting are taken by written consent in lieu of meeting pursuant to Section 10
of this Article.
SECTION 2. SPECIAL MEETINGS. A special meeting of the stockholders for any
purpose or purposes may be called by the Board, the Chairman, if any, the
President or the Secretary or the recordholders of at least a majority of the
shares of Common Stock of the Corporation issued and outstanding, to be held at
such place, date and hour as shall be designated in the notice or waiver of
notice thereof.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise required by statute or
by the Certificate of Incorporation or these By-laws, notice of each annual or
special meeting of the stockholders shall be given to each stockholder of record
entitled to vote at such meeting not less than 10 or more than 60 days before
the day on which the meeting is to be held, by delivering a typewritten or
printed notice thereof to him personally, or by mailing a copy of such notice,
postage prepaid, directly to each such
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stockholder at his address as it appears in the records of the Corporation, or
by transmitting notice thereof to him at such address by telegraph, cable or
telephone. Every such notice shall state the place and the date and hour of the
meeting, and, in case of a special meeting, the purpose or purposes for which
the meeting is called. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy, or who shall, in person or by attorney thereunto authorized, waive
such notice in writing, either before or after such meeting. Except as otherwise
provided in these By-laws, neither the business to be transacted at, nor the
purpose of, any meeting of the stockholders need be specified in any such waiver
of notice. Notice of any adjourned meeting of stockholders shall not be required
to be given, except when expressly required by law.
SECTION 4. QUORUM. At each meeting of the stockholders, except where
otherwise provided by the Certificate of Incorporation or these By-laws, the
holders of a majority of the issued and outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business. In the
absence of a quorum a majority in interest of the stockholders present in person
or represented by proxy and entitled to vote, or, in the absence of all the
stockholders entitled to vote, any officer entitled to preside at, or act as
secretary of, such meeting, shall have the power to adjourn the meeting from
time to time, until stockholders holding the requisite amount of stock shall be
present or represented. At any such adjourned meeting at which quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 5. ORGANIZATION. At each meeting of the stockholders, one of the
following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(a) the Chairman, if any;
(b) the President;
(c) any other officer of the Corporation designated by the Board of
Directors to act as chairman of such meeting and to preside thereat if the
Chairman, if any, or the President shall be absent from such meeting; or
(d) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat.
The Secretary, or if he shall be presiding over the meeting in accordance
with the provisions of this Section, or if he shall be absent from such meeting,
the person whom the chairman of such meeting shall appoint, shall act as
secretary of such meeting and keep the minutes thereof.
SECTION 6. ORDER OF BUSINESS. The order of business at each meeting of the
stockholders shall be determined by the chairman of such meeting, but such order
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of business may be changed by a majority in voting interest of those present in
person or by proxy at such meeting and entitled to vote thereat.
