<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 19, 2000
REGISTRATION NO. 333-45272
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
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)
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)
DELAWARE
(STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION)
22-3178468
(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
------------------------
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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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF SECURITIES AMOUNT OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED(1) PER SHARE(1) PRICE(2)(3) REGISTRATION FEE(6)
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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 $0
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</TABLE>
(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
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.
(6) A registration fee of $264,000 was previously paid in connection with this
registration statement.
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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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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.
SUBJECT TO COMPLETION, DATED OCTOBER 19, 2000
$1,000,000,000
HUMAN GENOME SCIENCES, INC.
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Common Stock
Preferred Stock
Debt Securities
Warrants to Purchase Common Stock,
Preferred Stock or Debt Securities
----------------------
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." No trading market currently exists for any of the other securities we
are registering.
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INVESTING IN OUR SECURITIES INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 1.
THIS PROSPECTUS MAY NOT BE USED TO COMPLETE SALES OF SECURITIES UNLESS IT
IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
----------------------
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.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RISK FACTORS................................................ 1
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION.......... 1
HUMAN GENOME SCIENCES....................................... 2
ABOUT THIS PROSPECTUS....................................... 3
RATIO OF EARNINGS TO FIXED CHARGES.......................... 3
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS.............. 4
USE OF PROCEEDS............................................. 4
SECURITIES WE MAY OFFER..................................... 5
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK............. 5
DESCRIPTION OF DEBT SECURITIES.............................. 8
DESCRIPTION OF WARRANTS..................................... 15
PLAN OF DISTRIBUTION........................................ 17
LEGAL MATTERS............................................... 18
EXPERTS..................................................... 18
WHERE YOU CAN FIND MORE INFORMATION......................... 18
INCORPORATION BY REFERENCE.................................. 19
</TABLE>
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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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RISK FACTORS
Investing in our securities involves risk. Please see the risk factors
described under the caption "Factors That May Affect Our Business" beginning on
page 20 of 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.
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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.
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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. We may also add, update or change information
contained in this prospectus with the prospectus supplement.
We will 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. We 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.
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED
JUNE 30,
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2000 1999
---------- ----------
<S> <C> <C>
Deficiency of earnings available to cover fixed
charges................................................ $(77,665) $(14,276)
</TABLE>
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
---------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- -------- ------- --------
<S> <C> <C> <C> <C> <C>
Deficiency of earnings
available to cover fixed
charges..................... $(41,944) $(22,957) ($21,148) $(7,559) $(32,719)
</TABLE>
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IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In December 1999, the SEC issued Staff Accounting Bulletin 101, "Revenue
Recognition in Financial Statements," which provides guidance related to revenue
recognition. The SEC delayed the required effective date of SAB 101 until the
fourth fiscal quarter of fiscal years beginning after December 15, 1999, which
is our fourth quarter of 2000. SAB 101 requires companies to report any changes
in revenue recognition as a cumulative change in accounting principle at the
time of implementation in accordance with APB Opinion No. 20, "Accounting
Changes."
Historically we have recognized non-refundable license fees, research
payments, additional payments and milestone payments in connection with
collaboration agreements when the revenue is earned in accordance with the
applicable performance requirements and/or contractual terms. This revenue
recognition policy was applicable to certain agreements we entered into with
Schering-Plough, Sanofi-Synthelabo and Merck KgaA during 1996. We recognized
revenue under these agreements when we had performed all significant obligations
and the customer was obligated to pay. We generally considered any remaining
performance obligations, such as maintaining access to our genomic databases, as
insignificant. However, SAB 101 provides guidance that indicates revenue
recognition over the collaboration term is generally the preferred treatment for
all fees, regardless of the significance of remaining performance obligations.
We are currently in the process of evaluating the impact SAB 101 will have
on our financial position and results of operations. Based upon the proposed
implementation schedule of SAB 101, we have preliminarily determined that we
will record a cumulative effect of a change in accounting principle of between
$8 million and $13 million as a charge to earnings during the fourth quarter of
2000. We expect to recognize an equivalent amount as revenue over the remaining
term of the applicable agreements, which will be during the first and second
quarters of 2001.
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, we will describe the
intended use of the net proceeds from that offering in a prospectus supplement.
