Attached files
file | filename |
---|---|
EX-12.1 - EX-12.1 - HUMAN GENOME SCIENCES INC | w76034exv12w1.htm |
EX-31.1 - EX-31.1 - HUMAN GENOME SCIENCES INC | w76034exv31w1.htm |
EX-32.1 - EX-32.1 - HUMAN GENOME SCIENCES INC | w76034exv32w1.htm |
EX-10.1 - EX-10.1 - HUMAN GENOME SCIENCES INC | w76034exv10w1.htm |
EX-31.2 - EX-31.2 - HUMAN GENOME SCIENCES INC | w76034exv31w2.htm |
EX-32.2 - EX-32.2 - HUMAN GENOME SCIENCES INC | w76034exv32w2.htm |
FORM 10-Q
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For quarterly period ended September 30, 2009 | Commission File Number 0-22962 |
HUMAN GENOME SCIENCES, INC.
(Exact name of registrant)
Delaware (State of organization) |
22-3178468 (I.R.S. Employer Identification Number) |
14200 Shady Grove Road, Rockville, Maryland 20850-7464
(Address of principal executive offices and zip code)
(Address of principal executive offices and zip code)
(301) 309-8504
(Registrants telephone number)
(Registrants telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days.
Yes þ No o
Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files).
Yes o No o
Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act).
Yes o No þ
Yes o No þ
The number of shares of the registrants common stock outstanding on September 30, 2009 was
165,011,468.
TABLE OF CONTENTS
Page | ||||||
Number | ||||||
PART I. | ||||||
Item 1. | Financial Statements |
|||||
3 | ||||||
4 | ||||||
5 | ||||||
7 | ||||||
Item 2. | 24 | |||||
Item 3. | 33 | |||||
Item 4. | 34 | |||||
PART II. | ||||||
Item 1A. | 35 | |||||
Item 6. | 51 | |||||
52 | ||||||
Exhibit Volume |
2
PART I. FINANCIAL INFORMATION
HUMAN GENOME SCIENCES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
CONSOLIDATED STATEMENTS OF OPERATIONS
Three months ended September 30, | Nine months ended September 30, | |||||||||||||||
2008 | 2008 | |||||||||||||||
2009 | (As adjusted) | 2009 | (As adjusted) | |||||||||||||
(dollars in thousands, except share and per share amounts) | ||||||||||||||||
Revenue: |
||||||||||||||||
Product sales |
$ | | $ | | $ | 136,381 | $ | | ||||||||
Manufacturing and development services |
8,668 | | 45,294 | | ||||||||||||
Research and development collaborative agreements |
10,166 | 11,674 | 41,117 | 35,516 | ||||||||||||
Total revenue |
18,834 | 11,674 | 222,792 | 35,516 | ||||||||||||
Costs and expenses: |
||||||||||||||||
Cost of product sales |
| | 14,569 | | ||||||||||||
Cost of manufacturing and development services |
7,331 | | 17,239 | | ||||||||||||
Research and development expenses |
34,794 | 54,322 | 131,379 | 194,605 | ||||||||||||
General and administrative expenses |
14,673 | 15,662 | 41,754 | 46,005 | ||||||||||||
Facility-related exit costs |
| | 11,434 | | ||||||||||||
Total costs and expenses |
56,798 | 69,984 | 216,375 | 240,610 | ||||||||||||
Income (loss) from operations |
(37,964 | ) | (58,310 | ) | 6,417 | (205,094 | ) | |||||||||
Investment income |
3,137 | 5,989 | 10,354 | 18,584 | ||||||||||||
Interest expense |
(14,409 | ) | (15,811 | ) | (43,958 | ) | (46,966 | ) | ||||||||
Charge for impaired investment |
| (6,049 | ) | (1,250 | ) | (6,049 | ) | |||||||||
Gain on extinguishment of debt |
| | 38,873 | | ||||||||||||
Gain on sale of long-term equity investment |
| | 5,259 | 32,518 | ||||||||||||
Other income (expense) |
233 | | (295 | ) | | |||||||||||
Income (loss) before taxes |
(49,003 | ) | (74,181 | ) | 15,400 | (207,007 | ) | |||||||||
Provision for income taxes |
| | | | ||||||||||||
Net income (loss) |
$ | (49,003 | ) | $ | (74,181 | ) | $ | 15,400 | $ | (207,007 | ) | |||||
Basic net income (loss) per share |
$ | (0.32 | ) | $ | (0.55 | ) | $ | 0.11 | $ | (1.53 | ) | |||||
Diluted net income (loss) per share |
$ | (0.32 | ) | $ | (0.55 | ) | $ | 0.11 | $ | (1.53 | ) | |||||
Weighted average shares outstanding, basic |
154,513,251 | 135,486,677 | 142,104,996 | 135,371,579 | ||||||||||||
Weighted average shares outstanding, diluted |
154,513,251 | 135,486,677 | 145,537,847 | 135,371,579 | ||||||||||||
The accompanying Notes to Consolidated Financial Statements are an integral part hereof.
3
HUMAN GENOME SCIENCES, INC.
