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EXHIBIT 1.1
DEALER MANAGER AGREEMENT
December [ ], 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
1. The Offer. Human Genome Sciences, Inc., a Delaware corporation (the
"Company"), is making an offer (hereinafter referred to, together with any
amendments, supplements or extensions thereof, as the "Offer") to deliver
additional shares of common stock, par value $.01 (the "Common Stock"), and
pay accrued interest (together, the "Additional Consideration") to holders
of any and all of its $125,000,000 aggregate principal amount of 5_%
Convertible Subordinated Notes due 2006 (the "Bonds") who shall convert
their Bonds into shares of Common Stock, on the terms and subject to the
conditions set forth in the final prospectus dated [ ] (the "Prospectus"),
the related letter to beneficial owners of the Bonds (the "Letter of
Transmittal") and the notice of guaranteed delivery included in the Form
S-4 Registration Statement that has been filed by the Company with the
Securities and Exchange Commission (the "Commission") (hereinafter referred
to, together with any amendments, supplements and exhibits thereto, as the
"Exchange Offer Registration Statement") attached hereto as Exhibit A. The
Company intends to commence the Offer as soon as possible after the
Exchange Offer Registration Statement becomes effective under the
Securities Act (the "Commencement Date") by publicly announcing its
commencement of the Offer and by mailing, or causing to be mailed on its
behalf, copies of the Prospectus, the related Letter of Transmittal and
such other Offer Material (as defined below) as is required, or as the
Company elects, to each holder of the Bonds.
2. Appointment as Dealer Manager.
(a) The Company hereby appoints you as Dealer Manager (the "Dealer Manager")
and authorizes you to act as such in connection with the Offer. As Dealer
Manager, you agree, in accordance with your customary practice, to perform
those services in connection with the Offer as are customarily performed by
investment banks in connection with offers of a like nature, including, but
not limited to, using reasonable efforts to solicit tenders of Bonds for
conversion pursuant to the Offer and communicating generally regarding the
Offer with brokers, dealers, commercial banks and trust companies and other
holders of Bonds. In such capacity, you shall act as an independent
contractor, and each of your duties arising out of your engagement pursuant
to this Agreement shall be owed solely to the Company.
(b) The Company further authorizes you to communicate with The Bank of New
York, in its capacity as depositary (the "Depositary"), and with ▇▇▇▇▇▇▇▇▇
Shareholder Communications Inc., in its capacity as information agent (the
"Information Agent"),
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with respect to matters relating to the Offer. The Company has or by the
Commencement Date will have entered into appropriate agreements with the
Depositary and the Information Agent for purposes of the Offer. The Company
has instructed the Depositary to advise you at least daily as to the number
of Bonds which have been tendered for conversion pursuant to the Offer and
as to such other matters in connection with the Offer as you may request.
3. No Liability for Acts of Dealers, Banks and Trust Companies. You shall have
no liability to the Company or any other person for any losses, claims,
damages, liabilities and expenses (each a "Loss" and collectively, the
"Losses") arising from any act or omission on the part of any broker or
dealer in securities (a "Dealer"), bank or trust company, or any other
person, and neither you nor any of your affiliates shall be liable for any
Losses arising from your own acts or omissions in performing your
obligations as Dealer Manager or as a Dealer hereunder or otherwise in
connection with the Offer, except for any such Losses which are finally
judicially determined to have resulted primarily from your bad faith or
gross negligence. In soliciting or obtaining tenders of Bonds for
conversion, no Dealer, bank or trust company is to be deemed to be acting
as your agent or the agent of the Company or any of its affiliates, and
you, as Dealer Manager, are not to be deemed the agent of any Dealer, bank
or trust company or the agent or fiduciary of the Company or any of its
affiliates, equity holders, creditors or of any other person. In soliciting
or obtaining tenders of Bonds for conversion, you shall not be and shall
not be deemed for any purpose to act as a partner or joint venture of or a
member of a syndicate or group with the Company or any of its affiliates in
connection with the Offer, any conversion of the Bonds, or otherwise, and
neither the Company nor any of its affiliates shall be deemed to act as
your agent.
