exv4w2



 







Exhibit 4.2




EXECUTION COPY




REGISTRATION RIGHTS AGREEMENT




by and among




HUMAN GENOME SCIENCES, INC.




and




THE INITIAL PURCHASERS NAMED HEREIN




Dated August 9, 2005




     Registration Rights Agreement (this “Agreement”), dated as of August 9, 2005, by and
among Human Genome Sciences, Inc., a Delaware corporation (together with any successor entity, the
“Issuer”) and Citigroup Global Markets Inc. (“Citigroup”) and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) (each, an “Initial Purchaser”
and, collectively, the “Initial Purchasers”).



     Pursuant to the Purchase Agreement, dated August 4, 2005, by and among the Issuer and the
Initial Purchasers (the “Purchase Agreement”), the Initial Purchasers have agreed to
purchase from the Issuer up to $230,000,000 in aggregate principal amount of 21/4% Convertible
Subordinated Notes Due 2012 (the “Notes”). The Notes will be convertible into fully paid,
nonassessable shares of common stock, par value $0.01 per share, of the Issuer (the “Common
Stock”) on the terms, and subject to the conditions, set forth in the Indenture (as defined
herein). To induce the Initial Purchasers to purchase the Notes, the Issuer has agreed to provide
the registration rights set forth in this Agreement pursuant to the Purchase Agreement.



     The parties hereby agree as follows:



     SECTION 1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:



     Advice: As defined in Section 4(c)(ii) hereof.



     Agreement: As defined in the preamble hereto.



     Business Day: A day other than a Saturday or Sunday or any federal holiday in the
United States.



     Citigroup: As defined in the preamble hereto.



 









 





     Commission: Securities and Exchange Commission.



     Common Stock: As defined in the preamble hereto.



     Damages Payment Date: Each Interest Payment Date.



     Effectiveness Period: As defined in Section 2(a)(iii) hereof.



     Effectiveness Target Date: As defined in Section 2(a)(ii) hereof.



     Exchange Act: Securities Exchange Act of 1934, as amended.



     Holder: A Person who owns, beneficially or otherwise, Transfer Restricted Securities.



     Indenture: The Indenture, dated as of August 9, 2005, between the Issuer and The Bank
of New York, as trustee, pursuant to which the Notes are to be issued, as such Indenture is
amended, modified or supplemented from time to time in accordance with the terms thereof.



     Initial Purchasers: As defined in the preamble hereto.



     Interest Payment Date: As defined in the Indenture.



     Issuer: As defined in the preamble hereto.



     Liquidated Damages: As defined in Section 3(a) hereof.



     Majority of Holders: Holders holding over 50% of the aggregate principal amount of
Notes outstanding; provided, however, that, for purpose of this definition, a
holder of shares of Common Stock which constitute Transfer Restricted Securities and were issued
upon conversion of the Notes shall be deemed to hold an aggregate principal amount of Notes (in
addition to the aggregate principal amount of Notes held by such holder) equal to the aggregate
principal amount of Notes converted by such Holder into such shares of Common Stock.



     Merrill Lynch: As defined in the preamble hereto.



     NASD: National Association of Securities Dealers, Inc.



     Notes: As defined in the preamble hereto.



     Offering Memorandum: The offering memorandum of the Issuer relating to the Notes.



     Person: An individual, partnership, corporation, unincorporated organization, trust,
joint venture or a government or agency or political subdivision thereof.



     Prospectus: The prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such Prospectus.



     Purchase Agreement: As defined in the preamble hereto.



2









 





     Questionnaire Deadline: As defined in Section 2(b) hereof.



     Record Holder: With respect to any Damages Payment Date, each Person who is a Holder
of Notes on the record date with respect to the Interest Payment Date on which such Damages Payment
Date shall occur.



     Registration Default: As defined in Section 3(a) hereof.



     Securities Act: Securities Act of 1933, as amended.



     Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.



     Shelf Registration Statement: As defined in Section 2(a)(i) hereof.



     Suspension Period: As defined in Section 4(b)(i) hereof.



