**Exhibit 10.5**
FORM OF EXECUTIVE AGREEMENT
     This EXECUTIVE AGREEMENT (the *“Agreement”*) is made and entered into as of the ___day of___, 2004 (the *“Effective Date”*), by and between HUMAN GENOME SCIENCES, INC. (the*“Company”*), and ___(*“Executive”*).
     In consideration of the services provided by Executive and the covenants and agreementscontained herein, and for other good and valuable consideration the sufficiency of which isacknowledged by the parties to this Agreement, the Company and Executive agree as follows:
     1. *Severance Benefits*. Notwithstanding anything in any existing agreement betweenthe Company and Executive to the contrary, in the event that Executive’s employment with theCompany is terminated (a) by the Company without Cause (as defined below), excluding for thispurpose a termination due to death or total disability (as determined under the Company’s long-termdisability plan for senior executives as then in effect), or (b) by Executive with Good Reason (asdefined below), the Company shall provide to Executive the following payments and benefits:
          (a) As soon as practicable after the date that such termination of employment becomeseffective (the “*Termination Date*”), the Company shall pay to Executive all accruedcompensation, which consists of accrued but unpaid base salary, any earned but unpaidbonuses for any prior period, all earned or vested incentive compensation, deferredcompensation and other compensation or benefits; all accrued but unpaid reimbursablebusiness expenses; and all accrued but unused vacation time.
          (b) The Company shall provide or distribute, as applicable, all vested benefits underthe Company’s benefit plans, policies and programs in which Executive participated, inaccordance with the terms of such plans, policies and programs, except to the extent thatsuch benefits are duplicative of benefits provided for under this Agreement.
          (c) The Company shall pay to Executive a pro-rata bonus payment the amount of whichwill be the amount of Executive’s annual bonus earned for the prior fiscal year multipliedby a fraction, the numerator of which is the number of days during the year of Executive’stermination that transpired before the Date of Termination, and the denominator of which isthree hundred sixty-five (365). The bonus payment will be paid to Executive as soon aspracticable following the Date of Termination.
          (d) The Company shall continue to pay Executive’s base salary during the twelve (12)month period that commences on the Date of Termination (the “*Severance Period*”). Suchpayments shall be paid at the same time and in the same manner as base salary would havebeen paid if Executive had remained actively employed by the Company until the end of theSeverance Period.
 

 

          (e) The Company shall continue to provide coverage for Executive and Executive’seligible dependents, at the Company’s sole expense, under the Company’s group health plan,within the meaning of Section 607 of the Employee Retirement Income Security Act of 1974, asamended, in which Executive and Executive’s eligible dependents were participating as of theDate of Termination, for twelve (12) months after the Date of Termination; providedthat Executive is not eligible to participate in a group health plan of another entity.Executive’s (and Executive’s eligible dependents’) right to receive continuation coverageunder COBRA shall commence after, and not run coincident with, the continuation coverageprovided under this Section 1(e), and such COBRA coverage shall be provided entirely atExecutive’s expense. Executive’s (and Executive’s eligible dependents’) right to receivecontinuation coverage under this Agreement other than COBRA will terminate upon the earlierof the date specified herein or the date that Executive (or such eligible dependent, asapplicable) first becomes eligible to participate in a group health plan of another entity.
          (f) Executive, or Executive’s estate, as applicable, shall have twelve (12) monthsafter the Date of Termination to exercise all vested stock options outstanding as of theDate of Termination, but in no event may Executive or Executive’s estate exercise any stockoption beyond its term stated in the applicable award agreement. The provisions of thisSection 1(f) serve to amend any provision in an applicable award agreement or plan documentto the contrary, whether now or hereafter existing.
     2. *Release Contingency*. The payments and benefits to be made pursuant to Section1(c), 1(d), 1(e) and 1(f) of this Agreement are conditioned upon Executive’s prior execution andnonrevocation of a general release of claims occurring up to the release date, in the form ofExhibit A attached hereto (with such changes therein as may be necessary to make it validand encompassing under applicable law), within twenty-one (21) days of presentation thereof by theCompany to Executive.
     3. *Definition Of Cause*. For purposes of this Agreement, “*Cause*” means (i) Executive’swillful and continued failure substantially to perform the duties of his or her position (otherthan as a result of disability, as defined in Section 72(m)(7) of the Internal Revenue Code of1986, as amended (the “*Code*”), or as a result of termination by Executive for Good Reason) afterwritten notice to Executive by the Board of Directors of the Company (the “*Board*”) specifying suchfailure, provided that such “Cause” shall have been found by a majority vote of the Board after atleast ten (10) days’ written notice to Executive specifying the failure on the part of Executiveand after an opportunity for Executive to be heard at a meeting of the Board; (ii) any willful actor omission by Executive constituting dishonesty, fraud or other malfeasance, and any act oromission by Executive constituting immoral conduct, which in any such case is injurious to thefinancial condition or business reputation of the Company; or (iii) Executive’s indictment of afelony under the laws of the United States or any state thereof or any other jurisdiction in whichthe Company conducts business. For purposes of this definition, no act or failure to act shall bedeemed “willful” unless effected by Executive not in good faith and without a reasonable beliefthat such action or failure to act was in or not opposed to the best interests of the Company.
-2-