4. The Offer Material. The Company agrees to furnish you, at its expense, with
as many copies as you may reasonably request of the Exchange Offer
Registration Statement, the Tender Offer Statement on Schedule 13E-4
(together with all exhibits, amendments and supplements thereto, the
"Schedule 13E-4") and all statements and other documents filed or to be
filed with the Commission or any other federal, state, local or foreign
governmental or regulatory agencies, bodies or authorities or any court
(each an "Other Agency" and collectively, the "Other Agencies") and any
amendments or supplements to any such statements and documents (the
definitive forms of all of the foregoing materials are hereinafter
collectively referred to as the "Offer Material") to be used by the Company
in connection with the Offer, and you are authorized to use copies of the
Offer Material in connection with the Offer. The Offer Material has been or
will be prepared and approved by, and is the sole responsibility of, the
Company.
You hereby agree, as Dealer Manager, that you will not disseminate any
written material for or in connection with the solicitation of tenders of
Bonds for conversion pursuant to the Offer other than the Offer Material,
and you agree that you will not make any statements in connection with such
solicitation, other than the statements that are set forth in the Offer
Material or as otherwise authorized by the Company.
The Company agrees that no Offer Material will be used in connection with
the Offer or filed with the Commission or any Other Agency with respect to
the Offer without
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first obtaining your prior approval, which approval shall not be
unreasonably withheld. In the event that the Company uses or permits the
use of any Offer Material in connection with the Offer or files any such
material with the Commission or any Other Agency without your prior
approval, then you shall be entitled to withdraw as Dealer Manager in
connection with the Offer without any liability or penalty to you or any
Indemnified Person (as hereinafter defined), and you shall remain entitled
to the indemnification provided in Section 11 hereof and to receive the
payment of all fees and expenses payable under this Agreement which have
accrued to the date of such withdrawal or would otherwise be due to you on
such date. If you withdraw as Dealer Manager, the fees accrued and
reimbursement for your expenses through the date of such withdrawal shall
be paid to you promptly after such date.
5. Compensation. The Company agrees to pay you, as compensation for your
services as Dealer Manager in connection with the Offer, a fee equal to
1.00% of the aggregate principal amount of Bonds validly converted pursuant
to the Offer.
6. Expenses of Dealer Manager and Others. In addition to your compensation for
your services hereunder pursuant to Section 5 hereof, the Company agrees to
pay directly, or reimburse you, as the case may be, for (i) all expenses
incurred by you relating to the preparation, printing, filing, mailing and
publishing of all Offer Material, (ii) all fees and expenses of the
Depositary and Information Agent, (iii) all advertising charges in
connection with the Offer, including those of any public relations firm or
other person or entity rendering services in connection therewith, (iv) all
fees, if any, payable to Dealers (including you), and banks and trust
companies as reimbursement for their customary mailing and handling
expenses incurred in forwarding the Offer Material to their customers and
(v) all other fees and expenses incurred by you in connection with the
Offer or otherwise in connection with the performance of your services
hereunder (including reasonable fees and disbursements of your legal
counsel). All payments to be made by the Company pursuant to this Section 6
shall be made promptly against delivery to the Company of statements
therefor. The Company shall be liable for the foregoing payments whether or
not the Offer is commenced, withdrawn, terminated or canceled prior to the
conversion of any Bonds or whether the Company or any of its affiliates
acquires any Bonds pursuant to the Offer or whether you withdraw pursuant
to Section 4 hereof.
7. Securityholder Lists. The Company will cause you to be provided with cards
or lists or other records in such form as you may reasonably request
showing the names and addresses of, and the number of Bonds held by, the
holders of Bonds as of a recent date and will cause you to be advised from
day to day during the period of the Offer as to any transfers of record of
Bonds.