     TIA: Trust Indenture Act of 1939, as in effect on the date the Indenture is qualified
under the TIA.



     Transfer Restricted Securities: Each Note and each share of Common Stock issued upon
conversion of Notes until the earlier of:




     (i) the date on which such Note or such share of Common Stock issued upon conversion
has been effectively registered under the Securities Act and disposed of in accordance with
the Shelf Registration Statement;




     (ii) the date on which such Note or such share of Common Stock issued upon conversion
is transferred in compliance with Rule 144 under the Securities Act or may be sold or
transferred pursuant to Rule 144(k) under the Securities Act (or any other similar provision
then in force); or




     (iii) the date on which such Note or such share of Common Stock issued upon conversion
ceases to be outstanding (whether as a result of redemption, repurchase and cancellation,
conversion or otherwise).



     Underwritten Registration or Underwritten Offering: A registration in which
securities of the Issuer are sold to an underwriter for reoffering to the public.



     SECTION 2. Shelf Registration.



     (a) The Issuer shall:




     (i) not later than 90 days after the date hereof (the “Shelf Filing Deadline”),
cause to be filed a registration statement pursuant to Rule 415 under the Securities Act
(the “Shelf Registration Statement”), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities held by Holders that have provided
the information required pursuant to the terms of Section 2(b) hereof;



3









 






     (ii) use its best efforts to cause the Shelf Registration Statement to be declared
effective by the Commission as promptly as is practicable, but in no event later than 180
days after the date hereof (the “Effectiveness Target Date”); and




     (iii) use its best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section 4(b) hereof to
the extent necessary to ensure that it (A) is available for resales by the Holders of
Transfer Restricted Securities entitled to the benefit of this Agreement and (B) conforms
with the requirements of this Agreement and the Securities Act and the rules and regulations
of the Commission promulgated thereunder as announced from time to time for a period (the
“Effectiveness Period”) of:




     (1) two years after the date hereof; or




     (2) such shorter period that will terminate when (x) all of the Holders of
Transfer Restricted Securities are able to sell all Transfer Restricted Securities
immediately without restriction pursuant to Rule 144(k) under the Securities Act or
any successor rule thereto, (y) when all Transfer Restricted Securities have ceased
to be outstanding (whether as a result of redemption, repurchase and cancellation,
conversion or otherwise) or (z) all Transfer Restricted Securities registered under
the Shelf Registration Statement have been sold.



     (b) Subject to Section 2(c) below, no Holder may include any of its Transfer Restricted
Securities in the Shelf Registration Statement pursuant to this Agreement unless such Holder
furnishes to the Issuer in writing, prior to or on the 20th Business Day after receipt of a request
therefor (the “Questionnaire Deadline”), such information as the Issuer may reasonably
request, including the information specified in the form of questionnaire attached as Annex A to
the Offering Memorandum, for use in connection with the Shelf Registration Statement or the
Prospectus or preliminary Prospectus included therein and in any application to be filed with or
under state securities laws. In connection with all such requests for information from Holders in
addition to that set forth in Annex A to the Offering Memorandum, the Issuer shall notify such
Holders of the requirements set forth in the preceding sentence.



     (c) Beginning on the date the Shelf Registration Statement is declared effective, if necessary
to identify such Holder as a selling securityholder in the Shelf Registration Statement, the Issuer
shall:




     (i) (1) if permitted by the Commission to file a prospectus supplement, within 10
business days of receipt of a completed questionnaire, together with such other information
as the Issuer may reasonably request, file with the Commission a supplement to the related
Prospectus, or




          (2) within 30 days of receipt of a completed questionnaire, together with such other
information as the Issuer may reasonably request, file with the Commission a post-effective
amendment to the Shelf Registration Statement or file any other document required under the
Securities Act, and use its best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as



4









 






is practicable, but in any event by the date that is 30 days after the date such
post-effective amendment is required by this clause to be filed;




     (ii) provide such Holder copies of any documents filed pursuant to Section 2(c)(i); and