 

     4. *Definition Of Good Reason*. For purposes of this Agreement, “*Good Reason*” means (i)diminution in Executive’s title, position, duties or responsibilities, or the assignment toExecutive of duties that are inconsistent, in a material respect, with the scope of duties andresponsibilities associated with Executive’s position; (ii) material reduction in Executive’scompensation as in effect immediately preceding the Effective Date; (iii) relocation of Executive’sprincipal workplace without his or her consent to a location which is more than fifty (50) milesfrom Executive’s principal workplace on the Effective Date; or (iv) any failure by the Company tocomply with and satisfy the requirements of Section 8 of this Agreement, provided that thesuccessor shall have received at least ten (10) days’ prior written notice from the Company orExecutive of the requirements of Section 8. For purposes of clauses (i) and (ii) of the precedingsentence, an isolated, insubstantial and inadvertent action not taken in bad faith and which isremedied by the Company promptly after receipt of notice thereof given by Executive shall beexcluded. For purposes of clause (i), no diminution of title, position, duties or responsibilitiesshall be deemed to occur solely because the Company becomes a subsidiary of another corporation orchange in the reporting hierarchy incident thereto.
     5. *“At Will” Employment*. Except as may otherwise be expressly provided under anyother executed agreement between Executive and the Company, nothing contained in this Agreement isintended to change the fact that the employment of Executive by the Company is “at will” and may beterminated by either Executive or the Company at any time.
     6. *Arbitration*. Any controversy, dispute or claim of whatever nature arising out of,or in relation to, the Company’s and Executive’s relationship as provided in this Agreement, shallbe resolved first by prompt, informal, good faith negotiations by the parties. If a mutuallysatisfactory resolution is not reached by such good faith negotiations within forty-five (45) days,the parties agree that such controversy, dispute or claim shall be resolved exclusively throughfinal and binding arbitration before a single neutral arbitrator selected jointly by the parties.If the parties are unable to agree on a single arbitrator, each of the Company and Executive shallselect an arbitrator, and those arbitrators will jointly select a third, who will arbitrate thedispute. The arbitrator must be a former judge, and the arbitration shall be conducted inaccordance with the rules of JAMS/ENDISPUTE then in effect. The arbitration shall take place inRockville, Maryland. The Company will pay the direct costs and expenses of the arbitration. TheCompany and Executive will each separately pay its counsel fees and expenses; provided,however, the Company shall reimburse Executive for Executive’s reasonable costs (includingwithout limitation, attorneys’ fees) incurred if Executive succeeds on the merits on a materialissue and Executive is not found to be in material breach. The parties agree that any awardrendered by the arbitrator shall be final and binding, and that judgment upon the award may beentered in any court having jurisdiction thereof. The provisions of this Section 6 shall survivethe expiration or termination of this Agreement and of Executive’s employment.
     7. *Tax Withholding*. The Company may withhold from any compensation and benefitspayable under this Agreement all applicable federal, state, local, or other taxes.
     8. *Assignment*. This Agreement shall inure to the benefit of and be binding upon theparties hereto and their respective heirs, representatives, successors and assigns. This Agreementshall not be assignable by Executive (but any payments due under this Agreement which would
-3-