8. Representations and Warranties of the Company. The Company represents and
warrants to you as of the date hereof that:
a) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct
its business as
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described in the Offer Material; and the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
b) The Company has full corporate power and authority to take and has
duly taken all necessary corporate action to authorize (i) the Offer,
(ii) the issuance of Common Stock upon conversion of the Bonds and as
part of the Additional Consideration pursuant to the Offer and (iii)
the execution, delivery and performance of this Agreement; this
Agreement has been duly executed and delivered on behalf of the
Company and, assuming due authorization, execution and delivery of
this Agreement by you, is a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except that the enforceability hereof may be limited by (x)
bankruptcy, insolvency, reorganization, moratorium and other laws now
or hereafter in effect relating to creditors' rights generally and (y)
general principles of equity.
c) The Company has, or will have at the time the Company becomes
obligated to convert Bonds and deliver the Additional Consideration,
sufficient funds to pay any cash portion of the Additional
Consideration payable pursuant to the Offer, and the fees and expenses
payable hereunder.
d) The Offer Material complies or will comply in all material respects
with the applicable provisions of the Securities Act of 1933 (the
"Securities Act") and Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations promulgated by the Commission
thereunder. The Offer Material does not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which
they are made, not misleading; provided, however, that no
representation is made with respect to any statements contained in, or
any matter omitted from, the Offer Material in reliance upon and in
conformity with information furnished or confirmed in writing by you
to the Company expressly for use therein, it being understood and
agreed that only such information consists of paragraph four under
"The Offer--Fees and Expenses" of the Prospectus. Except as disclosed
in the Offer Material, on the date of this Agreement, the Company's
Annual Report on Form 10-K most recently filed with the Commission,
the Company's Quarterly Report on Form 10-Q most recently filed with
the Commission, the description of Common Stock contained in the
Company's Registration Statement on Form 8-A, the press release with
respect to the Offer contained in the Company's Current Report on Form
8-K and all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission or
sent to shareholders pursuant to the Exchange Act prior to or as of
the date hereof do not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
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e) The Company will file, if required, any and all necessary amendments
or supplements to the documents filed with the Commission or Other
Agencies relating to the Offer and will promptly furnish to you true
and complete copies of each such amendment and supplement upon the
filing thereof.
f) The Offer, the conversion of Bonds and delivery of the Additional
Consideration pursuant to the Offer, and the execution, delivery and
performance of this Agreement by the Company, comply and will comply
in all material respects with all applicable requirements of federal
or state law, including, without limitation, any applicable
regulations of the Commission and Other Agencies, and all applicable
judgments, orders or decrees; and no consent, authorization, approval,
order, exemption, registration, qualification or other action of, or
filing with or notice to, the Commission or any Other Agency is
required in connection with the execution, delivery and performance of
this Agreement by the Company, the making or consummation by the
Company of the Offer or the consummation of the other transactions
contemplated by this Agreement or the Exchange Offer Registration
Statement. All such required consents, authorizations, approvals,
orders, exemptions, registrations, qualifications and other actions of
and filings with and notices to the Commission and the Other Agencies
will have been obtained, taken or made, as the case may be, and all
statutory or regulatory waiting periods will have elapsed, prior to
the conversion of the Bonds pursuant to the Offer.
g) The Offer, the conversion of Bonds and delivery of the Additional
Consideration pursuant to the Offer, and the execution, delivery and
performance of this Agreement by the Company, do not and will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (i) any statute, any rule, regulation
or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any of its
properties, (ii) any agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
properties of the Company is subject, or (iii) the charter or by-laws
of the Company.
h) The Exchange Offer Registration Statement has become effective; except
as disclosed in the Offer Material, no stop order, restraining order
or denial of an application for approval has been issued and there are
no pending actions, suits or proceedings against or affecting the
Company, or any of its properties (i) that, if determined adversely to
the Company, would, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company ("Material Adverse
Effect"), or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement or to
consummate the Offer or the other transactions contemplated by this
Agreement or the Offer Material; or (ii) with respect to the Offer;
and no such actions, suits or proceedings are, to the Company's
knowledge, threatened or contemplated.
i) The financial statements incorporated by reference in the Offer
Material present fairly the financial position of the Company as of
the dates shown and their
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results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis.
j) Except as disclosed in the Offer Material, since the date of the
latest audited financial statements included in the Offer Material,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company, and, except as disclosed in or contemplated
by the Offer Material, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
k) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act
of 1940 (the "Investment Company Act"); the Company is not and, after
giving effect to the conversion of the Bonds and delivery of the
Additional Consideration that it may become obligated to convert or
deliver pursuant to the terms of the Offer, will not be an "investment
company" as defined in the Investment Company Act.