SECTION 7. VOTING. Except as otherwise provided by law or by the
Certificate of Incorporation or these By-laws, at each meeting of the
stockholders, every stockholder of the Corporation shall be entitled to one vote
in person or by proxy for each share of stock of the Corporation held by him and
registered in his name on the books of the Corporation:
(a) on the date fixed pursuant to Section 7 of Article VI as the
record date for the determination of stockholders entitled to vote at such
meeting; or
(b) if no such record date shall have been fixed, at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of such meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned
meeting. Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held. Persons whose stock is pledged shall be entitled to vote,
unless in the transfer by the pledgor on the books of the Corporation, he has
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or his proxy may represent such stock and vote thereon. If shares or other
securities having voting power stand in the record of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or if two or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary shall be
given the written notice to the contrary and shall be furnished with a copy of
the instrument or order appointing them or creating the relationship wherein it
is so provided, their acts with respect to voting shall have the following
effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds
all; and
(c) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by
law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section shall be
the majority or even-split in interest. The Corporation shall not vote directly
or indirectly any share of its own capital stock. Any vote of stock may be given
by the stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; PROVIDED,
HOWEVER, that no proxy shall be voted after three years from its date, unless
said proxy provides for a longer period. At all meetings of the stockholders,
all
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matters (except where other provision is made by law, by the Certificate of
Incorporation or these By-laws) shall be decided by the vote of a majority in
interest of the stockholders present in person or by proxy at such meeting and
entitled to vote thereon, a quorum being present. Unless demanded by a
stockholder present in person or by proxy at any meeting and entitled to vote
thereon, the vote on any question need not be by ballot. Upon a demand by any
such stockholder for a vote by ballot upon any question, such vote by ballot
shall be taken. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
SECTION 8. INSPECTION. The chairman of the meeting may at any time appoint
two or more inspectors to serve at any meeting of the stockholders. Any
inspector may be removed, and a new inspector or inspectors appointed, by the
Board at any time. Such inspectors shall decide upon the qualifications of
voters, accept and count votes, declare the results of such vote, and subscribe
and deliver to the secretary of the meeting a certificate stating the number of
shares of stock issued and outstanding and entitled to vote thereon and the
number of shares voted for and against the question, respectively. The
inspectors need not be stockholders of the Corporation, and any director or
officer of the Corporation may be an inspector other than a vote for or against
his election to any position with the Corporation or on any other matter in
which he may be directly interested. Before acting as herein provided, each
inspector shall subscribe an oath faithfully to execute the duties of an
inspector with strict impartiality and according to the best of his ability.
SECTION 9. LIST OF STOCKHOLDERS. It shall be the duty of the Secretary or
other officer of the Corporation who shall have charge of its stock ledger to
prepare and make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to any such meeting,
during ordinary business hours, for a period of at least 10 days prior to such
meeting, either at a place within the city where such meeting is to be held,
which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. Such list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 10. ACTION WITHOUT A MEETING. Any action required by law to be
taken at any annual or special meeting of the stockholders of the Corporation,
or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of
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stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who
signs the consent and the number of shares which the stockholder is entitled to
vote. No written consent shall be effective to take the corporation action
referred to therein unless, within 60 days of the earliest date consent
delivered in the manner required by law to the Corporation, written consent
signed by a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or an agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business, property and affairs of the
Corporation shall be managed by the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law or by
the Certificate of Incorporation directed or required to be exercised or done by
the stockholders.
SECTION 2. NUMBER AND TERM OF OFFICE. The number of directors shall be
fixed from time to time by the whole Board. The tern "whole Board" is used
herein to refer to the number of directors from time to time authorized to be on
the Board regardless of the number of directors then in office. Directors need
not be stockholders. Each director shall hold office until his successor is
elected and qualified, or until his earlier death or resignation or removal in
the mariner hereinafter provided.
SECTION 3. ELECTION OF DIRECTORS. At each meeting of the stockholders for
the election of directors at which a quorum is present, the persons receiving
the greatest number of votes, up to the number of directors to be elected, of
the stockholders present in person or by proxy and entitled to vote thereon
shall be the directors. Unless an election by ballot shall be demanded as
provided in Section 7 of Article II, election of directors may be conducted in
any manner approved at such meeting.
SECTION 4. RESIGNATION, REMOVAL AND VACANCIES. Any director may resign at
any time by giving written notice to the Board, the Chairman, if any, the
President or the Secretary. Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Any director or the entire Board may be removed, with or without cause, at
any time by vote of the holders two-thirds of the shares then entitled to vote
at an election of directors, or by written consent of the stockholders pursuant
to Section 10 of Article II.
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Vacancies occurring in the Board for any reason may be filled by vote of
the stockholders or by their written consent pursuant to Section 10 of Article
II or by vote of the Board or by the directors' written consent pursuant to
Section 6 of this Article. If the number of directors then in office is less
than a quorum, such other vacancies may be filled by vote of a majority of the
directors then in office.
SECTION 5. MEETINGS.