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 we offer securities as units, we will
describe the terms of the units in a prospectus supplement.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
We describe below the common stock and preferred stock we may offer under
this prospectus. The terms we summarize 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 a 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 we satisfy the dividend rights of holders of
any preferred stock, we will pay holders of common stock any dividend declared
by our board out of funds legally available for that purpose. After we pay
liquidation preferences to holders of any preferred stock, we will pay to
holders of common stock, 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 have no preemptive right to become
subscribers or purchasers of additional shares of any class of our capital
stock. In the future, we may designate and issue shares of a series of preferred
stock with rights, preferences and privileges senior to those of our common
stock.
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 may issue the preferred stock in one or more series and 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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We will fix the rights, preferences, privileges and restrictions of the
preferred stock of each series by a certificate of designation relating to each
series. We will specify the terms of the preferred stock in a prospectus
supplement, 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. We urge you to read
the applicable certificate of designation and the description in the prospectus
supplement. We will describe in the prospectus supplement the 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
We have adopted provisions in our certificate of incorporation and bylaws
to enhance the likelihood of continuity and stability in the composition of our
board and its policies. 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. These provisions could discourage 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. We have divided our
board into three classes of directors serving staggered three-year terms. The
classification of directors makes it more difficult for stockholders to change
the composition of our board in a relatively short period of time. Our directors
may be removed only for cause. In addition, we may fill vacancies and newly
created directorships resulting from any increase in the size of our board only
by the affirmative vote of a majority of the directors then in office, a quorum
or by a sole remaining director. Thus, stockholders may be unable to remove
incumbent directors without cause and fill the resulting vacancies with their
own nominees.
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Special Stockholders' Meetings. Unless otherwise required by statute, only
the following persons may call a special meeting of stockholders:
- our board or our chairman or president; or
- the holders of at least a majority of our securities outstanding and
entitled to vote generally in the election of directors.
Section 203 of Delaware Law. In addition, 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. We will issue
one preferred share purchase right 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. A holder of a right that becomes
exercisable may purchase one four-thousandth of a share of our junior
participating preferred stock, par value $.01 per share, at a price of $250.00
per one four-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. After the rights become exercisable,
if we are acquired through a merger or other business combination transaction or
50% or more of our assets or earning power is sold, a holder of a right may
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 we redeem or exchange the rights
before that time. 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 may redeem the rights, at $0.00025
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 20% in the case of
some of our stockholders, or more of our outstanding common stock.
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 receive a cumulative
preferential quarterly dividend payment equal to the greater of $250.00 per
share or 4,000 times the dividend declared per share of common stock. In the
event of liquidation, a holder of a share of this preferred
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stock will receive a preferential liquidation payment equal to the greater of
$4,000 per share or 4,000 times the payment made per share of common stock. A
holder of a share of this preferred stock will receive 4,000 votes, voting
together with the common stock. Finally, in the event of any merger,
consolidation or other transaction in which common stock is exchanged, a holder
of a share of this preferred stock will receive 4,000 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 senior debt securities and subordinated debt securities under
separate indentures between us, as issuer, and the trustee or trustees
identified in the prospectus supplement. We filed the form for each type of
indenture as an exhibit to the registration statement of which this prospectus
is a part.
We will describe the particular terms of any debt securities we may offer
in a prospectus supplement. 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. We will make payments on our subordinated debt securities only if we have
made all payments due under our senior indebtedness, including any outstanding
senior debt securities.
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.
We will describe the debt securities and the price or prices at which we
will offer the debt securities in a prospectus supplement. We will describe:
- 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;
- 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;
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- 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
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 depositary and terms for 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. We will
describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default in the prospectus supplement. In addition,
we will describe U.S. federal income tax or other 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
If applicable, we will describe the terms on which you may convert debt
securities into or exchange them for common stock or other securities or
property in the prospectus
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supplement. The conversion or exchange may be mandatory or may be at your
option. We will describe how to calculate the number of shares of common stock
or other securities or property that you will receive upon conversion or
exchange.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
We will pay the indebtedness underlying the subordinated debt securities
only if we have made all payments due under our senior indebtedness, including
any outstanding senior debt securities. 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.
If an event of default accelerates the subordinated debt securities, 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 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.
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. We will deposit each global security with a
depositary or a custodian. The global security will bear a legend regarding the
restrictions on exchanges and registration of transfer.
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<PAGE> 14
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 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. Your 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.
