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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 6, 2000
Registration No. 333- _____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HUMAN GENOME SCIENCES, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 22-3178468
(State or other jurisdiction of incorporation or (I.R.S. employer identification
organization) number)
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9410 KEY WEST AVENUE
ROCKVILLE, MARYLAND 20850
(301) 309-8504
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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WILLIAM A. HASELTINE PH.D.
CHIEF EXECUTIVE OFFICER
HUMAN GENOME SCIENCES, INC.
9410 KEY WEST AVENUE
ROCKVILLE, MARYLAND 20850
(301) 309-8504
(Name, address, including zip code and telephone number, including area code
of agent for service)
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COPIES TO:
R.W. Smith, Jr., Esquire
Piper Marbury Rudnick & Wolfe LLP
6225 Smith Avenue
Baltimore, Maryland 21209
(410) 580-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]___________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT OFFERING PRICE PER AGGREGATE AMOUNT OF
TO BE REGISTERED TO BE REGISTERED (1) SHARE (1) OFFERING PRICE (2)(3) REGISTRATION FEE
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Common Stock, par value $0.01 per share (3) (4)
Preferred Stock, par value $0.01 ...............
per share (3) ..................................
Debt Securities (3) ............................
Warrants (3) (5) ...............................
Total ...................... $1,000,000,000 $264,000
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(1) Not applicable pursuant to Form S-3 General Instruction II(D).
(2) These figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457(o). If any debt securities are issued
at an original issue discount, such greater principal amount as shall
result in an aggregate initial offering price equal to the amount to be
registered. If any debt securities are issued with a principal amount
denominated in a foreign currency or composite currency, such principal
amount as shall result in an aggregate initial offering price equivalent
thereto in U.S. dollars at the time of initial offering.
(3) In addition to the securities issued directly under this registration
statement, we are registering an indeterminate number of shares of common
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stock and preferred stock as may be issued upon conversion or exchange of
the securities issued directly under this registration statement. No
separate consideration will be received for any shares of common stock or
preferred stock so issued upon conversion or exchange.
(4) We will issue one right to purchase one share of our junior participating
preferred stock as a dividend on each share of our common stock being
registered. The rights initially are attached to and trade with the shares
of our common stock being registered. Value attributable to these rights,
if any, is reflected in the market price of our common stock.
(5) Includes warrants to purchase common stock, warrants to purchase preferred
stock and warrants to purchase debt securities.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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[TO BE INSERTED VERTICALLY ON LEFT MARGIN OF COVER OF PROSPECTUS]
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
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SUBJECT TO COMPLETION, DATED SEPTEMBER 6, 2000
$1,000,000,000
HUMAN GENOME SCIENCES, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants to Purchase Common Stock,
Preferred Stock or Debt Securities
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We will provide the specific terms for each of these securities in
supplements to this prospectus. You should read carefully this prospectus and
any supplement before you invest.
Our common stock is listed on the Nasdaq National Market under the symbol
"HGSI."
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INVESTING IN OUR SECURITIES INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 3.
THIS PROSPECTUS MAY NOT BE USED TO COMPLETE SALES OF SECURITIES UNLESS IT
IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2000.
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TABLE OF CONTENTS
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HUMAN GENOME SCIENCES ................................. 1 DESCRIPTION OF DEBT SECURITIES ............... 7
ABOUT THIS PROSPECTUS ................................. 2 DESCRIPTION OF WARRANTS ...................... 14
RATIO OF EARNINGS TO FIXED CHARGES .................... 2 PLAN OF DISTRIBUTION ......................... 17
RISK FACTORS .......................................... 3 LEGAL MATTERS ................................ 18
SPECIAL NOTE REGARDING FORWARD- EXPERTS ...................................... 18
LOOKING INFORMATION .............................. 3 WHERE YOU CAN FIND MORE
USE OF PROCEEDS ....................................... 3 INFORMATION ............................. 19
SECURITIES WE MAY OFFER ............................... 4 INCORPORATION BY REFERENCE ................... 19
DESCRIPTION OF COMMON STOCK AND ....................... 4
PREFERRED STOCK .................................. 4
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY ONLY BE USED WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE
ON THE DATE OF THIS DOCUMENT.
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HUMAN GENOME SCIENCES
We research and develop novel compounds for treating and diagnosing human
disease based on the identification and study of genes. The sequence in which
chemicals appear in a gene controls its biological function and effect. We use
automated high-speed technology to discover these sequences and generate a large
collection of partial human gene sequences. We believe that our collection
includes most of the genes responsible for producing proteins in the human body.
We also possess one of the largest databases of the genes of humans and
microbes, which we refer to as our "genomic database." We believe we have
created a broad base of product opportunities based on our genomic database.
We began our work in the genetics industry by identifying and cataloging
genes. We have since focused primarily on the research and development of
proteins for the treatment of human disease. We use our advanced computer system
to identify the most promising product candidates. We are able to analyze
partial gene sequences and identify the genes corresponding to partial and
full-length gene sequences and the proteins made by those genes. We have
isolated and characterized thousands of full-length genes and purified more than
375 potential proteins for the treatment of human disease. We have recently
expanded our use of antibodies and other technologies to increase the
opportunities created by our genomic database.
We have a two-pronged commercialization strategy:
- Product Development and Commercialization. We use our in-house
resources to research and develop proteins that can be produced on a
large scale and used to treat and diagnose disease. Generally, our
strategy is to develop potential products to a late stage of testing in
the laboratory or an early stage of studies in humans, and then to
collaborate with pharmaceutical or biotechnology companies for further
development and commercialization of our products.