(A) ANNUAL MEETINGS. As soon as practicable after each annual election of
directors, the Board shall meet for the purpose of organization and the
transaction of other business, unless it shall have transacted all such business
by written consent pursuant to Section 6 of this Article.
(B) OTHER MEETINGS. Other meetings of the Board shall be held at such times
and places as the Board, the Chairman, if any, or the president shall from time
to time determine.
(C) NOTICE OF MEETINGS. The Secretary shall give notice to each director of
each meeting, including the time, place and purpose of such meeting. Notice of
each such meeting shall be mailed to each director, addressed to him at his
residence or usual place of business, at least two days before the day on which
such meeting is to be held, or shall be sent to him at such place by telegraph,
cable, wireless or other form of recorded communication, or be delivered
personally or by telephone not later than the day before the day on which such
meeting is to be held, but notice need not be given to any director who shall
attend such meeting. A written waiver or notice, signed by the person entitled
thereto, whether before or after the time of the meeting stated therein, shall
be deemed equivalent to notice.
(D) PLACE OF MEETINGS. The Board may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(E) QUORUM AND MANNER OF ACTING. One-third of the total number of directors
then in office (but not less than two if the number of directors is greater than
one) shall be present in person at any meeting of the Board in order to
constitute a quorum for the transaction of business at such meeting, and the
vote of a majority of those directors present at any such meeting at which a
quorum is present shall be necessary for the passage of any resolution or act of
the Board, except as otherwise expressly required by law or these By-laws. In
the absence of a quorum for any such meeting, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum shall
be present.
(F) ORGANIZATION. At each meeting of the Board, one of the following shall
act as chairman of the meeting and preside, in the following order of
precedence:
(b) the Chairman, if any;
(c) the President (if a director);
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(d) any director chosen by a majority of the directors present.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the Chairman
shall appoint shall act as secretary of such meeting and keep the minutes
thereof.
SECTION 6. DIRECTORS' CONSENT IN LIEU OF MEETING. Any action required or
permitted to be taken at any meeting of the Board may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by all the directors and such
consent is filed with the minutes of the proceedings of the Board.
SECTION 7. ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Any one or more members of the Board may participate
in a meeting of the Board by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the Board, designate an Executive Committee and such other
committees as it deems appropriate. Each committee shall consist of one or more
of the Directors of the Corporation. The Board may designate one or more of the
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she,
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power to amend
the certificate of incorporation (except that a committee may, to the extent
authorized in the resolution providing for the issuance of shares of stock
adopted by the Board of Directors as provided in Section 151(a) of the Delaware
General Corporation Law, fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or exchange of
such shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation or fix the number
of shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopt an agreement of merger or consolidation under
section 251 or 252 of the Delaware General Corporation Law, recommend to the
stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, or amend these By-Laws. The
Executive and Compensation Committees of the Corporation
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shall have the power and authority to declare a dividend and to authorize the
issuance of stock.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The executive officers of the Corporation
shall be a President, a Secretary and a Treasurer and may include a Chairman and
such other officers as the Board may appoint pursuant to Section 3 of this
Article. Any two or more offices may be held by the same person.
SECTION 2. AUTHORITY AND DUTIES. All officers, as between themselves and
the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-laws or, to the
extent so provided, by the Board.
SECTION 3. OTHER OFFICERS. The Corporation may have such other officers,
agents and employees as the Board may deem necessary, including one or more
Assistant Secretaries and one or more Assistant Treasurers, each of whom shall
hold office for such period, have such authority, and perform such duties as the
Board, the Chairman, if any, or the President may from time to time determine.
The Board may delegate to any principal officer the power to appoint or remove
any such officers, agents or employees.