     (iii) notify such Holder as promptly as practicable after (i) the filing of such
prospectus supplement pursuant to Section 2(c)(i)(1), or (ii) the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section 2(c)(i)(2);


provided that if such questionnaire is delivered during a Suspension Period, the Issuer
shall so inform the Holder delivering such questionnaire and shall take the actions set forth in
clauses (i), (ii) and (iii) above upon expiration of the Suspension Period; provided
further that in no event shall the Issuer be required to file a post-effective amendment to
the Shelf Registration Statement for the purpose of naming Holders as selling securityholders
pursuant to Section 2(c)(i)(2) until the date that is 30 days after the date the Issuer shall have
received questionnaires from Holders of Transfer Restricted Securities holding an aggregate of at
least $10 million aggregate principal amount of Transfer Restricted Securities; and
provided further that in no event will the Issuer be required to file a
post-effective amendment to the Shelf Registration Statement more frequently than once per fiscal
quarter. In connection with all such requests for information from Holders in addition to that set
forth in Annex A to the Offering Memorandum, the Issuer shall notify such Holders of the
requirements set forth in the preceding sentence.




     SECTION 3. Liquidated Damages.



     (a) If:




     (i) the Shelf Registration Statement is not filed with the Commission prior to or on
the Shelf Filing Deadline;




     (ii) the Shelf Registration Statement has not been declared effective by the Commission
prior to or on the Effectiveness Target Date;




     (iii) subject to the provisions of Section 4(b)(i) hereof, the Shelf Registration
Statement is filed and declared effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded within five Business Days by a post-effective amendment to the Shelf Registration
Statement or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or




     (iv) prior to or on the 45th, 60th or 90th day, as the case may be, of any Suspension
Period, such suspension has not been terminated;


(each such event referred to in foregoing clauses (i) through (iv), a “Registration
Default”), the Issuer hereby agrees to pay liquidated damages (“Liquidated Damages”)
from and including the day following the Registration Default to but excluding the day on which the
Registration Default has been cured in respect of the Notes, to each holder of Notes, (x) with
respect to the




5









 







first 90-day period during which a Registration Default shall have occurred and be continuing, in
an amount per year equal to an additional 0.25% of the principal amount of the Notes and (y) with
respect to the period commencing on the 91st day following the day the Registration Default shall
have occurred and be continuing, in an amount per year equal to an additional 0.50% of the
principal amount of the Notes; provided that in no event shall Liquidated Damages accrue at
a rate per year exceeding 0.50% of the principal amount of the Notes.




     (b) All accrued Liquidated Damages shall be paid in arrears to Record Holders by the Issuer on
each Damages Payment Date by wire transfer of immediately available funds or by federal funds
check. Following the cure of all Registration Defaults relating to any particular Note, the
accrual of Liquidated Damages with respect to such Note will cease. In no event shall Liquidated
Damages be paid to any Holder of a Note that has converted such Note into Common Stock.



     All obligations of the Issuer set forth in this Section 3 that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.



     A Holder shall only be entitled to Liquidated Damages pursuant to Section 3(a)(iii) or Section
3(a)(iv) if such Holder shall have returned a completed questionnaire to the Issuer, together with
such other information as the Issuer may reasonably request.



     The Liquidated Damages set forth above shall be the exclusive monetary remedy available to the
Holders of Notes for such Registration Default.



     SECTION 4. Registration Procedures.



     (a) In connection with the Shelf Registration Statement, the Issuer shall comply with all the
provisions of Section 4(b) hereof and shall use its best efforts to effect such registration to
permit the resale of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof, and pursuant thereto, shall as expeditiously as possible prepare
and file with the Commission a Shelf Registration Statement relating to registration on any
appropriate form under the Securities Act.