- Corporate Collaborations. We increase our capabilities by collaborating
with pharmaceutical and biotechnology companies for the development and
commercialization of new products. We believe that these arrangements
enable us to focus our in-house resources on a select number of product
candidates while still exploiting the broader product opportunities
created by our genomic database.
We are a Delaware corporation. Our headquarters are located at 9410 Key
West Avenue, Rockville, Maryland 20850-3338. Our telephone number is (301)
309-8504.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may
offer, from time to time, in one or more offerings:
- shares of our common stock;
- shares of our preferred stock;
- our debt securities; or
- warrants to purchase our common stock, preferred stock or debt
securities.
The total offering price of these securities will not exceed
$1,000,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide you with
a prospectus supplement that will describe the specific amounts, prices and
terms of the securities we offer. The prospectus supplement also may add, update
or change information contained in this prospectus.
We may sell the securities to or through underwriters, dealers or agents or
directly to purchasers. We and our agents reserve the sole right to accept and
to reject in whole or in part any proposed purchase of securities. The
prospectus supplement, which we will provide to you each time we offer
securities, will provide the names of any underwriters, dealers or agents
involved in the sale of the securities, and any applicable fee, commission or
discount arrangements with them. See "Plan of Distribution."
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands)
We present below the ratio of our earnings to our fixed charges. Earnings
consist of net loss plus fixed charges. Fixed charges consist of interest
expense, including amortization of debt issuance costs, and that portion of
rental expense we believe to be representative of interest.
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FOR THE SIX MONTHS ENDED
JUNE 30,
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2000 1999
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Deficiency of earnings available to cover fixed charges ..................... $(77,665) $(14,276)
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FOR THE YEARS ENDED DECEMBER 31,
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1999 1998 1997 1996 1995
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Deficiency of earnings available to cover
fixed charges ......................... $(41,944) $(22,957) ($21,148) $(7,559) $(32,719)
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RISK FACTORS
Investing in our securities involves risk. Please see the risk factors
described in our Annual Report on Form 10-K for the year ended December 31,
1999, which is incorporated by reference in this prospectus. Before making an
investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference in this prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement and the documents we incorporate
by reference contain forward-looking statements. We generally identify
forward-looking statements using words like "believe," "intend," "expect,"
"may," "should," "plan," "project," "contemplate," "anticipate" or similar
statements. We base these statements on our beliefs as well as assumptions we
made using information currently available to us. Because these statements
reflect our current views concerning future events, these statements involve
risks, uncertainties and assumptions. Actual results may differ significantly
from the results discussed in these forward-looking statements. We do not
undertake to update our forward-looking statements or risk factors to reflect
future events or circumstances.
USE OF PROCEEDS
Except as described in any prospectus supplement, we currently intend to
use the net proceeds from the sale of the securities to initiate and expand
laboratory and human studies, to enhance ongoing research and
development efforts, to pursue patent coverage for genes and proteins, to
operate and expand our process development and manufacturing facility, to
acquire complementary products or companies and for general corporate purposes.
When we offer a particular series of securities, the prospectus supplement
relating to that offering will describe the intended use of the net proceeds
received from that offering.
The actual amount of net proceeds we spend on a particular use will depend
on many factors, including:
- our future revenue growth, if any;
- our future capital expenditures; and
- the amount of cash required by our operations.
Many of these factors are beyond our control. Therefore, we will retain
broad discretion in the use of the net proceeds.
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SECURITIES WE MAY OFFER
We may offer shares of common stock, shares of preferred stock, debt
securities or warrants to purchase common stock, preferred stock or debt
securities, or any combination of the foregoing, either individually or as units
consisting of one or more securities. We may offer up to $1,000,000,000 of
securities under this prospectus. If securities are offered as units, we will
describe the terms of the units in a prospectus supplement.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following is a description of the common stock and preferred stock we
may offer under this prospectus. While the terms we have summarized below will
apply generally to any future common stock or preferred stock that we may offer,
we will describe the particular terms of these securities in more detail in the
applicable prospectus supplement.
COMMON STOCK
We are authorized to issue 250,000,000 shares of common stock. Each
stockholder of record is entitled to one vote for each outstanding share of our
common stock owned by that stockholder on every matter properly submitted to the
stockholders for their vote. After satisfaction of the dividend rights of
holders of any preferred stock, holders of common stock are entitled to any
dividend declared by our board out of funds legally available for that purpose.
After the payment of liquidation preferences to holders of any preferred stock,
holders of common stock are entitled to receive, on a pro rata basis, all our
remaining assets available for distribution to stockholders in the event of our
liquidation, dissolution or winding up. Holders of common stock do not have any
preemptive right to become subscribers or purchasers of additional shares of any
class of our capital stock. The rights, preferences and privileges of holders of
common stock are subject to, and may be injured by, the rights of the holders of
shares of any series of preferred stock that we may designate and issue in the
future.
PREFERRED STOCK
We are authorized to issue, without stockholder approval, up to 20,000,000
shares of preferred stock having rights senior to those of our common stock. Our
board is authorized to issue the preferred stock in one or more series and to
fix and designate the rights, preferences, privileges and restrictions of the
preferred stock, including:
- dividend rights;
- conversion rights;
- voting rights;
- redemption rights and terms of redemption; and
- liquidation preferences.