SECTION 4. TERM OF OFFICE, RESIGNATION AND REMOVAL. All officers shall be
elected or appointed by the Board and shall hold office for such term as may be
prescribed by the Board. Each officer shall hold office until his successor has
been elected or appointed and qualified or his earlier death or resignation or
removal in the manner hereinafter provided. The Board may require any officer to
give security for the faithful performance of his duties,
Any officer may resign at any time by giving written notice to the Board or
to the Chairman, if any, the President or the Secretary, and such resignation
shall take effect at the time specified therein or, if the time when it shall
become effective is not specified therein, at the time it is accepted by action
of the Board. Except as aforesaid, the acceptance of such resignation shall not
be necessary to make it effective.
All officers and agents elected or appointed by the Board shall be subject
to removal at any time by the Board or by the stockholders of the Corporation
with or without cause.
SECTION 5. VACANCIES. If the office of President, Secretary or Treasurer
becomes vacant for any reason, the Board shall fill such vacancy, and if any
other office becomes vacant, the Board may fill such vacancy. Any officer so
appointed or elected by the Board shall serve only until such tame as the
unexpired term of his predecessor shall have expired unless reelected or
reappointed by the Board.
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SECTION 6. CHAIRMAN OF THE BOARD. If there shall be a Chairman of the
Board, he shall preside at meetings of the Board and of the stockholders at
which he is present, and shall give counsel and advise to the Board and the
officers of the Corporation on all subjects concerning the welfare of the
Corporation and the conduct of its business. He shall perform such other duties
as the Board may from time to time determine.
SECTION 7. THE PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and unless the Chairman be appointed and present or
the Board has provided otherwise by resolution, he shall preside at all meetings
of the Board and the stockholders at which he is present. He shall have general
and active management and control of the business and affairs of the Corporation
subject to the control of the Board, and shall see that all orders and
resolutions of the Board are carried into effect.
SECTION 8. THE SECRETARY. The Secretary shall, to the extent practicable,
attend all meetings of the Board and all meetings of the stockholders and shall
record all votes and the minutes of all proceedings in a book to be kept for
that purpose. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board, and shall perform such other duties as may be
prescribed by the Board, the Chairman, if any, or the President, under whose
supervision he shall act. He shall keep in safe custody the seal of the
Corporation and affix the same to any duly authorized instrument requiring it
and, when so affixed, it shall be attested by his signature or by the signature
of the Treasurer or if appointed, an Assistant Secretary or an Assistant
Treasurer. He shall keep in safe custody the certificate books and stockholder
records and such other books and records as the Board may direct and shall
perform all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Chairman, if any,
President or the Board.
SECTION 9. THE TREASURER. The Treasurer shall have the care and custody of
the corporate funds and other valuable effects, including securities, and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation, and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chairman, if any, President and
directors, at the regular meetings of the Board, or whenever they may require
it, an account of all his transactions as Treasurer and of the financial
condition of the Corporation; and, in general, perform all the duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned to him by the Chairman, if any, President or the Board.
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ARTICLE V
CONTRACTS, CHECKS, DRAFT, BANK ACCOUNTS, ETC.
SECTION 1. EXECUTION OF DOCUMENTS. The Board shall designate the officers,
employees and agents of the Corporation who shall have power to execute and
deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other
orders for the payment of money and other documents for and in the name of the
Corporation, and may authorize such officers, employees and agents to delegate
such power (including authority to redelegate) by written instrument to other
officers, employees or agents of the Corporation; and, unless so designated or
expressly authorized by these By-laws, no officer or agent or employee shall
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable pecuniarily for any
purpose or to any amount.
SECTION 2. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation or
otherwise as the Board or Treasurer, or any other officer of the Corporation to
whom power in this respect shall have been given by the Board, shall select.