CONSOLIDATED BALANCE SHEETS
CONSOLIDATED BALANCE SHEETS
September 30, | December 31, | |||||||
2009 | 2008 | |||||||
(dollars in thousands) | ||||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 217,794 | $ | 15,248 | ||||
Short-term investments |
191,286 | 22,691 | ||||||
Collaboration receivables |
9,885 | 22,076 | ||||||
Accounts receivable |
5,541 | 2,871 | ||||||
Inventory |
8,658 | | ||||||
Prepaid expenses and other current assets |
5,007 | 5,280 | ||||||
Total current assets |
438,171 | 68,166 | ||||||
Marketable securities |
218,569 | 265,640 | ||||||
Property, plant and equipment (net of accumulated depreciation and amortization) |
264,898 | 274,315 | ||||||
Restricted investments |
69,578 | 69,360 | ||||||
Long-term equity investments |
2,977 | 2,606 | ||||||
Other assets |
4,664 | 6,745 | ||||||
TOTAL ASSETS |
$ | 998,857 | $ | 686,832 | ||||
Liabilities and Stockholders Equity (Deficit) |
||||||||
Current liabilities: |
||||||||
Accounts payable and accrued expenses |
$ | 37,376 | $ | 55,434 | ||||
Accrued payroll and related taxes |
20,102 | 18,574 | ||||||
Accrued exit expenses |
7,022 | 2,952 | ||||||
Deferred revenues |
43,224 | 43,746 | ||||||
Total current liabilities |
107,724 | 120,706 | ||||||
Convertible subordinated debt |
344,366 | 417,597 | ||||||
Lease financing |
248,118 | 246,477 | ||||||
Deferred revenues, net of current portion |
900 | 29,563 | ||||||
Accrued exit expenses, net of current portion |
7,962 | 2,075 | ||||||
Other liabilities |
8,203 | 6,718 | ||||||
Total liabilities |
717,273 | 823,136 | ||||||
Stockholders equity (deficit): |
||||||||
Preferred stock |
| | ||||||
Common stock |
1,650 | 1,357 | ||||||
Additional paid-in capital |
2,448,749 | 2,059,154 | ||||||
Accumulated other comprehensive income (loss) |
8,110 | (4,490 | ) | |||||
Accumulated deficit |
(2,176,925 | ) | (2,192,325 | ) | ||||
Total stockholders equity (deficit) |
281,584 | (136,304 | ) | |||||
TOTAL LIABILITIES AND STOCKHOLDERS EQUITY (DEFICIT) |
$ | 998,857 | $ | 686,832 | ||||
The accompanying Notes to Consolidated Financial Statements are an integral part hereof.
4
HUMAN GENOME SCIENCES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
CONSOLIDATED STATEMENTS OF CASH FLOWS
Nine months ended September 30, | ||||||||
2008 | ||||||||
2009 | (As adjusted) | |||||||
(dollars in thousands) | ||||||||
Cash flows from operating activities: |
||||||||
Net income (loss) |
$ | 15,400 | $ | (207,007 | ) | |||
Adjustments to reconcile net income (loss) to net cash used in operating activities: |
||||||||
Stock-based compensation expense |
9,547 | 13,948 | ||||||
Depreciation and amortization |
16,092 | 15,653 | ||||||
Amortization of debt discount |
16,495 | 17,944 | ||||||
Charge for impaired investment |
1,250 | 6,049 | ||||||
Gain on extinguishment of debt |
(38,873 | ) | | |||||
Facility-related exit costs |
11,434 | | ||||||
Gain on sale of long-term equity investment |
(5,259 | ) | (32,518 | ) | ||||
Accrued interest on short-term investments, marketable securities and restricted investments |
635 | 1,170 | ||||||
Gain on sale of short-term investments and marketable securities |
(1,994 | ) | | |||||
Non-cash expenses and other |
3,103 | 1,634 | ||||||
Changes in operating assets and liabilities: |
||||||||
Accounts receivable |
(2,670 | ) | (8,682 | ) | ||||
Collaboration receivables |
12,191 | 14,522 | ||||||
Inventory |
(8,658 | ) | | |||||
Prepaid expenses and other assets |
516 | 1,573 | ||||||
Accounts payable and accrued expenses |
(17,419 | ) | 16,230 | |||||
Accrued payroll and related taxes |
1,528 | 1,586 | ||||||
Deferred revenues |
(29,185 | ) | (33,706 | ) | ||||
Accrued exit expenses |
(1,298 | ) | (1,590 | ) | ||||
Other liabilities |
1,422 | 1,486 | ||||||
Net cash used in operating activities |
(15,743 | ) | (191,708 | ) | ||||
Cash flows from investing activities: |
||||||||
Purchase of short-term investments and marketable securities |
(250,056 | ) | (15,065 | ) | ||||
Proceeds from sale and maturities of short-term investments and marketable securities |
139,107 | 150,256 | ||||||
Proceeds from sale of long-term equity investment |
5,259 | 47,336 | ||||||
Capital expenditures property, plant, and equipment |
(7,591 | ) | (8,540 | ) | ||||
Release of restricted investments |
3,291 | | ||||||
Net cash provided by (used in) investing activities |
(109,990 | ) | 173,987 | |||||
Cash flows from financing activities: |
||||||||
Purchase of restricted investments |
(25,503 | ) | (23,976 | ) | ||||
Proceeds from sale and maturities of restricted investments |
23,533 | 22,157 | ||||||
Proceeds from issuance of common stock |
380,262 | 4,035 | ||||||
Extinguishment of long-term debt |
(49,998 | ) | | |||||
Purchase of treasury stock |
(15 | ) | (105 | ) | ||||
Net cash provided by financing activities |
328,279 | 2,111 | ||||||
Net increase (decrease) in cash and cash equivalents |
202,546 | (15,610 | ) | |||||
Cash and cash equivalents- beginning of period |
15,248 | 34,815 | ||||||
Cash and cash equivalents- end of period |
$ | 217,794 | $ | 19,205 | ||||
The accompanying Notes to Consolidated Financial Statements are an integral part hereof.