Our board may fix the number of shares constituting any series and the
designations of these series. We have issued rights that are in some cases
exercisable for shares of our junior participating preferred stock. See "--
Rights Agreement."
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The rights, preferences, privileges and restrictions of the preferred stock
of each series will be fixed by a certificate of designation relating to each
series. The prospectus supplement relating to each series will specify the terms
of the preferred stock, including:
- the maximum number of shares in the series and the distinctive
designation;
- the terms on which dividends will be paid, if any;
- the terms on which the shares may be redeemed, if at all;
- the liquidation preference, if any;
- the terms of any retirement or sinking fund for the purchase or
redemption of the shares of the series;
- the terms and conditions, if any, on which the shares of the series
will be convertible into, or exchangeable for, shares of any other
class or classes of capital stock;
- the voting rights, if any, on the shares of the series; and
- any or all other preferences and relative, participating, operational
or other special rights or qualifications, limitations or restrictions
of the shares.
We will describe the specific terms of a particular series of preferred
stock in the prospectus supplement relating to that series. The description of
preferred stock above and the description of the terms of a particular series of
preferred stock in the prospectus supplement are not complete. You should refer
to the applicable certificate of designation for complete information. The
prospectus supplement will contain a description of U.S. federal income tax
consequences relating to the preferred stock.
Our issuance of preferred stock may have the effect of delaying or
preventing a change in control. Our issuance of preferred stock could decrease
the amount of earnings and assets available for distribution to the holders of
common stock or could adversely affect the rights and powers, including voting
rights, of the holders of common stock. The issuance of preferred stock could
have the effect of decreasing the market price of our common stock.
POSSIBLE ANTI-TAKEOVER EFFECTS
Our certificate of incorporation and bylaws contain provisions that are
intended to enhance the likelihood of continuity and stability in the
composition of our board and in the policies formulated by our board. In
addition, provisions of Delaware law may hinder or delay an attempted takeover
of our company other than through negotiation with our board. These provisions
could discourage attempts to acquire us or remove our management even if some or
a majority of our stockholders believe this action to be in their best interest,
including attempts that might result in our stockholders' receiving a premium
over the market price of their shares of common stock.
Classified Board of Directors; Removal, Vacancies. Our certificate of
incorporation provides that our board will be divided into three classes of
directors serving staggered three-year terms. The classification of directors
has the effect of making it more difficult for stockholders to change the
composition of our board in a relatively short period of time. Our certificate
of incorporation provides that directors may be removed only for cause. In
addition, vacancies and newly created directorships resulting from any increase
in the size of our board may be filled only by the affirmative vote of a
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majority of the directors then in office, a quorum or by a sole remaining
director. These provisions would prevent stockholders from removing incumbent
directors without cause and filling the resulting vacancies with their own
nominees.
Special Stockholders' Meetings. Our certificate of incorporation and bylaws
provide that special meetings of stockholders, unless otherwise required by
statute, may be called only:
- by the board or by our chairman or president; or
- by the holders of at least majority of our securities outstanding and
entitled to vote generally in the election of directors.
Section 203 of Delaware Law. In addition to these provisions of our
certificate of incorporation and bylaws, we are subject to the provisions of
Section 203 of the Delaware General Corporation Law. Section 203 prohibits
publicly held Delaware corporations from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Generally, an "interested
stockholder" is a person who, together with affiliates and associates, owns, or
within three years did own, 15% or more of a corporation's voting stock. These
provisions could have the effect of delaying, deferring or preventing a change
in control of our company or reducing the price that certain investors might be
willing to pay in the future for shares of our common stock.
RIGHTS AGREEMENT
Our board has adopted a rights plan. As a result, we issued one preferred
share purchase right for each outstanding share of common stock. One preferred
share purchase right will be issued for each additional share of common stock
that we issue. The rights become exercisable ten days after a person or group
acquires 15%, or 20% in the case of some of our stockholders, or more of our
outstanding common stock or commences or announces a tender or exchange offer
which would result in such ownership. Each right that becomes exercisable
entitles the registered holder to purchase one one-thousandth of a share of our
junior participating preferred stock, par value $.01 per share, at a price of
$250.00 per one one-thousandth of a share, subject to adjustment.
If any person acquires 15%, or 20% in the case of some of our stockholders,
or more of our outstanding common stock, each right not owned by that person
would permit the purchase, for the exercise price, of our common stock having a
market value of twice the exercise price. In addition, if, after the rights
become exercisable, we were to be acquired through a merger or other business
combination transaction or 50% or more of our assets or earning power was sold,
each right would permit the holder to purchase, for the exercise price, common
stock of the acquiring company having a market value of twice the exercise
price.
The rights expire on May 20, 2008, unless earlier redeemed or exchanged by
us. The purchase price payable and the shares of preferred stock issuable upon
exercise of the rights are subject to adjustment as described in the rights
agreement. In addition, our board retains the authority to redeem the rights, at
$0.001 per right, or replace the rights with new rights at any time. Our board
may not redeem the rights after a person or group acquires 15% or more of our
outstanding common stock.