l) The Company has, and shall have at the time of the conversion of
Bonds, duly authorized and reserved for issuance shares of Common
Stock to be issued upon conversion of such Bonds and as part of the
delivery of the Additional Consideration pursuant to the Offer, and
when issued, such shares of Common Stock will be validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Offer Material; any outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof in the Offer
Material; and the stockholders of the Company have no preemptive
rights with respect to the Bonds or shares of Common Stock to be
issued upon conversion of such Bonds that have not been waived.
9. Opinionsof the Company's Counsel and Letter of Certified Accountants. The
Company shall deliver to you (a) opinions addressed to you and dated the
date hereof of ▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Company, and ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Company, with respect
to the matters set forth in Exhibits B-1 and B-2, respectively and (b) (i)
a letter dated the date hereof, of Ernst & Young LLP confirming that they
are independent public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder ("Rules and
Regulations") and with respect to the matters set forth in Exhibit C hereto
and (ii) a letter dated the date of the conversion of the Bonds pursuant to
the Offer (the "Exchange Date") Exchange Date of Ernst & Young LLP in form
and substance reasonably satisfactory to the Dealer Manager to the effect
that such accountants reaffirm the statements made in the letter furnished
pursuant to clause (b)(i) hereof.
10. Notification of Certain Events. The Company shall advise you promptly of
(a) the occurrence of any event which could cause the Company to withdraw,
rescind or
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terminate the Offer, (b) the occurrence of any event, or the discovery of
any fact, the occurrence or existence of which it believes would require
the making of any change in any of the Offer Material then being used or
would cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect, (c) any proposal or
requirement to make, amend or supplement any filing required by the
Exchange Act in connection with the Offer or to make any filing in
connection with the Offer pursuant to any other applicable law, rule or
regulation, (d) the issuance by the Commission or any Other Agency of any
comment or order or the taking of any other action concerning the Offer
(and, if in writing, will furnish you with a copy thereof), (e) any
material developments in connection with the Offer, including, without
limitation, the commencement of any lawsuit concerning the Offer and (f)
any other information relating to the Offer, the Offer Material or this
Agreement which you may from time to time reasonably request.
11. Indemnification. (a) The Company agrees to hold harmless and indemnify you
(including any affiliated companies) and any officer, director, partner,
employee or agent of you or any of such affiliated companies and any entity
or person controlling (within the meaning of Section 20(a) of the Exchange
Act) you, including any affiliated companies (collectively, the
"Indemnified Persons"), from and against any and all Losses whatsoever
(including, but not limited to, any and all expenses incurred in
investigating, preparing or defending against any litigation or proceeding,
commenced or threatened, or any claims whatsoever whether or not resulting
in any liability) (i) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Offer Material
or in any other material used by the Company, or authorized by the Company
for use in connection with the Offer or the transactions contemplated
thereby, or arising out of or based upon the omission or alleged omission
to state in any such document a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (other than statements or
omissions made in reliance with information furnished by you to the Company
expressly for use therein), (ii) arising out of or based upon any
withdrawal by the Company of, or failure by the Company to make or
consummate, the Offer or the transactions contemplated thereby or any other
failure to comply with the terms and conditions specified in the Offer
Material, (iii) arising out of the breach or alleged breach by the Company
of any representation, warranty or covenant set forth in this Agreement or
(iv) arising out of, relating to or in connection with any other action
taken or omitted to be taken by an Indemnified Person with respect to the
Offer or (v) otherwise arising out of, relating to or in connection with
the Offer, the other transactions described in the Offer Material or your
services as Dealer Manager hereunder. The Company shall not, however, be
responsible for any Loss pursuant to clauses (iv) or (v) of the preceding
sentence of this Section 11 which has been finally judicially determined to
have resulted primarily from the bad faith or gross negligence on the part
of any Indemnified Person, other than any Loss arising out of or resulting
from actions performed at the request of, with the consent of, or in
conformity with actions taken or omitted to be taken by, the Company.