5
SUPPLEMENTAL SCHEDULE OF CASH FLOW INFORMATION, NON-CASH OPERATING, INVESTING AND FINANCING
ACTIVITIES
Nine months ended September 30, | ||||||||
2009 | 2008 | |||||||
(dollars in thousands) | ||||||||
Cash paid during the period for: |
||||||||
Interest
|
$ | 25,416 | $ | 25,718 | ||||
Income taxes
|
$ | | $ | |
During the nine months ended September 30, 2009 and 2008, lease financing increased with respect to
the Companys leases with BioMed Realty Trust, Inc. (BioMed) by $1,641 and $1,808, respectively,
on a non-cash basis. Because the payments are less than the amount of the calculated interest
expense for the first nine years of the leases, the lease financing balance will increase during
this period.
During the nine months ended September 30, 2009 and 2008, the Company recorded non-cash accretion
of $862 and $367, respectively, related to its exit accrual for certain space.
The accompanying Notes to Consolidated Financial Statements are an integral part hereof.
6
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 1. Summary of Significant Accounting Policies
Basis of presentation
The accompanying unaudited consolidated financial statements of Human Genome Sciences, Inc. (the
Company) have been prepared in accordance with U.S. generally accepted accounting principles
for interim financial information. In the opinion of the Companys management, the consolidated
financial statements reflect all adjustments necessary to present fairly the results of
operations for the three and nine months ended September 30, 2009 and 2008, the Companys
financial position at September 30, 2009, and the cash flows for the nine months ended September
30, 2009 and 2008. These adjustments are of a normal recurring nature. Certain notes and other
information have been condensed or omitted from the interim consolidated financial statements
presented in this Quarterly Report on Form 10-Q. Therefore, these financial statements should
be read in conjunction with the audited financial statements included in the Companys Current
Report on Form 8-K (Exhibit 99.3) filed with the Securities and Exchange Commission on July 27,
2009 (July 2009 Form 8-K).
The results of operations for the three and nine months ended September 30, 2009 are not
necessarily indicative of future financial results. The Company anticipates that any
significant revenue or income through at least 2010 may be limited to raxibacumab (formerly
ABthraxTM) revenue, payments under collaboration agreements (to the extent
milestone are met), cost reimbursements from GlaxoSmithKline (GSK) and Novartis International
Pharmaceutical Ltd. (Novartis), payments from the license of product rights, payments under
manufacturing agreements, such as its agreement with Hospira, Inc., investment income and other
payments from other collaborators and licensees under existing or future arrangements, to the
extent that the Company enters into any future arrangements. The Company expects to continue to
incur substantial expenses relating to its research and development efforts and expects to incur
increased expenses relating to its commercialization efforts. As a result, the Company expects
to incur significant losses over at least the next two years unless it is able to realize
additional revenues under existing or any future agreements. The timing and amounts of such
revenues, if any, cannot be predicted with certainty and will likely fluctuate sharply. Results
of operations for any period may be unrelated to the results for any other period.
The Companys significant accounting policies are described in Note B of the Notes to the
Consolidated Financial Statements included in its consolidated financial statements included in
the July 2009 Form 8-K. In addition, the following additional significant accounting policies
are now applicable:
Revenue
Product sales
Revenue from product sales is recognized when persuasive evidence of an arrangement exists,
title to product and associated risk of loss has passed to the customer, the price is fixed or
determinable, collection from the customer is reasonably assured, and the Company has no further
performance obligations.
Manufacturing and development services
As part of its raxibacumab contract with the United States Government (USG) and the Biomedical
Advanced Research and Development Authority (BARDA), the Company performed a variety of drug
development services primarily relating to the conduct of animal and human studies. Upon
BARDAs acceptance of the initial raxibacumab delivery, the Company became entitled to bill the
USG for the drug development work previously performed, and recorded this as manufacturing and
development services revenue during the nine months ended September 30, 2009. The Company will
record additional development revenue as services are performed.
7
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 1. Summary of Significant Accounting Policies (continued)
The Company has entered into agreements with certain commercial parties for manufacturing
process development, clinical and commercial supply of certain biopharmaceutical products.
Revenue under these agreements is recognized as services are performed or products delivered,
depending on the nature of the work contracted, using a proportional performance method of
accounting. Performance is assessed using output measures such as units-of-work performed to
date as compared to total units-of-work contracted. Advance payments received in excess of
amounts earned are classified as deferred revenue until earned.