 

be payable at a time after Executive’s death shall be paid to Executive’s designatedbeneficiary or, if none, Executive’s estate). The Company shall require any successor, whetherdirect or indirect, by purchase, merger, consolidation or otherwise, to all or substantially all ofthe business and/or assets of the Company expressly to assume and agree to perform this Agreementin the same manner and to the same extent that the Company would have been required to perform itif no such succession had taken place. As used in this Agreement, the term “Company” shall meanboth the Company as defined above and any such successor.
     9. *Entire Agreement; Non-Duplication Of Benefits*. This Agreement shall constitute theentire understanding of the parties with respect to the subject matter herein and shall supersedeany and all existing oral or written agreements, representations, or warranties between Executiveand the Company or any of its subsidiaries or affiliated entities relating to the terms ofExecutive’s employment by the Company, but shall not supersede that certain Employee ConfidentialInformation, Invention and Non-Competition Agreement between the Company and Executive dated___, ___, nor the provisions of the Company’s Key Executive Severance Plan (the “*SeverancePlan*”) in which Executive is a participant. In the event that Executive is entitled to benefitsunder the Severance Plan and this Agreement, Executive shall be entitled to the better benefits ofthe two, determined in the aggregate and in Executive’s discretion, and in no event will Executivebe entitled to benefits under both this Agreement and the Severance Plan.
     10. *Amendment*. This Agreement shall not be amended except by a written agreementsigned by both parties.
     11. *Governing Law*. This Agreement shall be governed by and construed in accordancewith the laws of the State of Maryland applicable to agreements made and to be performed in thatState, without regard to its conflict of laws provisions.
     12. *Notices*. Any notice, consent, request or other communication made or given inconnection with this Agreement shall be in writing and shall be deemed to have been duly given uponreceipt when delivered by hand or by overnight courier, or three (3) days after deposit in the U.S.mail by registered or certified mail, return receipt requested, with proper postage affixed, to theparties at their following respective addresses or at such other address as each may specify bynotice to the other in accordance with this Section. Notices to the Company shall be addressed tothe Secretary of Human Genome Sciences, Inc. at 14200 Shady Grove Road, Rockville, Maryland 20850.Notices to the Executive shall be addressed to Executive’s address as reflected on Company’spersonnel records.
     13. *No Duty To Mitigate*. The Company agrees that, if Executive’s employment with theCompany terminates, Executive is not required to seek other employment or to attempt in any way toreduce any amounts payable to or in respect of Executive by the Company pursuant to this Agreement.Further, the amount of any payment or benefit provided for in this Agreement shall not be reducedby any compensation earned by Executive as the result of employment by another employer or byretirement benefits.
-4-

 

     14. *Non Exclusivity Of Rights*. Nothing in this Agreement shall prevent or limitExecutive’s continuing or future participation in any benefit, bonus, incentive or other plan orprogram provided by the Company and for which Executive may qualify, nor shall anything hereinlimit or otherwise negatively affect such rights as Executive may have under any stock option orother agreement with the Company or any of its affiliated companies. Except as otherwise providedherein, amounts and benefits which are vested benefits or which Executive is otherwise entitled toreceive under any plan, program, agreement or arrangement of the Company at or subsequent to theDate of Termination shall be payable in accordance with such plan or program.
     15. *Counterparts*. This Agreement may be executed in any number of counterparts, byoriginal signature or facsimile, each of which so executed shall be deemed to be an original, andsuch counterparts will together constitute but one Agreement.
* * * * *
     IN WITNESS WHEREOF, this Agreement is EXECUTED and EFFECTIVE as of the day set forth above.    [NAME OF EXECUTIVE]  WITNESS:(“Executive”)              HUMAN GENOME SCIENCES, INC.  ATTEST:(“Company”)  By:           Title:   
-5-

 