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Shares of this preferred stock, when issued upon exercise of the rights,
will be non-redeemable and will rank junior to all series of any other class of
preferred stock. Each share of this preferred stock will be entitled to a
cumulative preferential quarterly dividend payment equal to the greater of
$250.00 per share or 1,000 times the dividend declared per share of common
stock. In the event of liquidation, the holders of shares of this preferred
stock will be entitled to a preferential liquidation payment equal to the
greater of $1,000 per share or 1,000 times the payment made per share of common
stock. Each share of this preferred stock will entitle the holder to 1,000
votes, voting together with the common stock. Finally, in the event of any
merger, consolidation or other transaction in which common stock is exchanged,
each share of this preferred stock will be entitled to receive 1,000 times the
amount received per share of common stock. These rights are subject to
anti-dilution adjustments.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company, New York, New York.
DESCRIPTION OF DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated debt
securities. Debt securities are unsecured obligations to repay advanced funds.
We may issue the senior debt securities and the subordinated debt securities
under separate indentures between us, as issuer, and the trustee or trustees
identified in the prospectus supplement. The form for each type of indenture is
filed as an exhibit to the registration statement of which this prospectus is a
part.
The prospectus supplement will describe the particular terms of any debt
securities we may offer. The following summaries of the debt securities and the
indentures are not complete. We urge you to read the indentures and the
description of the debt securities included in the prospectus supplement.
GENERAL
We may issue an unlimited principal amount of debt securities in separate
series. We may specify a maximum aggregate principal amount for the debt
securities of any series. The debt securities will have terms that are
consistent with the indentures. Unless the prospectus supplement indicates
otherwise, senior debt securities will be unsecured and unsubordinated
obligations and will rank equal with all our other unsecured and unsubordinated
debt. Subordinated debt securities will be paid only if all payments due under
our senior indebtedness, including any outstanding senior debt securities, have
been made.
The indentures might not limit the amount of other debt that we may incur
and might not contain financial or similar restrictive covenants. The indentures
might not contain any provision to protect holders of debt securities against a
sudden or dramatic decline in our ability to pay our debt.
The prospectus supplement will describe the debt securities and the price
or prices at which we will offer the debt securities. The description will
include:
- the title and form of the debt securities;
- any limit on the aggregate principal amount of the debt securities or
the series of which they are a part;
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- the person to whom any interest on a debt security of the series will
be paid;
- the date or dates on which we must repay the principal;
- the rate or rates at which the debt securities will bear interest, if
any, the date or dates from which interest will accrue, and the dates
on which we must pay interest;
- if applicable, the duration and terms of the right to extend interest
payment periods;
- the place or places where we must pay the principal and any premium or
interest on the debt securities;
- the terms and conditions on which we may redeem any debt security, if
at all;
- any obligation to redeem or purchase any debt securities, and the
terms and conditions on which we must do so;
- the denominations in which we may issue the debt securities;
- the manner in which we will determine the amount of principal of or
any premium or interest on the debt securities;
- the currency in which we will pay the principal of and any premium or
interest on the debt securities;
- the principal amount of the debt securities that we will pay upon
declaration of acceleration of their maturity;
- the amount that will be deemed to be the principal amount for any
purpose, including the principal amount that will be due and payable
upon any maturity or that will be deemed to be outstanding as of any
date;
- if applicable, that the debt securities are defeasible and the terms
of such defeasance;
- if applicable, the terms of any right to convert debt securities into,
or exchange debt securities for, shares of common stock or other
securities or property;
- whether we will issue the debt securities in the form of one or more
global securities and, if so, the respective depositaries for the
global securities and the terms of the global securities;
- the subordination provisions that will apply to any subordinated debt
securities;
- any addition to or change in the events of default applicable to the
debt securities and any change in the right of the trustee or the
holders to declare the principal amount of any of the debt securities
due and payable; and
- any addition to or change in the covenants in the indentures.
We may sell the debt securities at a substantial discount below their
stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue
discount in the prospectus supplement. An "original issue discount security" is
any debt security sold for less than its face value, and which provides that the
holder cannot receive the full face value if maturity is accelerated. The
prospectus supplement relating to any original issue discount securities will
describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default. In addition, we will describe U.S.
federal income tax or other
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considerations applicable to any debt securities that are denominated in a
currency or unit other than U.S. dollars in the prospectus supplement.
CONVERSION AND EXCHANGE RIGHTS
The prospectus supplement will describe, if applicable, the terms on which
you may convert debt securities into or exchange them for common stock or other
securities or property. The conversion or exchange may be mandatory or may be at
your option. The prospectus supplement will describe how the number of shares of
common stock or other securities or property to be received upon conversion or
exchange would be calculated.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless the prospectus supplement indicates otherwise, the following
provisions will apply to the subordinated debt securities. The indebtedness
underlying the subordinated debt securities will be payable only if all payments
due under our senior indebtedness, including any outstanding senior debt
securities, have been made. If we distribute our assets to creditors upon any
dissolution, winding-up, liquidation or reorganization or in bankruptcy,
insolvency, receivership or similar proceedings, we must first pay all amounts
due or to become due on all senior indebtedness before we pay the principal of,
or any premium or interest on, the subordinated debt securities. In the event
the subordinated debt securities are accelerated because of an event of default,
we may not make any payment on the subordinated debt securities until we have
paid all senior indebtedness or the acceleration is rescinded. If the payment of
subordinated debt securities accelerates because of an event of default, we must
promptly notify holders of senior indebtedness of the acceleration.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors. The indenture
for subordinated debt securities may not limit our ability to incur additional
senior indebtedness.