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(b) The Company and you agree that if any indemnification sought by any
Indemnified Person pursuant to this Section 11 is unavailable for any
reason or insufficient to hold you harmless, then the Company and you shall
contribute to the Losses for which such indemnification is held unavailable
or insufficient in such proportion as is appropriate to reflect the
relative benefits received (or anticipated to be received) by the Company,
on the one hand, and actually received by you, on the other hand, in
connection with the transactions contemplated by this Agreement or, if such
allocation is not permitted by applicable law, not only such relative
benefits but also the relative faults of the Company, on the one hand, and
you, on the other hand, as well as any other equitable considerations,
subject to the limitation that in any event the aggregate contribution by
you to all Losses with respect to which contribution is available hereunder
shall not exceed the fees actually received by you in connection with your
engagement hereunder. It is hereby agreed that the relative benefits to the
Company, on the one hand, and you, on the other hand, with respect to the
Offer and the transactions contemplated thereby shall be deemed to be in
the same proportion as (i) the total value of the aggregate conversion
price of all shares of Common Stock issued by the Company upon conversion
of the Bonds and as part of the Additional Consideration after the date of
this Agreement bears to (ii) the fees actually received by you from the
Company in connection with your engagement hereunder.
(c) The foregoing rights to indemnity and contribution shall be in addition to
any other right which you and the other Indemnified Persons may have
against the Company at common law or otherwise. If any litigation or
proceeding is brought against any Indemnified Person in respect of which
indemnification may be sought against the Company pursuant to this Section
11, such Indemnified Person shall promptly notify the Company in writing of
the commencement of such litigation or proceeding, but the failure so to
notify the Company shall relieve the Company from any liability which it
may have hereunder only if, and to the extent that, such failure results in
the forfeiture by the Company of substantial rights and defenses, and will
not in any event relieve the Company from any other obligation or liability
that they may have to any Indemnified Person other than under this
Agreement. In case any such litigation or proceeding shall be brought
against any Indemnified Person and such Indemnified Person shall notify the
Company in writing of the commencement of such litigation or proceeding,
the Company shall be entitled to participate in such litigation or
proceeding, and, after written notice from the Company to such Indemnified
Person, to assume the defense of such litigation or proceeding with counsel
of its choice at its expense; provided, however, that such counsel shall be
satisfactory to the Indemnified Person in the exercise of its reasonable
judgment. Notwithstanding the election of the Company to
assume the defense of such litigation or proceeding, such Indemnified
Person shall have the right to employ separate counsel and to participate
in the defense of such litigation or proceeding, and the Company shall bear
the reasonable fees, costs and expenses of such separate counsel and shall
pay such fees, costs and expenses at least quarterly (provided that with
respect to any single litigation or proceeding or with respect to several
litigations or proceedings involving substantially similar legal claims,
the Company shall not be required to bear the fees, costs and expenses of
more than one such counsel in addition to any local counsel) if (i) in the
reasonable judgment of such Indemnified Person the use of counsel chosen by
the Company to repre-
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sent such Indemnified Person would present such counsel with a conflict of
interest, (ii) the defendants in, or targets of, any such litigation or
proceeding include both an Indemnified Person and the Company, and such
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it or to other Indemnified Persons which are
different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such
action on behalf of the Indemnified Person), (iii) the Company shall not
have employed counsel satisfactory to such Indemnified Person, in the
exercise of the Indemnified Person's reasonable judgment, to represent such
Indemnified Person within a reasonable time after notice of the institution
of such litigation or proceeding or (iv) the Company shall authorize in
writing such Indemnified Person to employ separate counsel at the expense
of the Company. In any action or proceeding the defense of which the
Company assumes, the Indemnified Person shall have the right to participate
in such litigation and retain its own counsel at such Indemnified Person's
own expense. The Company and you agree to notify the other promptly of the
assertion of any claim against it, any of its officers or directors or any
entity or person who controls it within the meaning of Section 20(a) of the
Exchange Act in connection with the Offer. The foregoing indemnification
commitments shall apply whether or not the Indemnified Person is a formal
party to such litigation or proceeding.