EXHIBIT A to EXECUTIVE AGREEMENT
GENERAL RELEASE
     For and in consideration of the promises made in the Executive Agreement (defined below), theadequacy of which is hereby acknowledged, the undersigned (“**Executive**”), for himself, his heirs,administrators, legal representatives, executors, successors, assigns, and all other personsclaiming through Executive, if any (collectively, “**Releasers**”), does hereby release, waive, andforever discharge Human Genome Sciences, Inc. (“**Company**”), Company’s subsidiaries, parents,affiliates, related organizations, employees, officers, directors, attorneys, successors, andassigns (collectively, the “**Releasees**”) from, and does fully waive any obligations of Releasees toReleasers for, any and all liability, actions, charges, causes of action, demands, damages, orclaims for relief, remuneration, sums of money, accounts or expenses (including attorneys’ fees andcosts) of any kind whatsoever, whether known or unknown or contingent or absolute, which heretoforehas been or which hereafter may be suffered or sustained, directly or indirectly, by Releasers inconsequence of, arising out of, or in any way relating to Executive’s employment with Company orany of its affiliates, status as an officer, and the termination of Executive’s employment orremoval as an officer. The foregoing release and discharge, waiver and covenant not to sueincludes, but is not limited to, all claims and any obligations or causes of action arising fromsuch claims, under common law including wrongful or retaliatory discharge, breach of contract(including but not limited to any claims under the Executive Agreement between Company andExecutive, dated as of                     , 2004, as amended from time to time (the “**ExecutiveAgreement**”) and any claims under any stock option and equity-based award agreements betweenExecutive and Company) and any action arising in tort including libel, slander, defamation orintentional infliction of emotional distress, and claims under any federal, state or local statuteincluding Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42U.S.C. § 1981), the National Labor Relations Act, the Family and Medical Leave Act, the AgeDiscrimination in Employment Act (ADEA), the Fair Labor Standards Act, the Americans withDisabilities Act of 1990, the Rehabilitation Act of 1973, the Maryland Human Rights Act, or thediscrimination or employment laws of any state or municipality, and/or any claims under any expressor implied contract which Releasers may claim existed with Releasees. This also includes a releaseby Executive of any claims for breach of contract, wrongful discharge and all claims for allegedphysical or personal injury, emotional distress relating to or arising out of Executive’semployment with Company or the termination of that employment; and any claims under the WARN Act orany similar law, which requires, among other things, that advance notice be given of certain workforce reductions. This release and waiver does not apply to any claims or rights that may ariseafter the date Executive signs this General Release. The foregoing release does not apply to (a)any claims for severance pay or benefits under the Executive Agreement, (b) any claims or rightsunder directors and officers liability insurance, (c) Executive’s rights under any tax-qualifiedpension or claims for accrued vested benefits under any other employee benefit plan maintained byCompany; or (d) Executive’s rights as a stockholder.
     Excluded from this release and waiver are any claims which cannot be waived by law, includingbut not limited to the right to participate in an investigation conducted by certain governmentagencies.
-1-

 

     Executive agrees never to sue Releasees, in any forum for any claim covered by the abovewaiver and release language. Executive represents and warrants that Executive has not filed andwill not file any complaint, charge, or lawsuit against the Releasees with any government agency orany court. If Executive violates this General Release by suing Releasees other than as set forthin the first paragraph hereof, Executive shall be liable to the Company for its reasonableattorneys’ fees and other litigation costs incurred in defending against such a suit, as permittedby law.
     Executive acknowledges and recites that:
          (a)     Executive has executed this General Release knowingly and voluntarily;
          (b)     Executive has read and understands this General Release in its entirety;
          (c)     Executive has been advised and directed orally and in writing (and thissubparagraph (c) constitutes such written direction) to seek legal counsel and any otheradvice he wishes with respect to the terms of this General Release before executing it;
          (d)     Executive’s execution of this General Release has not been forced by any employeeor agent of the Company, and Executive has had an opportunity to negotiate about the termsof this General Release after consultation with an attorney of his choosing; and
          (e)     Executive has been offered twenty-one (21) calendar days after receipt of thisGeneral Release to consider its terms before executing it.
     This General Release shall be governed by the laws of the State of Maryland, except for theapplication of pre-emptive Federal law.
     Executive shall have seven (7) days from the date hereof to revoke this General Release byproviding written notice of the revocation to the Company, as provided in Section 12 of theExecutive Agreement, in which event this General Release shall be unenforceable and null and void.
     PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.         EXECUTIVE         Date:               [Name of Executive]                 HUMAN GENOME SCIENCES, INC.         Date:            By:                   Name:                  Its:         
-2-