Cost of Sales
Cost of product sales
Except for raxibacumab as described below, the Company does not capitalize inventory costs
associated with commercial supplies of drug product until it has received marketing approval
from the U.S. Food and Drug Administration (FDA). Prior to these approvals, the cost of
manufacturing drug product is recognized as research and development expenses in the period that
the cost is incurred. Therefore, manufacturing costs incurred prior to product approval are not
included in cost of product sales when revenue is recognized from the sale of that drug product.
In the case of the raxibacumab initial order, the Company did not capitalize inventory costs as
it had manufactured all of the product prior to receiving USG authorization to ship to the
Strategic National Stockpile (SNS). The Company did not capitalize inventory costs associated
with additional production of raxibacumab until it received the follow-on order from the USG in
July 2009. Because raxibacumab has been authorized to ship to the SNS, the cost of
manufacturing additional drug product is recognized as cost of product sales when revenue is
recognized rather than research and development expenses in the period that the cost is
incurred.
Cost of product sales includes royalties paid or payable to third parties based on the sales
levels of certain products.
Cost of manufacturing and development services
Cost of manufacturing and development services represents costs associated with the Companys
contract manufacturing arrangements and other development services. The costs associated with
work previously performed to conduct animal and human studies for raxibacumab were recognized as
research and development expenses in the period that the costs were incurred. Therefore, these
pre-acceptance development costs are not included in cost of manufacturing and development
services for the nine months ended September 30, 2009. The Company is recording additional
raxibacumab development services costs as incurred.
Inventory
The Company has capitalized inventory costs incurred for raxibacumab produced subsequent to
receiving the follow-on order from the USG in July 2009. Inventory includes material, labor,
other direct and indirect costs and is valued using the first-in, first-out method. As of
September 30, 2009, the inventory balance of $8,658 represents work in process.
8
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 1. Summary of Significant Accounting Policies (continued)
Recent Accounting Pronouncements
In June 2009, the Financial Accounting Standards Board (FASB) issued The FASB Accounting
Standards CodificationTM and the Hierarchy of Generally Accepted Accounting
Principles, a replacement of FASB Statement No. 162 (FASB ASC or Codification). The
Codification, which was released on July 1, 2009, became the single source of authoritative
non-governmental U.S. generally accepted accounting principles (U.S. GAAP), superseding
various existing authoritative accounting pronouncements. The Codification eliminates the U.S.
GAAP hierarchy contained in FASB Statement No. 162 and establishes one level of authoritative
U.S. GAAP. All other literature is considered non-authoritative. This Codification is effective
for financial statements issued for interim and annual periods ending after September 15, 2009.
There has been no change to the Companys consolidated financial statements due to the
implementation of the Codification other than changes in reference to various authoritative
accounting pronouncements in the consolidated financial statements.
In
April 2009, the FASB issued authoritative accounting guidance on how to determine the fair
value of assets and liabilities in the current economic environment, which reemphasizes that the
objective of a fair value measurement remains an exit price. If the Company were to conclude
that there has been a significant decrease in the volume and level of activity of the asset or
liability in relation to normal market activities, quoted market values may not be
representative of fair value and the Company may conclude that a change in valuation technique
or the use of multiple valuation techniques may be appropriate. Additional guidance issued in
April 2009 modifies the requirements for recognizing other-than-temporarily impaired debt
securities and revises the existing impairment model for such securities by modifying the
current intent and ability indicator in determining whether a debt security is
other-than-temporarily impaired. The FASB also issued guidance to enhance the disclosure of
financial instruments for both interim and annual periods. The adoption of this guidance during
the nine months ended September 30, 2009 had no material effect on the Companys consolidated
results of operations, financial position or liquidity.
In June 2008, the FASB issued authoritative guidance which mandates a two-step process for
evaluating whether an equity-linked financial instrument or embedded feature is indexed to the
entitys own stock. The adoption of this guidance as of January 1, 2009 had no material effect
on the Companys consolidated results of operations, financial position or liquidity.
In February 2008, the FASB issued guidance which delayed the effective date of FASB ASC Topic
820, Fair Value Measurements and Disclosures, for most non-financial assets and non-financial
liabilities until fiscal years beginning after November 15, 2008. The implementation of FASB ASC
Topic 820 for non-financial assets and non-financial liabilities had no material effect on the
Companys consolidated results of operations, financial position or liquidity.
9
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 2. Change in Accounting for Convertible Debt
The FASBs authoritative guidance issued in June 2008 requires that the liability and equity
components of convertible debt instruments that may be settled in cash upon conversion
(including partial cash settlement) be separately accounted for in a manner that reflects an
issuers non-convertible debt borrowing rate. The resulting debt discount is amortized over the
period the convertible debt is expected to be outstanding as non-cash interest expense.
The Company adopted this guidance effective January 1, 2009 and retrospectively applied it to
all periods presented. As a result of the adoption, the Company recorded a debt discount of
$174,930 with an offsetting increase to stockholders equity (deficit) at the issue date of the
21/4% Convertible Subordinated Notes due October 2011 (21/4% Notes due 2011) and the 21/4%
Convertible Subordinated Notes due August 2012 (21/4% Notes due 2012). The debt discount is
being amortized to interest expense over the term of the convertible notes, resulting in an
effective interest rate of approximately 8.1% for the 21/4% Notes due 2011 and 9.7% for the 21/4%
Notes due 2012. The Company recorded an increase in additional paid-in capital of $169,651 and
an increase in accumulated deficit of $5,768 as of January 1, 2006. As a result, the Company
has adjusted its 2006, 2007 and 2008 consolidated financial statements.