(d) The Company also agrees to reimburse each Indemnified Person for all
expenses (including fees and disbursements of counsel) as they are incurred
by such Indemnified Person in connection with investigating, preparing for,
defending or providing evidence (including appearing as a witness) with
respect to any action, claim, investigation, inquiry, arbitration or other
proceeding referred to in this Section 11 or enforcing this Agreement,
whether or not in connection with pending or threatened litigation in which
any Indemnified Person is a party.
(e) The Company agrees that it will not, without your prior written consent,
settle, compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding in respect of which
indemnification may be sought hereunder (whether or not you, any other
Indemnified Person or the Company is an actual or potential party), unless
such settlement, compromise or consent (i) includes an unconditional
release of each Indemnified Person from all liability arising out of such
claim, action or proceeding 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
an Indemnified Person.
12. Conditions to Obligations of the Dealer Manager. Your obligations hereunder
shall at all times be subject to the conditions that (a) all
representations, warranties and other statements of the Company contained
herein are as of the Commencement Date, at all times during the period of
the Offer and as of the Exchange Date shall be, true and correct in all
material respects and (b) the Company at all times shall have performed in
all material respects all of their obligations hereunder theretofore to be
performed.
13. Termination. This Agreement shall terminate upon the expiration,
termination or withdrawal of the Offer or upon withdrawal by you as Dealer
Manager pursuant to
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Section 4 hereof, it being understood that Sections 3, 5, 6, 8, 11, 13, 15,
16, 19, 20, 21 and 22 hereof shall survive any termination of this
Agreement.
14. Notices.All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be given (and
shall be deemed to have been given upon receipt) by delivery in person, by
cable, by telecopy, by telegram, by telex or by registered or certified
mail (postage prepaid, return receipt requested) to the applicable party at
the addresses indicated below:
a) if to you:
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investment Banking Department--Transactions
Advisory Department
b) if to the Company:
HUMAN GENOME SCIENCES, INC.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
c) with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇, ▇▇.
15. Consent to Jurisdiction; Service of Process. The Company hereby (a) submits
to the jurisdiction of any New York State or Federal court sitting in the
City of New York with respect to any actions and proceedings arising out of
or relating to this Agreement, (b) agrees that all claims with respect to
such actions or proceedings may be heard and determined in such New York
State or Federal court, (c) waives the defense of an inconvenient forum,
(d) agrees not to commence any action or proceeding relating to this
Agreement other than in a New York State or Federal court sitting in the
City of New York and (e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
16. Joint and Several Obligations, Etc. In the event that the Company makes the
Offer through one or more of its affiliates, each reference in this
Agreement to the Company shall be deemed to be a reference to the Company
and any such
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affiliates, and the representations, warranties, covenants and agreements
of the Company and any such affiliates hereunder shall be joint and
several.
17. Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
18. Amendment. This Agreement may not be amended except in writing signed by
each party to be bound thereby.
19. Governing Law. The validity and interpretation of this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without regard to conflicts of law principles thereof.
20. Waiver of Jury Trial. THE COMPANY HEREBY AGREES ON ITS OWN BEHALF AND, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY HOLDERS,
TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
COUNTER-CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE
OFFER).
21. Counterparts; Severability. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Any term or
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction.
22. Parties in Interest. This Agreement, including rights to indemnity and
contribution hereunder, shall be binding upon and inure solely to the
benefit of each party hereto, the Indemnified Persons and their respective
successors, heirs and assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
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Please indicate your willingness to act as Dealer Manager and your acceptance of
the foregoing provisions by signing in the space provided below for that purpose
and returning to us a copy of this Agreement so signed, whereupon this Agreement
and your acceptance shall constitute a binding agreement between us.
Very truly yours,
HUMAN GENOME SCIENCES, INC.