     (b) In connection with the Shelf Registration Statement and any Prospectus required by this
Agreement to permit the resale of Transfer Restricted Securities, the Issuer shall:




     (i) Subject to any notice by the Issuer in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(D), use its best
efforts to keep the Shelf Registration Statement continuously effective during the
Effectiveness Period. Upon the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not be effective and usable for resale of Transfer
Restricted Securities during the Effectiveness Period, the Issuer shall file promptly an
appropriate amendment to the Shelf Registration Statement or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of
clause (A), correcting any such misstatement or omission, and, in the case of



6









 






either clause (A) or (B), use its best efforts to cause any such amendment to be
declared effective and the Shelf Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable thereafter. Notwithstanding the
foregoing, the Issuer may suspend the effectiveness of the Shelf Registration Statement by
written notice to the Holders for a period not to exceed 45 days in any 90-day period or an
aggregate of 90 days in any 360-day period (each such period, a “Suspension Period”)
if, in the Issuer’s reasonable judgment, it possesses material non-public information the
disclosure of which would have a material adverse effect on the business of the Issuer (and
its subsidiaries, if any, taken as a whole); provided, however, that in the
event the disclosure relates to a previously undisclosed proposed or pending material
business transaction, the disclosure of which would impede the Issuer’s ability to
consummate such transaction, the Issuer may extend a Suspension Period from 45 days to 60
days.




     (ii) Prepare and file with the Commission such post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration Statement
effective during the Effectiveness Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the Shelf
Registration Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in the Shelf Registration
Statement or Prospectus supplement.




     (iii) Advise the selling Holders that have provided the information required by Section
4(d) of this Agreement, the Initial Purchasers, and the underwriter(s), if any, promptly
(but in any event within five Business Days) and, if requested by such Persons, confirm such
advice in writing:




     (A) with respect to the Shelf Registration Statement or any post-effective
amendment thereto, when the same has become effective, and when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed,




     (B) of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto,




     (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, or




     (D) of the existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the



7









 






Shelf Registration Statement or the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Shelf Registration Statement or the
Prospectus in order to make the statements therein not misleading.



     If at any time the Commission shall issue any stop order suspending the effectiveness of the
Shelf Registration Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Issuer shall use its reasonable
best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.




     (iv) Furnish to each of the selling Holders that have provided the information required
by Section 4(d) of this Agreement, the underwriter(s), if any, before filing with the
Commission, a copy of the Shelf Registration Statement and copies of any Prospectus included
therein or any amendments or supplements to the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference after the initial filing of the Shelf
Registration Statement), which documents will be subject to the review of such Holders, the
Initial Purchasers and underwriter(s), if any, for a period of at least ten Business Days,
and the Issuer will not file any Shelf Registration Statement or Prospectus or any amendment
or supplement to the Shelf Registration Statement or Prospectus (other than documents
incorporated by reference) to which a selling Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement, the Initial Purchasers, or the underwriter(s),
if any, shall reasonably object within five Business Days after the receipt thereof. A
selling Holder, the Initial Purchasers, or underwriter, if any, shall be deemed to have
reasonably objected to such filing if the Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission. Notwithstanding the foregoing, the Issuer shall not be required
to furnish the selling Holders with any amendment or supplement to the Shelf Registration
Statement or Prospectus filed solely to reflect changes to the amount of Notes held by any
particular Holder at the request of such Holder or immaterial revisions to the information
contained therein.




     (v) If the selling Holders propose to make an underwritten public offering of the
Transfer Restricted Securities, subject to the proviso contained in Section 4(b)(ix), make
available at reasonable times for inspection by one or more representatives of the selling
Holders, designated in writing by a Majority of Holders whose Transfer Restricted Securities
are included in the Shelf Registration Statement, any underwriter participating in any
distribution pursuant to the Shelf Registration Statement and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Issuer as shall be reasonably
necessary to enable them to exercise any applicable due diligence responsibilities, and
cause the Issuer’s officers, directors, managers and employees to supply all information
reasonably requested by any such representative or representatives of the selling Holders,
underwriter, attorney or accountant in connection with the Shelf Registration Statement
after the filing thereof and before its effectiveness; provided, however,
that any information designated by the Issuer as confidential at the time of delivery of
such information shall be kept confidential by the recipient thereof.