PAYMENT AND PAYING AGENTS
Unless we indicate 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 we indicate otherwise, we will pay principal and any premium or
interest on the debt securities at the office of our designated paying agent.
Unless we indicate otherwise, the corporate trust office of the trustee will be
the paying agent for the debt securities.
We will name any other paying agents for the debt securities of a
particular series 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
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<PAGE> 15
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 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;
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<PAGE> 16
- 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, we and the trustee may change the rights
of holders of a series of notes 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 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
We may 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
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<PAGE> 17
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 establish this trust
only if:
- no event of default has occurred and continues to occur;
- 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
- 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.
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<PAGE> 18
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. We urge you to read the detailed provisions of the
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, we
will describe the terms of the stock warrants in a prospectus supplement,
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. You must pay the exercise price by cash or check
when you surrender your stock warrant certificate. The stock warrant agent will
deliver certificates evidencing duly exercised stock warrants to the transfer
agent. Upon receipt of the 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. We
urge you to read the detailed provisions of the 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
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<PAGE> 19
offer debt warrants, we will describe the terms of the warrants in a prospectus
supplement, 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 we will list in the prospectus supplement. You will
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 and the series of debt
securities issuable upon exercise of the debt warrants. In addition, you will
not receive payments of principal of and interest, if any, on the debt
securities unless you exercise your debt warrant.
Exercise of Debt Warrants. You may exercise debt warrants by surrendering
to the debt warrant agent the debt warrant certificate, with payment in full of
the exercise price. Upon the exercise of debt warrants, the debt warrant agent
will, as soon as practicable, deliver to you the debt securities in authorized
denominations in accordance with your instructions and at your sole cost and
risk. If you exercise fewer than all the debt warrants evidenced by any debt
warrant certificate, the agent will deliver to you a new debt warrant
certificate representing the unexercised debt warrants.
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<PAGE> 20
PLAN OF DISTRIBUTION
We may sell the securities through underwriters or dealers, through agents,
or directly to one or more purchasers. We will describe the terms of the
offering of the securities in a prospectus supplement, 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 we name in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If we use underwriters 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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<PAGE> 21
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.
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.
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<PAGE> 22
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 any filings we make with the SEC after
the date of this prospectus under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act. We also incorporate by reference the documents listed below:
- 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;
- Current Reports on Form 8-K filed on February 2, 2000, March 3, 2000,
March 13, 2000, March 24, 2000 and September 21, 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. See "Where You Can Find More Information"
for other ways to obtain these documents.
------------------------
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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<PAGE> 23
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> 24
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
25.1+ Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended
</TABLE>
---------------
<TABLE>
<S> <C>
+ 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.
++ Previously filed.
* 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.
</TABLE>
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 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
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<PAGE> 25
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 19th day of
October, 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 dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ WILLIAM A. HASELTINE, PH.D Chairman of the Board, October 19, 2000
--------------------------------------------- Chief Executive
William A. Haseltine, Ph.D. Officer and Director
(Principal
Executive Officer)
* Senior Vice President October 19, 2000
--------------------------------------------- of Research and
Craig Rosen, Ph.D. Development and
Director
* Senior Vice President October 19, 2000
--------------------------------------------- and Chief Financial
Steven C. Mayer Officer (Principal
Accounting and
Financial Officer)
* Director October 19, 2000
---------------------------------------------
Jurgen Drews, M.D.
* Director October 19, 2000
---------------------------------------------
Beverly Sills Greenough
* Director October 19, 2000
---------------------------------------------
Robert D. Hormats
</TABLE>
II-4
<PAGE> 27
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
* Director October 19, 2000
---------------------------------------------
Max Link, Ph.D.
* Director October 19, 2000
---------------------------------------------
Alan G. Spoon
* Director October 19, 2000
---------------------------------------------
Laura D'Andrea Tyson, Ph.D.
* Director October 19, 2000
---------------------------------------------
James B. Wyngaarden, M.D.
</TABLE>
------------------------------------------------------
*By: /s/ WILLIAM A. HASELTINE, PH.D.
------------------------------------
Attorney-in-Fact
II-5
<PAGE> 28
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
25.1+ Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended
</TABLE>
---------------
<TABLE>
<S> <C>
+ 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.
++ Previously filed.
* 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.
</TABLE>
II-6