FORM, EXCHANGE AND TRANSFER
We will issue debt securities only in fully registered form, without
coupons, and, unless the prospectus supplement indicates otherwise, only in
denominations of $1,000 and integral multiples thereof. The holder of a debt
security may elect, subject to the terms of the indentures and the limitations
applicable to global securities, to exchange them for other debt securities of
the same series of any authorized denomination and of similar terms and
aggregate principal amount.
Holders of debt securities may present them for exchange as provided above
or for registration of transfer, duly endorsed or with the form of transfer duly
executed, at the office of the transfer agent we designate for that purpose. We
will not impose a service charge for any registration of transfer or exchange of
debt securities, but we may require a payment sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange.
We will name the transfer agent in the prospectus supplement. We may designate
additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, but we
must maintain a transfer agent in each place in which we will pay on debt
securities.
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<PAGE> 16
If we redeem the debt securities, we will not be required to issue,
register the transfer of or exchange any debt security during a specified period
prior to mailing a notice of redemption. We are not required to register the
transfer of or exchange any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
GLOBAL SECURITIES
The debt securities may be represented, in whole or in part, by one or more
global securities that will have an aggregate principal amount equal to that of
all debt securities of that series. Each global security will be registered in
the name of a depositary identified in the prospectus supplement. We will
deposit the global security with the depositary or a custodian, and the global
security will bear a legend regarding the restrictions on exchanges and
registration of transfer.
No global security may be exchanged in whole or in part for debt securities
registered, and no transfer of a global security in whole or in part may be
registered, in the name of any person other than the depositary or any nominee
or successor of the depositary unless:
- the depositary is unwilling or unable to continue as depositary; or
- the depository is no longer in good standing under the Exchange Act or
other applicable statute or regulation.
The depositary will determine how all securities issued in exchange for a
global security will be registered.
As long as the depositary or its nominee is the registered holder of a
global security, we will consider the depositary or the nominee to be the sole
owner and holder of the global security and the underlying debt securities.
Except as stated above, owners of beneficial interests in a global security will
not be entitled to have the global security or any debt security registered in
their names, will not receive physical delivery of certificated debt securities
and will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal, premium and
interest on a global security to the depositary or its nominee. The laws of some
jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from
transferring your beneficial interests in a global security.
Only institutions that have accounts with the depositary or its nominee and
persons that hold beneficial interests through the depositary or its nominee may
own beneficial interests in a global security. The depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of debt securities represented by the global security to the accounts of
its participants. Ownership of beneficial interests in a global security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the depositary or any such participant.
The policies and procedures of the depositary may govern payments,
transfers, exchanges and others matters relating to beneficial interests in a
global security. We and the trustee will assume no responsibility or liability
for any aspect of the depositary's or any participant's records relating to, or
for payments made on account of, beneficial interests in a global security.
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<PAGE> 17
PAYMENT AND PAYING AGENTS
Unless the prospectus supplement indicates otherwise, we will pay principal
and any premium or interest on a debt security to the person in whose name the
debt security is registered at the close of business on the regular record date
for such interest.
Unless the prospectus supplement indicates otherwise, we will pay principal
and any premium or interest on the debt securities at the office of our
designated paying agent. Unless the prospectus supplement indicates otherwise,
the corporate trust office of the trustee will be the paying agent for the debt
securities.
Any other paying agents we designate for the debt securities of a
particular series will be named in the prospectus supplement. We may designate
additional paying agents, rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts, but we must maintain
a paying agent in each place of payment for the debt securities.
The paying agent will return to us all money we pay to it for the payment
of the principal, premium or interest on any debt security that remains
unclaimed for a specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under the terms of the indentures, so long as any securities remain
outstanding, we may not consolidate or enter into a share exchange with or merge
into any other person, in a transaction in which we are not the surviving
corporation, or sell, convey, transfer or lease our properties and assets
substantially as an entirety to any person, unless:
- the successor assumes our obligations under the debt securities and
the indentures; and
- we meet the other conditions described in the indentures.
EVENTS OF DEFAULT
Each of the following will constitute an event of default under each
indenture:
- failure to pay the principal of or any premium on any debt security
when due;
- failure to pay any interest on any debt security when due, for more
than a specified number of days past the due date;
- failure to deposit any sinking fund payment when due;
- failure to perform any covenant or agreement in the indenture that
continues for a specified number of days after written notice has been
given by the trustee or the holders of a specified percentage in
aggregate principal amount of the debt securities of that series;
- certain events in bankruptcy, insolvency or reorganization; and
- any other event of default specified in the prospectus supplement.
If an event of default occurs and continues, both the trustee and holders
of a specified percentage in aggregate principal amount of the outstanding
securities of that series may declare the principal amount
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of the debt securities of that series to be immediately due and payable. The
holders of a majority in aggregate principal amount of the outstanding
securities of that series may, under certain circumstances, rescind and annul
the acceleration if all events of default, other than the nonpayment of
accelerated principal, have been cured or waived.
Except for certain duties in case of an event of default, the trustee will
not be obligated to exercise any of its rights or powers at the request or
direction of any of the holders, unless the holders have offered the trustee
reasonable indemnity. If they provide this indemnification, the holders of a
majority in aggregate principal amount of the outstanding securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series.