8









 






     (vi) If requested by any selling Holders, the Initial Purchasers or the underwriter(s),
if any, promptly incorporate in the Shelf Registration Statement or Prospectus, pursuant to
a supplement or post-effective amendment if necessary, such information as such selling
Holders, the Initial Purchasers, and such underwriter(s), if any, may reasonably request to
have included therein, including, without limitation: (1) information relating to the “Plan
of Distribution” of the Transfer Restricted Securities, (2) information with respect to the
principal amount of Notes or number of shares of Common Stock being sold to such
underwriter(s), if any, (3) the purchase price being paid therefor and (4) any other terms
of the offering of the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Issuer is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment. Notwithstanding the foregoing,
following the effective date of the Shelf Registration Statement, the Issuer shall not be
required to file more than one such supplement or post-effective amendment to reflect
changes in the amount of Notes held by any particular Holder at the request of such Holder
in any 30-day period.




     (vii) Furnish to each selling Holder, the Initial Purchasers, and each of the
underwriter(s), if any, without charge, at least one copy of the Shelf Registration
Statement, as first filed with the Commission, and of each amendment thereto (and any
documents incorporated by reference therein or exhibits thereto (or exhibits incorporated in
such exhibits by reference) as such Person may request).




     (viii) Deliver to each selling Holder, the Initial Purchasers, and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably
may request; subject to any notice by the Issuer in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(D), the Issuer
hereby consents to the use of the Prospectus and any amendment or supplement thereto by each
of the selling Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.




     (ix) If an underwriting agreement is entered into and the registration is an
Underwritten Registration, the Issuer shall:




     (A) upon request, furnish to each selling Holder and the underwriter(s), if
any, in such substance and scope as they may reasonably request and as are
customarily made by issuers to underwriters in primary underwritten offerings, upon
the date of closing of any sale of Transfer Restricted Securities in an Underwritten
Registration: (1) a certificate, dated the date of such closing, signed by the
Chief Financial Officer of the Issuer confirming, as of the date thereof, the
matters set forth in Section 5(c) of the Purchase Agreement and such other matters
as such parties may reasonably request; (2) opinions, each dated the date of such
closing, of counsel to the Issuer covering such of the matters set forth in the
exhibits to the Purchase Agreement referred to in Section 5(a) thereof as are
customarily covered in legal opinions to underwriters in connection with primary



9









 






underwritten offerings of securities; and (3) customary comfort letters, dated
the date of such closing, from the Issuer’s independent registered public accounting
firm (and from any other accountants whose report is contained or incorporated by
reference in the Shelf Registration Statement), in the customary form and covering
matters of the type customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings of securities;




     (B) set forth in full in the underwriting agreement, if any, indemnification
provisions and procedures which provide rights no less protective than those set
forth in Section 6 hereof with respect to all parties to be indemnified;




     (C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the selling Holders pursuant to this clause (ix);




provided, however, that the Issuer shall not be required to facilitate an
Underwritten Offering, as set forth in this subsection (ix), pursuant to the Shelf
Registration Statement by any Holders unless the offering relates to at least $50,000,000
principal amount of the Transfer Restricted Securities.




     (x) Before any public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s),
if any, may reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however,
that the Issuer shall not be required (A) to register or qualify as a foreign corporation or
a dealer of securities where it is not now so qualified or to take any action that would
subject it to the service of process in any jurisdiction where it is not now so subject or
(B) to subject itself to taxation in any such jurisdiction if they are not now so subject.




     (xi) Cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and, when issued to the purchasers of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, not bearing any restrictive legends (unless
required by applicable securities laws); and enable such Transfer Restricted Securities to
be in such denominations and registered in such names as the selling Holders or the
underwriter(s), if any, may request at least two Business Days before any sale of Transfer
Restricted Securities made by the selling Holders or such underwriter(s).




     (xii) Use its best efforts to cause the Transfer Restricted Securities covered by the
Shelf Registration Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to enable the seller or sellers



10









 






thereof or the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities.