The Companys net loss for the three months ended September 30, 2009 of $49,003, or $0.32 per
basic and diluted share, includes amortization of debt discount recorded as a result of this
adjustment of $5,332, or $0.03 per basic and diluted share. The Companys net income for the
nine months ended September 30, 2009 of $15,400, or $0.11 per basic and diluted share, includes
amortization of debt discount recorded as a result of this adjustment of $16,495, or $0.12 per
basic share and $0.11 per share diluted share.
The table below sets forth the effect of the retrospective application of the FASB guidance on
the applicable line items within the consolidated statement of operations:
Three months ended September 30, 2008 | ||||||||||||
As previously | ||||||||||||
reported | Adjustments | As adjusted | ||||||||||
Research and development expenses |
$ | 54,185 | $ | 137 | $ | 54,322 | ||||||
Income (loss) from operations |
(58,173 | ) | (137 | ) | (58,310 | ) | ||||||
Interest expense |
(9,880 | ) | (5,931 | ) | (15,811 | ) | ||||||
Net income (loss) |
(68,113 | ) | (6,068 | ) | (74,181 | ) | ||||||
Basic and diluted net income (loss) per share |
$ | (0.50 | ) | $ | (0.05 | ) | $ | (0.55 | ) | |||
Nine months ended September 30, 2008 | ||||||||||||
As previously | ||||||||||||
reported | Adjustments | As adjusted | ||||||||||
Research and development expenses |
$ | 194,194 | $ | 411 | $ | 194,605 | ||||||
Income (loss) from operations |
(204,683 | ) | (411 | ) | (205,094 | ) | ||||||
Interest expense |
(29,589 | ) | (17,377 | ) | (46,966 | ) | ||||||
Net income (loss) |
(189,219 | ) | (17,788 | ) | (207,007 | ) | ||||||
Basic and diluted net income (loss) per share |
$ | (1.40 | ) | $ | (0.13 | ) | $ | (1.53 | ) |
10
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 2. Change in Accounting for Convertible Debt (continued)
The table below sets forth the effect of the retrospective application of the FASB guidance on
the applicable line items within the consolidated statement of cash flows:
Nine months ended September 30, 2008 | ||||||||||||
As previously | ||||||||||||
reported | Adjustments | As adjusted | ||||||||||
Net income (loss) |
$ | (189,219 | ) | $ | (17,788 | ) | $ | (207,007 | ) | |||
Depreciation and amortization |
15,809 | (156 | ) | 15,653 | ||||||||
Amortization of debt discount |
| 17,944 | 17,944 |
Note 3. Comprehensive Income (Loss)
The Companys unrealized gains or losses on available-for-sale short-term investments,
marketable securities and long-term equity investments and cumulative foreign currency
translation adjustment activity are required to be included in other comprehensive income.
During the three and nine months ended September 30, 2009 and 2008, total comprehensive income
(loss) amounted to:
Three months ended | Nine months ended | |||||||||||||||
September 30, | September 30, | |||||||||||||||
2008 | 2008 | |||||||||||||||
2009 | (As adjusted) | 2009 | (As adjusted) | |||||||||||||
Net income (loss) |
$ | (49,003 | ) | $ | (74,181 | ) | $ | 15,400 | $ | (207,007 | ) | |||||
Net realized and unrealized gains (losses): |
||||||||||||||||
Short-term investments and marketable securities |
2,544 | (13,498 | ) | 11,149 | (14,262 | ) | ||||||||||
Long-term investments |
| (243 | ) | | (346 | ) | ||||||||||
Restricted investments |
308 | (670 | ) | 1,595 | (541 | ) | ||||||||||
Foreign currency translation |
2 | (17 | ) | 595 | 7 | |||||||||||
Subtotal |
2,854 | (14,428 | ) | 13,339 | (15,142 | ) | ||||||||||
Reclassification adjustments for (gains) losses
realized in net income (loss) |
134 | (651 | ) | (739 | ) | (721 | ) | |||||||||
Total comprehensive income (loss) |
$ | (46,015 | ) | $ | (89,260 | ) | $ | 28,000 | $ | (222,870 | ) | |||||
The effect of income taxes on items in other comprehensive income is $0 for all periods
presented.