No holder of a debt security of any series may institute any proceeding
with respect to the indentures, or for the appointment of a receiver or a
trustee, or for any other remedy, unless:
- the holder has previously given the trustee written notice of a
continuing event of default;
- the holders of a specified percentage in aggregate principal amount of
the outstanding securities of that series have made a written request
upon the trustee, and have offered reasonable indemnity to the
trustee, to institute the proceeding; and
- the trustee has failed to institute the proceeding for a specified
period of time after its receipt of the notification; and
- the trustee has not received a direction inconsistent with the request
within a specified number of days.
MODIFICATION AND WAIVER
We and the trustee may change an indenture without the consent of any
holders with respect to specific matters, including:
- to fix any ambiguity, defect or inconsistency in the indenture; and
- to change anything that does not materially adversely affect the
interests of any holder of debt securities of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series that is affected. However, we and the trustee may
only make the following changes with the consent of the holder of any
outstanding debt securities affected:
- extending the fixed maturity of the series of notes;
- reducing the principal amount, reducing the rate of or extending the
time of payment of interest, or any premium payable upon the
redemption, of any debt securities; or
- reducing the percentage of debt securities the holders of which are
required to consent to any amendment.
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive any past default under the indenture with
respect to debt securities of that series, except a default
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<PAGE> 19
in the payment of principal, premium or interest on any debt security of that
series or in respect of a covenant or provision of the indenture that cannot be
amended without each holder's consent.
Except in certain limited circumstances, we may set any day as a record
date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or
other action under the indentures. In certain limited circumstances, the trustee
may set a record date. To be effective, the action must be taken by holders of
the requisite principal amount of such debt securities within a specified period
following the record date.
DEFEASANCE
To the extent stated in the prospectus supplement, we may elect to apply
the provisions in the indentures relating to defeasance and discharge of
indebtedness, or to defeasance of certain restrictive covenants, to the debt
securities of any series. The indentures provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, known as legal
defeasance, other than our obligation:
- to maintain a registrar and paying agents and hold moneys for payment
in trust;
- to register the transfer or exchange of the notes; and
- to replace mutilated, destroyed, lost or stolen notes.
In addition, we may terminate our obligation to comply with any restrictive
covenants under the debt securities of any series or the applicable indenture,
known as covenant defeasance.
We may exercise our legal defeasance option even if we have previously
exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the notes may not be accelerated because of the occurrence of
events of default.
To exercise either defeasance option as to debt securities of any series,
we must irrevocably deposit in trust with the trustee money and/or obligations
backed by the full faith and credit of the U.S. that will provide money in an
amount sufficient in the written opinion of a nationally recognized firm of
independent public accountants to pay the principal of, premium, if any, and
each installment of interest on the debt securities. We may only establish this
trust if, among other things:
- no event of default shall have occurred or be continuing;
- in the case of legal defeasance, we have delivered to the trustee an
opinion of counsel to the effect that we have received from, or there
has been published by, the IRS a ruling or there has been a change in
law, which in the opinion of our counsel, provides that holders of the
debt securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
- in the case of covenant defeasance, we have delivered to the trustee
an opinion of counsel to the effect that the holders of the debt
securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and
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<PAGE> 20
- we satisfy other customary conditions precedent described in the
applicable indenture.
NOTICES
We will mail notices to holders of debt securities as indicated in the
prospectus supplement.
TITLE
We may treat the person in whose name a debt security is registered as the
absolute owner, whether or not such debt security may be overdue, for the
purpose of making payment and for all other purposes.
GOVERNING LAW
The indentures and the debt securities will be governed by and construed in
accordance with the laws of the state of New York.
DESCRIPTION OF WARRANTS
WARRANT TO PURCHASE COMMON STOCK OR PREFERRED STOCK
The following summarizes the terms of common stock warrants and preferred
stock warrants we may issue. This description is subject to the detailed
provisions of a stock warrant agreement that we will enter into with a stock
warrant agent we select at the time of issue.
General. We may issue stock warrants evidenced by stock warrant
certificates under a stock warrant agreement independently or together with any
securities we offer by any prospectus supplement. If we offer stock warrants,
the prospectus supplement will describe the terms of the stock warrants,
including:
- the offering price, if any;
- the number of shares of common or preferred stock purchasable upon
exercise of one stock warrant and the initial price at which the
shares may be purchased upon exercise;
- if applicable, the designation and terms of the preferred stock
purchasable upon exercise of the stock warrants;
- the dates on which the right to exercise the stock warrants begins and
expires;
- U.S. federal income tax consequences;
- call provisions, if any;
- the currencies in which the offering price and exercise price are
payable; and
- if applicable, any antidilution provisions.
Exercise of Stock Warrants. You may exercise stock warrants by surrendering
to the stock warrant agent the stock warrant certificate, which indicates your
election to exercise all or a portion of the stock warrants evidenced by the
certificate. Surrendered stock warrant certificates must be accompanied by
payment of the exercise price in the form of cash or a check. The stock warrant
agent will deliver certificates evidencing duly exercised stock warrants to the
transfer agent. Upon receipt of the
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<PAGE> 21
certificates, the transfer agent will deliver a certificate representing the
number of shares of common stock or preferred stock purchased. If you exercise
fewer than all the stock warrants evidenced by any certificate, the stock
warrant agent will deliver a new stock warrant certificate representing the
unexercised stock warrants.
No Rights as Stockholders. Holders of stock warrants are not entitled to
vote, to consent, to receive dividends or to receive notice as stockholders with
respect to any meeting of stockholders, or to exercise any rights whatsoever as
stockholders.