     (xiii) Subject to Section 4(b)(i) hereof, if any fact or event contemplated by Section
4(b)(iii)(D) hereof shall exist or have occurred, use its reasonable best efforts to prepare
a supplement or post-effective amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading.




     (xiv) Provide CUSIP numbers for all Transfer Restricted Securities not later than the
effective date of the Shelf Registration Statement and provide the Trustee under the
Indenture with certificates for the Notes that are in a form eligible for deposit with The
Depository Trust Company.




     (xv) Cooperate with respect to any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter that is required to be
retained in accordance with the rules and regulations of the NASD.




     (xvi) Otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission and all reporting requirements under the rules and regulations
of the Exchange Act.




     (xvii) Cause the Indenture to be qualified under the TIA not later than the effective
date of the Shelf Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause the Trustee thereunder to
execute all documents that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner.




     (xviii) Cause all Transfer Restricted Securities covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each securities exchange or
automated quotation system on which similar securities issued by the Issuer are then listed
or quoted.




     (xix) Make available to each Holder upon written request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement.




     (xx) Use its best efforts to obtain a waiver from each person who would otherwise have
the right to have securities of the Issuer (other than Transfer Restricted Securities)
registered on the Shelf Registration Statement required by this Agreement. To the extent
the Issuer does not receive such waivers, it will use its best efforts to obtain the consent
of such persons from whom waivers are not obtained to file a separate



11









 






registration statement with respect to all such other registrable securities, rather
than include them in the Shelf Registration Statement and, upon receipt of such consent, to
register such registrable securities in accordance therewith.



     (c) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of
any notice from the Issuer of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts to cause any
underwriter(s) in an Underwritten Offering to, forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement until:




     (i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(b)(xiii) hereof; or




     (ii) such Holder is advised in writing (the “Advice”) by the Issuer that the
use of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so directed
by the Issuer, each Holder will deliver to the Issuer (at the Issuer’s expense) all copies,
other than permanent file copies then in such Holder’s possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of receipt of such
notice of suspension.



     (d) Each Holder who intends to be named as a selling Holder in the Shelf Registration
Statement shall furnish to the Issuer in writing, prior to or on the 20th Business Day after
receipt of a request therefor as set forth in a questionnaire, such information regarding such
Holder and the proposed distribution by such Holder of its Transfer Restricted Securities as the
Issuer may reasonably request for use in connection with the Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. The form of the questionnaire is attached
as Annex A to the Offering Memorandum. Holders that do not complete the questionnaire and deliver
it to the Issuer shall not be named as selling securityholders in the Prospectus or preliminary
Prospectus included in the Shelf Registration Statement and therefore shall not be permitted to
sell any Transfer Restricted Securities pursuant to the Shelf Registration Statement. Each Holder
who intends to be named as a selling Holder in the Shelf Registration Statement shall promptly
furnish to the Issuer in writing such other information as the Issuer may from time to time
reasonably request in writing. Each Holder as to which the Shelf Registration Statement is being
effected agrees to furnish promptly to the Issuer all information required to be disclosed in order
to make information previously furnished to the Issuer by such Holder not materially misleading.



     SECTION 5. Registration Expenses.



     (a) All expenses incident to the Issuer’s performance of or compliance with this Agreement
shall be borne by the Issuer regardless of whether a Shelf Registration Statement becomes
effective, including, without limitation:




     (i) all registration and filing fees and expenses (including filings made by any
Initial Purchasers, Holders or underwriters with the NASD);




     (ii) all fees and expenses of compliance with federal securities and state Blue Sky or
securities laws;



12









 






     (iii) all expenses of printing (including printing of Prospectuses and certificates for
the Common Stock to be issued upon conversion of the Notes), messenger and delivery services
and telephone;




     (iv) all fees and disbursements of counsel to the Issuer and, subject to Section 5(b)
below, the Holders of Transfer Restricted Securities;




     (v) all application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and




     (vi) all fees and disbursements of independent registered public accounting firm of the
Issuer (including the expenses of any special audit and comfort letters required by or
incident to such performance).