11
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 4. Investments
Available-for-sale investments, including accrued interest, at September 30, 2009 and December
31, 2008 were as follows:
September 30, 2009 | ||||||||||||||||
Gross | Gross | |||||||||||||||
Amortized | Unrealized | Unrealized | Fair | |||||||||||||
Cost | Gains | Losses | Value | |||||||||||||
U.S. Treasury and agencies |
$ | 7,979 | $ | 13 | $ | | $ | 7,992 | ||||||||
Government-sponsored enterprise securities |
79,638 | 1,293 | (45 | ) | 80,886 | |||||||||||
Corporate debt securities |
102,314 | 688 | (594 | ) | 102,408 | |||||||||||
Subtotal Short-term investments |
189,931 | 1,994 | (639 | ) | 191,286 | |||||||||||
Government-sponsored enterprise securities |
101,868 | 2,113 | (99 | ) | 103,882 | |||||||||||
Corporate debt securities |
112,602 | 2,193 | (108 | ) | 114,687 | |||||||||||
Subtotal Marketable securities |
214,470 | 4,306 | (207 | ) | 218,569 | |||||||||||
Investment in VIA Pharmaceuticals |
| 36 | | 36 | ||||||||||||
Cash and cash equivalents |
11,033 | | | 11,033 | ||||||||||||
U.S. Treasury and agencies |
1,016 | 1 | | 1,017 | ||||||||||||
Government-sponsored enterprise securities |
10,441 | 352 | (1 | ) | 10,792 | |||||||||||
Corporate debt securities |
45,380 | 1,374 | (18 | ) | 46,736 | |||||||||||
Subtotal Restricted investments. |
67,870 | 1,727 | (19 | ) | 69,578 | |||||||||||
Total |
$ | 472,271 | $ | 8,063 | $ | (865 | ) | $ | 479,469 | |||||||
12
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 4. Investments (continued)
December 31, 2008 | ||||||||||||||||
Gross | Gross | |||||||||||||||
Amortized | Unrealized | Unrealized | Fair | |||||||||||||
Cost | Gains | Losses | Value | |||||||||||||
U.S. Treasury and agencies |
$ | 755 | $ | 27 | $ | | $ | 782 | ||||||||
Government-sponsored enterprise securities |
10,507 | 271 | (22 | ) | 10,756 | |||||||||||
Corporate debt securities |
11,421 | 29 | (297 | ) | 11,153 | |||||||||||
Subtotal Short-term investments |
22,683 | 327 | (319 | ) | 22,691 | |||||||||||
U.S. Treasury and agencies |
16,150 | 368 | (455 | ) | 16,063 | |||||||||||
Government-sponsored enterprise securities |
108,877 | 3,229 | (262 | ) | 111,844 | |||||||||||
Corporate debt securities |
145,621 | 263 | (8,151 | ) | 137,733 | |||||||||||
Subtotal Marketable securities |
270,648 | 3,860 | (8,868 | ) | 265,640 | |||||||||||
Investment in VIA Pharmaceuticals |
| 19 | | 19 | ||||||||||||
Cash and
cash equivalents |
5,773 | | | 5,773 | ||||||||||||
U.S. Treasury and agencies |
6,044 | 95 | | 6,139 | ||||||||||||
Government-sponsored enterprise securities |
18,145 | 403 | (11 | ) | 18,537 | |||||||||||
Corporate debt securities |
39,289 | 299 | (677 | ) | 38,911 | |||||||||||
Subtotal Restricted investments |
69,251 | 797 | (688 | ) | 69,360 | |||||||||||
Total |
$ | 362,582 | $ | 5,003 | $ | (9,875 | ) | $ | 357,710 | |||||||
See Note
7, Long-Term Debt, for the fair value of the Companys financial
liabilities.
The Companys restricted investments with respect to its headquarters (Traville) and
large-scale manufacturing (LSM) leases and for the small-scale manufacturing facility leases
will serve as collateral for a security deposit for the duration of the leases, although the
Company has the ability to reduce the restricted investments that are in the form of securities
for the Traville and LSM facility leases by substituting cash security deposits.
For the Traville and LSM leases, the Company is required to maintain restricted investments of
at least $46,000, or $39,500 if in the form of cash, in order to satisfy the security deposit
requirements of these leases. In addition, the Company is also required to maintain $15,000 in
restricted investments with respect to leases for its small-scale manufacturing facility. The
Companys restricted investments were $69,578 and $69,360 as of September 30, 2009 and December
31, 2008, respectively.
13
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 4. Investments (continued)
Short-term investments, Marketable securities and Restricted investments unrealized losses
The Companys gross unrealized losses and fair value of investments with unrealized losses were
as follows:
September 30, 2009 | ||||||||||||||||||||||||
Loss Position | Loss Position | |||||||||||||||||||||||
for Less Than | for Greater Than | |||||||||||||||||||||||
Twelve Months | Twelve Months | Total | ||||||||||||||||||||||
Fair | Unrealized | Fair | Unrealized | Fair | Unrealized | |||||||||||||||||||
Value | Losses | Value | Losses | Value | Losses | |||||||||||||||||||
Government-sponsored enterprise securities |
$ | 10,885 | $ | (45 | ) | $ | | $ | | $ | 10,885 | $ | (45 | ) | ||||||||||
Corporate debt securities |
14,440 | (15 | ) | 26,418 | (579 | ) | 40,858 | (594 | ) | |||||||||||||||
Subtotal Short-term investments |
25,325 | (60 | ) | 26,418 | (579 | ) | 51,743 | (639 | ) | |||||||||||||||
Government-sponsored enterprise securities |
27,950 | (99 | ) | | | 27,950 | (99 | ) | ||||||||||||||||
Corporate debt securities |
12,800 | (64 | ) | 4,029 | (44 | ) | 16,829 | (108 | ) | |||||||||||||||
Subtotal Marketable securities |
40,750 | (163 | ) | 4,029 | (44 | ) | 44,779 | (207 | ) | |||||||||||||||