SECTION 3. PROXIES IN RESPECT OF STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS. The Board shall designate the officers of the Corporation who
shall have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have as the holder of stock or other
securities in any other corporation, and to vote or consent in respect of such
stock or securities. Such designated officers may instruct the person or persons
so appointed as to the manner of exercising such powers and rights, and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal, or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its said powers
and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
SECTION 1. CERTIFICATES FOR SHARES. Every owner of stock of the Corporation
shall be entitled to have a certificate certifying the number and class of
shares owned by him in the Corporation, which shall otherwise be in such form as
shall be prescribed by the Board. Certificates shall be issued in consecutive
order and shall be numbered in the order of their issue, and shall be signed by,
or in the name of, the Corporation by the Chairman, if any, the President or any
Vice President and by the Treasurer (or an Assistant Treasurer, if appointed) or
the Secretary (or an Assistant Secretary, if appointed). In case any officer or
officers who shall have signed any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates shall have
been delivered by the Corporation, such certificate or certificates may
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nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate had not ceased to be such
officer or officers of the Corporation.
SECTION 2. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, to receive notifications, to vote as such owner,
and to exercise all the rights and powers of an owner; and the Corporation shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the
State of Delaware.
SECTION 3. TRANSFER AND REGISTRATION OF STOCK.
(a) The transfer of stock and certificates of stock which represent the
stock of the Corporation shall be governed by Article 8 of Subtitle 1 of Title 6
of the Delaware Code (the Uniform Commercial Code), as amended from time to
time.
(b) Registration of transfers of shares of the Corporation shall be made
only on the books of the Corporation upon request of the registered holder
thereof, or of his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the Corporation, and upon the surrender
of the certificate or certificates for such shares properly endorsed or
accompanied by a stock power duly executed.
SECTION 4. ADDRESSES OF STOCKHOLDERS. Each stockholder shall designate to
the Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to him, and, if any stockholder shall fail to
designate such address, corporate notices may be served upon him by mail
directed to him at his post office address, if any, as the same appears on the
share record books of the Corporation or at his last known post-office address.
SECTION 5. LOST, DESTROYED AND MUTILATED CERTIFICATES. The holder of any
shares of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board may, in its
discretion, cause to be issued to him a new certificate or certificates for
shares, upon the surrender of the mutilated certificates or, in the case of loss
or destruction of the certificate, upon satisfactory proof of such loss or
destruction, and the Board may, in its discretion, require the owner of the lost
or destroyed certificate or his legal representative to give the Corporation a
bond in such sum and with such surety or sureties as it may direct to indemnify
the Corporation against any claim that may be made against it on account of the
alleged loss or destruction of any such certificate.
SECTION 6. REGULATIONS. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with these By-laws, concerning the issue,
transfer and registration of certificates for stock of the Corporation.
SECTION 7. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. In
order that the Corporation may determine the stockholders entitled to notice of
or to
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vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders entitled to notice of or to vote at a
meeting of the stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall be in the form of a
circle and shall bear the full name of the Corporation and the words and figures
"Corporate Seal Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 1. NATURE OF THE INDEMNITY.
a. ACTING, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF
THE CORPORATION. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation), by reason of the fact that he is or was or has agreed to
become a Director or officer of the Corporation, or any such Director or
officer who is or was serving or has agreed to serve at the request of the
Corporation as Director or officer of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf In
connection with such action, suit or proceeding and any appeal therefrom,
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect
to
12
<PAGE>
any criminal action or proceeding had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE
or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
b. ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF` THE
CORPORATION. The Corporation shall 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 he is or was or has agreed
to become a Director or officer of the Corporation or any such Director or
officer who 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
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; 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 Delaware 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 Delaware Court
of Chancery or such other court shall deem proper.
SECTION 2. SUCCESSFUL DEFENSE. To the extent that a Director or officer of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 hereof or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 1
hereof (unless ordered by a court) shall be made by the Corporation upon a
determination that indemnification of the Director or officer is proper in the
circumstances as set forth in Section 1 hereof. Any such determination shall be
made (1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
13
<PAGE>
SECTION 4. ADVANCE PAYMENT OF EXPENSES. Expenses incurred by a Director or
officer in defending a civil or criminal action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding; PROVIDED, that any such advance shall be conditioned upon the
Corporation's receipt of an undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article.