The Issuer shall bear its internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal, accounting or other duties), the
expenses of any annual audit and the fees and expenses of any Person, including special experts,
retained by the Issuer.




     (b) In connection with the review of the Shelf Registration Statement and other documents
referred to in this Agreement, the Issuer shall, against a reasonably detailed invoice therefor,
reimburse the Initial Purchasers, and the Holders of Transfer Restricted Securities being
registered pursuant to the Shelf Registration Statement, for the reasonable fees and disbursements
of not more than one counsel, which shall be Shearman & Sterling LLP, or such other counsel as may
be chosen by a Majority of Holders for whose benefit the Shelf Registration Statement is being
prepared.



     SECTION 6. Indemnification and Contribution.



     (a) The Issuer agrees to indemnify and hold harmless each Initial Purchaser (and each of their
directors, officers and employees), each Holder whose securities are included in a Shelf
Registration Statement (and each of their directors, officers and employees), each Person who
participates as an underwriter (any such Person being an “Underwriter”) and each Person, if
any, who controls any Initial Purchaser, Holder or Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:




     (i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading;



13









 






     (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided, however, that (subject to
Section 6(d) below) any such settlement is effected with the written consent of the Issuer;
and




     (iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Issuer by the Initial Purchasers, such Holder or such Underwriter
expressly for use in a Shelf Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto) and (y) with respect to any untrue statement or omission
or alleged untrue settlement or omission made in any preliminary prospectus relating to the Shelf
Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to
the benefit of any Holder from whom the person asserting any such losses, claims, damages or
liabilities purchased the Transfer Restricted Securities concerned, to the extent that a prospectus
relating to such Transfer Restricted Securities was required to be delivered by such Holder under
the Securities Act in connection with such purchase and any such loss, claim, damage or liability
of such Holder results from the fact that there was not sent or given to such person, at or prior
to the written confirmation of the sale of such Transfer Restricted Securities to such person, a
copy of the final prospectus if (1) the Issuer had previously furnished copies thereof to such
Holder and (2) such loss, claim, damage or liability of such Holder resulted from an untrue
statement or omission or alleged untrue settlement or omission contained in or omitted from the
preliminary prospectus which was corrected in the final prospectus; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Issuer may otherwise have to such Indemnified Party.




     (b) Each Holder whose securities are included in a Shelf Registration Statement, severally but
not jointly, agrees to indemnify and hold harmless the Issuer (and its directors, officers and
employees), the Initial Purchasers (and each of their directors, officers and employees), each
Underwriter (and each of their directors, officers and employees) and the other selling Holders
(and each of their directors, officers and employees) and each Person, if any, who controls the
Issuer, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in Section 6(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in such Shelf Registration Statement (or any amendment



14









 




thereto) or any Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information with respect to such Holder furnished to the Issuer by such
Holder expressly for use in such Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Transfer Restricted Securities pursuant to such Shelf
Registration Statement.




     (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying party or parties be liable for the fees
and expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.



     (d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.



     (e) If the indemnification provided for in this Section 6 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the Transfer Restricted Securities on
the one hand and a Holder with respect to the sale by the Holder of the Transfer Restricted
Securities on the other hand; or (ii) if the allocation provided by clause (i) is not permitted by



15









 




applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.




     The relative benefits received by the Issuer on the one hand and a Holder on the other hand
with respect to such offering and such sale shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased under the Purchase Agreement (before
deducting expenses) received by the Issuer, as set forth in the Offering Memorandum on the one hand
bear to the total net proceeds received by such Holder with respect to its sale of Transfer
Restricted Securities on the other. The relative fault of the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
indemnifying party or parties on the one hand or the indemnified party or parties on the other hand
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.



     The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6 were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this Section 6. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 6 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.



     Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute
any amount in excess of the amount by which the total price at which the Transfer Restricted
Securities purchased by it were resold exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. The Holders’ obligations to contribute as provided in this Section 6(e) are
several and not joint. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.