Government-sponsored enterprise securities |
| | 387 | (1 | ) | 387 | (1 | ) | ||||||||||||||||
Corporate debt securities |
2,996 | (9 | ) | 1,024 | (9 | ) | 4,020 | (18 | ) | |||||||||||||||
Subtotal Restricted investments |
2,996 | (9 | ) | 1,411 | (10 | ) | 4,407 | (19 | ) | |||||||||||||||
Total |
$ | 69,071 | $ | (232 | ) | $ | 31,858 | $ | (633 | ) | $ | 100,929 | $ | (865 | ) | |||||||||
December 31, 2008 | ||||||||||||||||||||||||
Loss Position | Loss Position | |||||||||||||||||||||||
for Less Than | for Greater Than | |||||||||||||||||||||||
Twelve Months | Twelve Months | Total | ||||||||||||||||||||||
Fair | Unrealized | Fair | Unrealized | Fair | Unrealized | |||||||||||||||||||
Value | Losses | Value | Losses | Value | Losses | |||||||||||||||||||
Government-sponsored enterprise securities |
$ | | $ | | $ | 962 | $ | (22 | ) | $ | 962 | $ | (22 | ) | ||||||||||
Corporate debt securities |
6,543 | (284 | ) | 145 | (13 | ) | 6,688 | (297 | ) | |||||||||||||||
Subtotal Short-term investments |
6,543 | (284 | ) | 1,107 | (35 | ) | 7,650 | (319 | ) | |||||||||||||||
U.S. Treasury and agencies |
7,540 | (455 | ) | | | 7,540 | (455 | ) | ||||||||||||||||
Government-sponsored enterprise securities |
1,714 | (4 | ) | 11,259 | (258 | ) | 12,973 | (262 | ) | |||||||||||||||
Corporate debt securities |
77,637 | (4,597 | ) | 39,334 | (3,554 | ) | 116,971 | (8,151 | ) | |||||||||||||||
Subtotal Marketable securities |
86,891 | (5,056 | ) | 50,593 | (3,812 | ) | 137,484 | (8,868 | ) | |||||||||||||||
Government-sponsored enterprise securities |
2,975 | (5 | ) | 337 | (6 | ) | 3,312 | (11 | ) | |||||||||||||||
Corporate debt securities |
19,002 | (637 | ) | 4,016 | (40 | ) | 23,018 | (677 | ) | |||||||||||||||
Subtotal Restricted investments |
21,977 | (642 | ) | 4,353 | (46 | ) | 26,330 | (688 | ) | |||||||||||||||
Total |
$ | 115,411 | $ | (5,982 | ) | $ | 56,053 | $ | (3,893 | ) | $ | 171,464 | $ | (9,875 | ) | |||||||||
14
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 4. Investments (continued)
During the nine months ended September 30, 2009, the Company decided to sell a corporate bond in
its available-for-sale portfolio that had an unrealized loss. Upon making the decision to sell,
the Company recorded a charge for impaired investment of $1,250 which is reflected in the
consolidated statement of operations. The Company has evaluated its other investments and has
determined that no other investments have an other-than-temporary impairment, as it has no
intent to sell other securities with unrealized losses and it is not more likely than not that
the Company will be required to sell any additional securities with unrealized losses, given the
Companys current and anticipated financial position.
The Company owned 185 available-for-sale U.S. Treasury obligations, government-sponsored
enterprise securities and corporate debt securities at September 30, 2009. Of these 185
securities, 38 had unrealized losses at September 30, 2009.
The Companys equity investments in privately-held companies for which no readily available fair
value information is available are carried at cost. There were no events or circumstances
during the nine months ended September 30, 2009 that would have a significant adverse effect on
the fair value of these investments. Long-term equity investments of publicly-traded companies
are carried at market value based on quoted market prices and unrealized gains and losses for
these investments are reported as a separate component of stockholders equity until realized.
Other Information
The following table summarizes maturities of the Companys short-term investments, marketable
securities and restricted investments at September 30, 2009:
Short-term | Marketable | Restricted | ||||||||||||||||||||||
Investments | Securities | Investments | ||||||||||||||||||||||
Amortized | Fair | Amortized | Fair | Amortized | Fair | |||||||||||||||||||
Cost | Value | Cost | Value | Cost | Value | |||||||||||||||||||
Less than one year |
$ | 189,931 | $ | 191,286 | $ | | $ | | $ | 20,188 | $ | 20,394 | ||||||||||||
Due in year two through year three |
| | 138,744 | 141,877 | 40,628 | 41,784 | ||||||||||||||||||
Due in year four through year five |
| | 21,860 | 22,279 | 6,110 | 6,448 | ||||||||||||||||||
Due after five years |
| | 53,866 | 54,413 | 944 | 952 | ||||||||||||||||||
Total |
$ | 189,931 | $ | 191,286 | $ | 214,470 | $ | 218,569 | $ | 67,870 | $ | 69,578 | ||||||||||||
The Companys short-term investments include mortgage-backed securities with an aggregate cost
of $42,349 and an aggregate fair value of $43,476 at September 30, 2009. The Companys
marketable securities include mortgage-backed securities with an aggregate cost of $48,392 and
an aggregate fair value of $49,680 at September 30, 2009. The Companys restricted investments
include mortgage-backed securities with an aggregate cost of $4,625 and an aggregate fair value
of $4,778 at September 30, 2009. These securities have no single maturity date and,
accordingly, have been allocated on a pro rata basis to each maturity range based on each
maturity ranges percentage of the total value.