By:
--------------------------
Name:
Title:
Accepted as of the
date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------
Name:
Title:
13
Exhibit A
Exchange Offer Registration Statement
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Exhibit B-1
Matters to be Addressed in the Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇
a) The Offer, the conversion of Bonds and the delivery of Additional
Consideration pursuant to the Offer, and the execution, delivery and
performance of this Agreement by the Company, do not and will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (i) any statute, any rule, regulation
or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any of its
properties, (ii) any agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
properties of the Company is subject, or (iii) the charter or by-laws
of the Company.
b) To such counsel's knowledge, after due inquiry, no stop order,
restraining order or denial of an application for approval has been
issued and there are no pending actions, suits or proceedings against
or affecting the Company or any of its properties (i) that, if
determined adversely to the Company, would, individually or in the
aggregate, have a Material Adverse Effect or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement or to consummate the Offer or the other
transactions contemplated by this Agreement or the Offer Material; or
(ii) with respect to the ownership of the Bonds by the Company; and no
actions, suits or proceedings are, to such counsel's knowledge,
threatened or contemplated.
c) To such counsel's knowledge, after due inquiry, there is no action,
suit or proceeding pending before or threatened by any court or public
or governmental authority or arbitrator involving the Company of a
character required to be disclosed in the Offer Material which is not
adequately disclosed or incorporated by reference in the Offer
Material.
d) Excluding the matters contained under the caption "Certain United
States Federal Tax Considerations," the description in the Offer
Material of statutes (excluding Federal securities laws), legal and
governmental proceedings, and contracts relevant to the Company and
its business in all material respects are accurate statements or
summaries of the matters set forth therein.
e) The outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description thereof contained in the Exchange Offer Registration
Statement.
Such counsel shall also advise that the Offer Material complies or will comply
in all material respects with the applicable provisions of the Securities Act
and the Exchange Act and the rules and regulations promulgated by the Commission
thereunder and that no facts have come to its attention which has caused it to
believe that the Offer Material, or any amendment or supplement thereto, or any
other document incorporated by reference therein, contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading (except that counsel
need express no view as to financial statements, schedules and other financial
information included or incorporated by reference therein). With respect to such
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statements, such counsel may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
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Exhibit B-2
Matters to be Addressed in the Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
a) The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the
Offer Material; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification
except where the failure to so qualify would not have a Material Adverse Effect
on the Company.
b) The Company has all requisite corporate power and authority to take and has
duly taken all necessary corporate action to authorize (i) the Offer, (ii) the
issuance of Common Stock upon conversion of Bonds and as part of the Additional
Consideration pursuant to the Offer and (iii) the execution, delivery and
performance of this Agreement, and this Agreement has been duly executed and
delivered on behalf of the Company and, assuming due authorization, execution
and delivery of this Agreement by CREDIT SUISSE FIRST BOSTON CORPORATION, is a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except that the enforceability thereof may
be limited by (x) bankruptcy, insolvency, reorganization, moratorium and other
laws now or hereafter in effect relating to creditors' rights generally and (y)
general principles of equity including public policy limitations with respect to
the enforceability of the indemnification provisions of this Agreement.
c) The Offer, the conversion of Bonds and the delivery of Additional
Consideration pursuant to the Offer, and the execution, delivery and performance
of this Agreement by the Company, comply and will comply in all material
respects with all applicable requirements of federal or state law, including,
without limitation, any applicable regulations of the Commission and Other
Agencies, and, to such counsel's knowledge, all applicable judgments, orders or
decrees, and no consent, authorization, approval, order, exemption,
registration, qualification or other action of, or filing with, the Commission
or any Other Agency is required in connection with the execution, delivery and
performance of this Agreement by the Company, the making or consummation by the
Company of the Offer, the issuance and delivery of share of Common Stock upon
conversion and as part of the Additional Consideration, or the consummation of
the other transactions contemplated by this Agreement or the Exchange Offer
Registration Statement except (i) those consents, authorizations, approvals,
orders, exemptions, registrations, qualifications which have heretofore been
obtained and (ii) such as may be required under state securities laws.
d) The Offer, the conversion of Bonds and the delivery of Additional
Consideration pursuant to the Offer, and the execution, delivery and performance
of this Agreement by the Company, do not and will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
(i) any statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the Company or
any of its properties, (ii) to the knowledge of such counsel, any agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the properties of the Company is subject, or (iii) the charter
or by-laws of the Company.