     For purposes of this Section 6, each Person, if any, who controls an Initial Purchaser, a
Holder or an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Initial Purchaser, such Holder
or such Underwriter, and each director of the Issuer, and each Person, if any, who controls the
Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Issuer.



     SECTION 7. Rule 144A. In the event the Issuer is not subject to Section 13 or 15(d)
of the Exchange Act, the Issuer hereby agrees with each Holder, for so long as any Transfer



16









 




Restricted Securities remain outstanding, to make available to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser
of such Transfer Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.




     SECTION 8. Participation in Underwritten Registrations. No Holder may participate in
any Underwritten Registration hereunder unless such Holder:




     (i) agrees to sell such Holder’s Transfer Restricted Securities on the basis provided
in any underwriting arrangements approved by the Persons entitled hereunder to approve such
arrangements, and




     (ii) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.



     SECTION 9. Selection of Underwriters. Subject to the proviso contained in Section
4(b)(ix), the Holders of Transfer Restricted Securities covered by the Shelf Registration Statement
who desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In
any such Underwritten Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by a Majority of Holders whose Transfer
Restricted Securities are included in such offering; provided that such investment bankers and
managers must be reasonably satisfactory to the Issuer.



     SECTION 10. Miscellaneous.



     (a) Remedies. The Issuer acknowledges and agrees that any failure by the Issuer to
comply with its obligations under Section 2 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required to specifically
enforce the Issuer’s obligations under Section 2 hereof. The Issuer further agrees to waive the
defense in any action for specific performance that a remedy at law would be adequate.



     (b) Adjustments Affecting Transfer Restricted Securities. The Issuer shall not,
directly or indirectly, take any action with respect to the Transfer Restricted Securities as a
class that would adversely affect the ability of the Holders to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.



     (c) No Inconsistent Agreements. The Issuer will not, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.
In addition, the Issuer shall not, on or after the date hereof, grant to any of its security
holders (other than the holders of Transfer Restricted Securities in such capacity) the right to
include any of its securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. Except as disclosed in the Offering Memorandum
dated August 4, 2005 relating to the Notes, the Issuer has not previously entered into any
agreement (which



17









 




has not expired or been terminated) granting any registration rights with respect to its
securities to any Person which rights conflict with the provisions hereof.




     (d) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given,
unless the Issuer has obtained the written consent of a Majority of Holders.



     (e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:




     (i) if to a Holder, at the address set forth on the records of the registrar under the
Indenture or the transfer agent of the Common Stock, as the case may be; and




     (ii) if to the Issuer:


Human Genome Sciences, Inc.

14200 Shady Grove Road

Rockville, Maryland 20850

Attention: General Counsel


With a copy (which shall not constitute notice) to:


DLA Piper Rudnick Gray Cary US LLP

6225 Smith Avenue

Baltimore, Maryland 21209

Attention: R.W. Smith, Jr., Esq.


All such notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery.




     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders of Transfer Restricted Securities;
provided, however, that (i) this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder and (ii) nothing contained herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities, in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement.



18









 





     (g) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.



     (h) Securities Held by the Issuer or Their Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Issuer or its “affiliates” (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.



     (i) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



     (j) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.



     (k) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.



     (l) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuer with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.



[Remainder of page intentionally left blank]




19









 








     IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.



	 	 	 	 	 
	 	Very truly yours,



HUMAN GENOME SCIENCES, INC.

 	 
	 	By:  	/s/ Steven C. Mayer
 	 
	 	 	Name:  	Steven C. Mayer 	 
	 	 	Title:  	Executive Vice President and CFO 	 
	 



Agreed and accepted as of the date first

above written:



	 	 	 	 	 	 	 
	CITIGROUP GLOBAL MARKETS INC.	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Trygve Mikkelsen	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Trygve Mikkelsen	 	 	 	 
	 

	 	Title: Managing Director	 	 	 	 
	 
	 	 	 	 	 	 
	MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Anthony J. Gibney	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Anthony J. Gibney	 	 	 	 
	 

	 	Title: Director	 	 	 	 







20