WARRANTS TO PURCHASE DEBT SECURITIES
The following summarizes the terms of the debt warrants we may offer. This
description is subject to the detailed provisions of a debt warrant agreement
that we will enter into with a debt warrant agent we select at the time of
issue.
General. We may issue debt warrants evidenced by debt warrant certificates
independently or together with any securities offered by any prospectus
supplement. If we offer debt warrants, the prospectus supplement will describe
the terms of the warrants, including:
- the offering price, if any;
- the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the warrants and the terms of
the indenture under which the debt securities will be issued;
- if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of debt warrants
issued with each debt security;
- if applicable, the date on and after which the debt warrants and any
related securities will be separately transferable;
- the principal amount of debt securities purchasable upon exercise of
one debt warrant and the price at which the principal amount of debt
securities may be purchased upon exercise;
- the dates on which the right to exercise the debt warrants begins and
expires;
- U.S. federal income tax consequences;
- whether the warrants represented by the debt warrant certificates will
be issued in registered or bearer form;
- the currencies in which the offering price and exercise price are
payable; and
- if applicable, any antidilution provisions.
You may exchange debt warrant certificates for new debt warrant
certificates of different denominations and may present debt warrant
certificates for registration of transfer at the corporate trust office of the
debt warrant agent, which will be listed in the prospectus supplement.
Warrantholders do not have any of the rights of holders of debt securities,
except to the extent that the consent of warrantholders may be required for
certain modifications of the terms of an indenture or form of the debt security,
as the case may be, and the series of debt securities issuable upon exercise of
the debt warrants. In addition, warrantholders are not entitled to payments of
principal of and interest, if any, on the debt securities.
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<PAGE> 22
Exercise of Debt Warrants. You may exercise debt warrants by surrendering
the debt warrant certificate at the corporate trust office of the debt warrant
agent, with payment in full of the exercise price. Upon the exercise of debt
warrants, the debt warrant agent will, as soon as practicable, deliver the debt
securities in authorized denominations in accordance with your instructions and
at your sole cost and risk. If less than all the debt warrants evidenced by the
debt warrant certificate are exercised, the agent will issue a new debt warrant
certificate for the remaining amount of debt warrants.
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PLAN OF DISTRIBUTION
We may sell the securities through underwriters or dealers, through agents,
or directly to one or more purchasers. The prospectus supplement will describe
the terms of the offering of the securities, including:
- the name or names of any underwriters, if any;
- the purchase price of the securities and the proceeds we will receive
from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers;
and
- any securities exchange or market on which the securities may be
listed.
Only underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for
their own account and may resell them from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at
the time of sale. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Subject to certain conditions, the underwriters will be obligated to
purchase all the securities of the series offered by the prospectus supplement.
Any public offering price and any discounts or concessions allowed or reallowed
or paid to dealers may change from time to time.
We may sell securities directly or through agents we designate from time to
time. We will name any agent involved in the offering and sale of securities and
we will describe any commissions we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states otherwise, our agent will
act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against certain
civil liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents or underwriters may make
with respect to such liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary course of
business.
All securities we offer other than common stock will be new issues of
securities with no established trading market. Any underwriters may make a
market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
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LEGAL MATTERS
Piper Marbury Rudnick & Wolfe LLP, Baltimore, Maryland, will provide us
with an opinion as to legal matters in connection with the securities we are
offering.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements included in our annual report on Form 10-K for the year ended
December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in this registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC under the Securities Act a registration
statement on Form S-3. This prospectus does not contain all of the information
contained in the registration statement, certain portions of which have been
omitted under the rules of the SEC. We also file annual, quarterly and special
reports, proxy statements and other information with the SEC under the Exchange
Act. The Exchange Act file number for our SEC filings is 000-22962. You may read
and copy the registration statement and any other document we file at the
following SEC public reference rooms:
<TABLE>
<S> <C> <C>
Judiciary Plaza 500 West Madison Street 7 World Trade Center
450 Fifth Street, N.W. 14th Floor Suite 1300
Rm. 1024 Chicago, Illinois 60661 New York, New York 10048
Washington, D.C. 20549
</TABLE>
You may obtain information on the operation of the public reference room in
Washington, D.C. by calling the SEC at 1-800-SEC-0330. We file information
electronically with the SEC. Our SEC filings are available from the SEC's
Internet site at http://www.sec.gov, which contains reports, proxy and
information statements and other information regarding issuers that file
electronically. Our common stock is listed on the Nasdaq National Market under
the symbol "HGSI." You may read and copy our SEC filings and other information
at the offices of Nasdaq Operations, 1735 K Street, N.W., Washington, D.C.
20006.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the documents we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information in documents that we file later
with the SEC will automatically update and supersede information in this
prospectus. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act:
- Annual Report on Form 10-K for the year ended December 31, 1999;
- Quarterly Reports on Form 10-Q for the three months ended March 31,
2000 and June 30, 2000; and
- Description of Common Stock contained in Form 8-A filed pursuant to
the Exchange Act.
We will provide a copy of the documents we incorporate by reference, at no
cost, to any person who receives this prospectus. To request a copy of any or
all of these documents, you should write or telephone us at: 9410 Key West
Avenue, Rockville, Maryland 20850, (301) 309-8504, Attention: Senior Vice
President and Chief Financial Officer.