e) The Company has, and shall have at the time of the conversion of Bonds, duly
authorized and reserved for issuance shares of Common Stock to be issued upon
conversion of such Bonds and as part of the Additional Consideration pursuant to
the Offer, and when issued, such shares of Common Stock will be validly issued,
fully paid and nonassessable and will conform in all material
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respects to the description thereof contained in the Exchange Offer Registration
Statement. The stockholders of the Company have no preemptive rights with
respect to the Bonds or shares of Common Stock to be issued upon conversion
thereof or as delivered as part of the Additional Consideration under the
Company's certificate of incorporation, bylaws or the Delaware General
Corporation Law, or to the knowledge of such counsel, under any document or
agreement to which the Company is a party, other than any such preemptive rights
waived by the holder thereof.
f) To such counsel's knowledge, no stop order, restraining order or denial of an
application for approval has been issued and there are no pending actions, suits
or proceedings against or affecting the Company or any of its properties (i)
that, if determined adversely to the Company, would, individually or in the
aggregate, have a Material Adverse Effect or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement or to consummate the Offer or the other transactions contemplated by
this Agreement or the Exchange Offer Registration Statement; or (ii) with
respect to the ownership of the Bonds by the Company; and no actions, suits or
proceedings are, to such counsel's knowledge, threatened or contemplated.
g) The Company is not, nor will be as a result of the conversion of Bonds and
delivery of the Additional Consideration that it may become obligated to convert
or deliver pursuant to the terms of the Offer, an "investment company" under the
Investment Company Act, as amended, and the rules and regulations promulgated by
the Commission thereunder.
h) To such counsel's knowledge, there is no action, suit or proceeding pending
before or threatened by any court or public or governmental authority or
arbitrator involving the Company of a character required to be disclosed in the
Exchange Offer Registration Statement which is not adequately disclosed or
incorporated by reference in the Exchange Offer Registration Statement.
i) The statements in the Exchange Offer Registration Statement under the caption
"Description of our Capital Stock" insofar as they describe the provisions of
the documents and instruments therein described, constitute fair summaries
thereof accurate in all material respects, and the statements in the Exchange
Offer Registration Statement under the caption "Certain United States Federal
Tax Considerations" insofar as they purport to describe federal income tax laws
of the United States fairly present in all material respects the information set
forth therein.
Such counsel shall also advise that the Offer Material complies or will comply
in all material respects with the applicable provisions of the Securities Act
and the Exchange Act and the rules and regulations promulgated by the Commission
thereunder and that no facts have come to its attention which has caused it to
believe that the Offer Material, or any amendment or supplement thereto, or any
other document incorporated by reference therein, contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading (except that counsel
need express no view as to financial statements, schedules and other financial
information included or incorporated by reference therein). With respect to such
statements, such counsel may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
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Exhibit C
Matters to be Addressed in the Letter of Ernst & Young LLP
The Purchaser shall have received a letter, dated the date of this Agreement, of
Ernst & Young LLP confirming that they are independent public accountants within
the meaning of the Securities Act and the related Rules and Regulations and to
the effect that
a) in their opinion, the financial statements examined by them and
included in the Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act and the related published Rules and Regulations;
b) they have performed the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71,
Interim Financial Information, on the unaudited financial statements
included in the Exchange Act Reports;
c) on the basis of the review referred to in clause (ii) above, a reading
of the latest available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that: at
the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three
business days prior to the date of this Agreement, there was any
change in the capital stock or any increase in short-term indebtedness
or long-term debt of the Company or, at the date of the latest
available balance sheet read by such accountants, there was any
decrease in consolidated net assets, as compared with amounts shown on
the latest balance sheet included in the Exchange Act Reports, except
in all cases set forth above for changes, increases or decreases which
the Exchange Offer Registration Statement discloses have occurred or
may occur or which are described in such letter; or for the period
from the closing date of the latest income statement included in the
Exchange Act Reports to the closing date of the latest available
income statement read by such accountants, there were any decreases,
as compared with the corresponding period of the previous year in
consolidated net sales, net operating income or in the total or per
share amounts of consolidated net income or in the ratio of earnings
to fixed charges; and
d) they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in
the Exchange Act Reports and the Exchange Offer Registration Statement
(in each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such
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dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