SECTION 5. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any
indemnification of a Director or officer of the Corporation under Section 1 and
2 or advance of costs, charges and expenses to a Director or officer under
Section 4 of this Article, shall be made promptly, and in any event within
thirty (30) days, upon the written request of the Director or officer. If a
determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to this Article is required, and the Corporation fails
to respond within sixty (60) days to a written request for indemnity, the
Corporation shall be deemed to have approved such request. If the Corporation
denies a written request for indemnity or advancement of expense, in whole or in
part, or if payment in full pursuant to such request is not made within sixty
(50) days the right to indemnification or advances as granted by this Article
shall be enforceable by the Director or officer in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
the advance of costs, charges and expenses under Section 4 of this Article where
the required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Section 1 of this
Article, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 1 of this Article, nor the fact that there has been
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel, and its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
SECTION 6. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director or officer who serves in any such capacity at any
time while these provisions as well as the relevant provisions of the Delaware
Corporation Law are in effect and any repeal or modification thereof shall not
affect any right or obligation then existing with respect to any state of facts
existing prior to or at the time of such repeal or modification or any action,
suit, or proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts. Such a "contract right" may not
be modified retroactively without the consent of such Director or officer.
14
<PAGE>
The indemnification provided by this Article IX will not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any other By-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action by the person being indemnified in his official
capacity and as to action in any other capacity while holding such office, and
shall continue as to a person who has ceased to be a Director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person. The Corporation may enter into a separate written agreement with any
Director, officer, employee or agent of the Corporation that expressly provides
for indemnification and reimbursement of such person to the full extent
permitted by this Article IX, on the same terms and conditions provided herein.
SECTION 7. INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was or has agreed to become a Director or
officer of the Corporation, or any such Director or officer who is or was
serving at the request of the Corporation as Director or officer of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him or on his behalf in any such
capacity, or arising out of his status as such, whether or not the Corporation
should have the power to indemnify him against such liability under the
provisions of this Article.
SECTION 8. SEVERABILITY. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director or officer of the
Corporation as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the fullest extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
SECTION 9. SUBSIDIARIES. Any person serving as a Director or officer of a
subsidiary of the Corporation shall be deemed for all purposes of this Article
IX to be so serving "at the request of the Corporation" and, accordingly, shall
be entitled to all of the indemnification rights provided by this Article IX to
persons who serve "at the request of the Corporation as Director or officer of
another corporation."
ARTICLE X
AMENDMENTS
Any by-law (including these By-laws) may be adopted, amended or repealed by
the vote of the holders of a majority of the shares then entitled to vote at an
election of directors or by consent of the stockholders pursuant to Section 10
of Article II, or by vote of the Board or by the directors' written consent
pursuant to Section 6 of Article III.
15
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MEDIMMUNE,
INC'S YEARLY REPORT ON FORM 10-K FOR THE THREE MONTHS ENDED MARCH 31, 2000 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FILING.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 104,294
<SECURITIES> 348,079
<RECEIVABLES> 70,763
<ALLOWANCES> 0
<INVENTORY> 25,282
<CURRENT-ASSETS> 554,609
<PP&E> 87,620
<DEPRECIATION> 0
<TOTAL-ASSETS> 846,225
<CURRENT-LIABILITIES> 118,990
<BONDS> 10,194
0
0
<COMMON> 696
<OTHER-SE> 714,336
<TOTAL-LIABILITY-AND-EQUITY> 846,225
<SALES> 195,776
<TOTAL-REVENUES> 198,341
<CGS> 45,028
<TOTAL-COSTS> 113,486
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 123
<INCOME-PRETAX> 89,914
<INCOME-TAX> 31,927
<INCOME-CONTINUING> 57,987
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 57,987
<EPS-BASIC> 0.84
<EPS-DILUTED> 0.80
</TABLE>