----------
We furnish our stockholders with annual reports that contain audited
financial statements and quarterly reports for the first three quarters of each
year that contain unaudited interim financial information.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be incurred in
connection with the registration of the securities being registered hereby, all
of which will be borne by Human Genome Sciences, Inc. All of the amounts shown
are estimated except the SEC registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee .................... $264,000
Transfer agent's and trustee's fees and expenses ........................ 25,000
Printing and engraving expenses ......................................... 50,000
Legal fees and expenses ................................................. 50,000
Accounting fees and expenses ............................................ 25,000
Miscellaneous expenses .................................................. 86,000
-------------
Total .............................................................. $500,000
=============
</TABLE>
15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law ("Section 145") permits
indemnification of directors, officers, agents and controlling persons of a
corporation under certain conditions and subject to certain limitations. The
Registrant's Bylaws include provisions to require the Registrant to indemnify
its directors and officers to the fullest extent permitted by Section 145,
including circumstances in which indemnification is otherwise discretionary.
Section 145 also empowers the Registrant to purchase and maintain insurance that
protects its officers, directors, employees and agents against any liabilities
incurred in connection with their service in such positions.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
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<PAGE> 27
16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1.1 Form of Underwriting Agreement Basic Terms
3.1* Certificate of Incorporation of the Registrant
3.2** Bylaws of the Registrant
4.1*** Rights Agreement between the Registrant and American Stock Transfer & Trust Company, as Rights
Agent, dated as of May 20, 1998
4.2 Form of Common Stock Certificate
4.3 Form of Senior Indenture
4.4 Form of Subordinated Indenture
4.5+ Form of Warrant
4.6+ Form of Certificate of Designation with respect to Preferred Stock
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Piper Marbury Rudnick & Wolfe LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
25.1+ Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended
</TABLE>
--------------
+ To be filed by amendment or as an exhibit to a report pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act.
* Incorporated by reference to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1993, Annual Report on Form 10-K/A
for the year ended December 31, 1997, and Current Report on Form 8-K
filed with the SEC on December 16, 1999.
** Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the three months ended June 30, 2000.
*** Incorporated by reference to the Registrant's Current Report on Form
8-K filed with the SEC on May 28, 1998.
17. 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;
(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
II-2
<PAGE> 28
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum
aggregate offering price, set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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
registration statement.
provided, however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered herein, 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) or Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rockville, State of Maryland, on the 6th day of
September, 2000.
HUMAN GENOME SCIENCES, INC.
By: /s/ William A. Haseltine, Ph.D.
--------------------------------------
William A. Haseltine, Ph.D.
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
in so signing also makes, constitutes and appoints William A. Haseltine, Ph.D.
and Craig Rosen, Ph.D., and each of them acting alone, his or her true and
lawful attorney-in-fact, with full power of substitution, for him or her in any
and all capacities, to execute and cause to be filed with the Securities and
Exchange Commission any and all amendments and post-effective amendments to this
Registration Statement, with exhibits thereto and other documents in connection
therewith, and hereby ratifies and confirms all that said attorney-in-fact or
his substitute or substitutes may do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/s/ William A. Haseltine, Ph.D Chairman of the Board, Chief September 6, 2000
---------------------------------- Executive Officer and Director
William A. Haseltine, Ph.D. (Principal Executive Officer)
/s/ Craig Rosen, Ph.D. Senior Vice President of Research September 6, 2000
---------------------------------- and Development and Director
Craig Rosen, Ph.D.
/s/ Steven C. Mayer Senior Vice President and Chief September 6, 2000
--------------------------------- Financial Officer (Principal
Steven C. Mayer Accounting and Financial Officer)
/s/ Jurgen Drews, M.D. Director September 6, 2000
---------------------------------
Jurgen Drews, M.D.
/s/ Beverly Sills Greenough Director September 6, 2000
---------------------------------
Beverly Sills Greenough
</TABLE>
II-4
<PAGE> 30
<TABLE>
<S> <C> <C>
/s/ Robert D. Hormats Director September 6, 2000
---------------------------------
Robert D. Hormats
/s/ Max Link, Ph.D. Director September 6, 2000
---------------------------------
Max Link, Ph.D.
/s/ Alan G. Spoon Director September 6, 2000
---------------------------------
Alan G. Spoon
/s/ Laura D'Andrea Tyson, Ph.D Director September 6, 2000
---------------------------------
Laura D'Andrea Tyson, Ph.D
/s/ James B. Wyngaarden, M.D. Director September 6, 2000
---------------------------------
James B. Wyngaarden, M.D.
</TABLE>
II-5
<PAGE> 31
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
1.1 Form of Underwriting Agreement Basic Terms
3.1* Certificate of Incorporation of the Registrant
3.2** Bylaws of the Registrant
4.1*** Rights Agreement between the Registrant and American Stock Transfer & Trust Company, as Rights
Agent, dated as of May 20, 1998
4.2 Form of Common Stock Certificate
4.3 Form of Senior Indenture
4.4 Form of Subordinated Indenture
4.5+ Form of Warrant
4.6+ Form of Certificate of Designation with respect to Preferred Stock
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Piper Marbury Rudnick & Wolfe LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
25.1+ Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended
</TABLE>
--------------
+ To be filed by amendment or as an exhibit to a report pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act.
* Incorporated by reference to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1993, Annual Report on Form 10-K/A
for the year ended December 31, 1997, and Current Report on Form 8-K
filed with the SEC on December 16, 1999.
** Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the three months ended June 30, 2000.
*** Incorporated by reference to the Registrant's Current Report on Form
8-K filed with the SEC on May 28, 1998.
II-6