15
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 4. Investments (continued)
Realized gains and losses on securities sold before maturity, which are included in the
Companys investment income for the three and nine months ended September 30, 2009 and 2008, and
their respective net proceeds were as follows:
Three months ended September 30, | Nine months ended September 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Proceeds on sale of investments prior to maturity |
$ | 167,150 | $ | 76,197 | $ | 329,730 | $ | 133,222 | ||||||||
Realized gains |
41 | 734 | 1,718 | 988 | ||||||||||||
Realized losses |
(175 | ) | (83 | ) | (979 | ) | (267 | ) |
The cost of the securities sold is based on the specific identification method.
Note 5. Collaboration Agreements, License Agreement and U.S. Government Agreement
Collaboration Agreement with Novartis
During 2006, the Company entered into an agreement with Novartis for the co-development and
commercialization of ZALBINTM (formerly Albuferon®). Under the agreement,
the Company and Novartis will co-commercialize ZALBIN in the United States, and will share U.S.
commercialization costs and U.S. profits equally. Novartis will be responsible for
commercialization outside the U.S. and will pay the Company a royalty on those sales. The
Company will have primary responsibility for the bulk manufacture of ZALBIN, and Novartis will
have primary responsibility for commercial manufacturing of the finished drug product. The
Company is entitled to payments aggregating up to approximately $507,500, including a
non-refundable up-front license fee, upon the successful attainment of certain milestones. The
Company and Novartis share clinical development costs. The Company received an up-front license
fee of $45,000 in 2006. Including the up-front fee, as of September 30, 2009 the Company has
contractually earned and received payments aggregating $132,500. Subsequent to September 30,
2009, the Company achieved a development milestone under the agreement with Novartis which
entitles the Company to receive $75,000. The Company is recognizing these payments as revenue
ratably over the estimated remaining development period, estimated to end in the fall of 2010.
The Company recognized revenue of $8,852 and $26,556 for both the three and nine months ended
September 30, 2009 and 2008, respectively.
Collaboration Agreement with GSK
During 2006, the Company entered into an agreement with GSK for the co-development and
commercialization of BENLYSTATM (formerly LymphoStat-B®) arising from an
option GSK exercised in 2005, relating to an earlier collaboration agreement. The agreement
grants GSK a co-development and co-commercialization license, under which both companies will
jointly conduct activities related to the development and sale of products in the United States
and abroad. The Company and GSK will share in Phase 3 and 4 development costs, sales and
marketing expenses and profits of any product commercialized under the agreement. The Company
will have primary responsibility for bulk manufacturing and for commercial manufacturing of the
finished drug product. In July 2009, the Company completed one Phase 3 clinical trial and is
conducting a second Phase 3 clinical trial. In partial consideration of the rights granted to
GSK in this agreement, the Company received a non-refundable payment of $24,000 during 2006 and
is recognizing this payment as revenue over the remaining clinical development period, estimated
to end in 2010. The Company recognized revenue relating to this payment of $1,033 and $1,636 for
the three months ended September 30, 2009 and 2008, respectively. The Company recognized
revenue relating to this payment of $3,703 and $4,909 for the nine months ended September 30,
2009 and 2008, respectively.
16
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 5. Collaboration Agreements, License Agreement and U.S. Government Agreement (continued)
Collaboration reimbursements
Research and development expenses for the three months ended September 30, 2009 and 2008 are net
of $7,444 and $21,051, respectively, of costs reimbursed by Novartis and GSK. Research and
development expenses for the nine months ended September 30, 2009 and 2008 are net of $28,698
and $64,059, respectively, of costs reimbursed by Novartis and GSK.
U.S. Government Agreement
During 2006, the USG exercised its option under the second phase of a 2005 contract to purchase
20,001 doses of raxibacumab for the SNS. Under this two-phase contract, the
Company has supplied raxibacumab, a human monoclonal antibody developed for use in the treatment
of anthrax disease, to the USG. Under the first phase of the contract, the Company supplied ten
grams of raxibacumab to the U.S. Department of Health and Human Services (HHS) for comparative
in vitro and in vivo testing. In 2006, the Company received and recognized $308 of revenue
relating to the completion of testing of the evaluation material. Along with the cost to
manufacture the 20,001 therapeutic courses, the Company has incurred all of the costs to conduct
several animal and human studies as part of this contract. During the nine months ended
September 30, 2009, the Company received authorization from BARDA to ship raxibacumab to the SNS
and delivered all of the 20,001 doses. During the nine months ended September 30,
2009, the Company recognized $136,381 in product revenue and $26,050 in manufacturing and
development services revenue related to the work to conduct the animal and human studies and
other raxibacumab activities. The Company completed delivery under this contract during the
second quarter of 2009. The Company expects to receive approximately $10,000 if the Company
obtains licensure by FDA.
In July 2009, the USG agreed to purchase 45,000 additional doses of raxibacumab for the SNS,
to be delivered over a three-year period, beginning near the end of 2009. The Company expects to
receive approximately $152,000 from this order as deliveries are completed.
With respect to the initial 2006 order for raxibacumab, the Company incurred substantially all
of the product and service costs prior to 2009, and expensed these costs as incurred. The
Company incurred royalty costs in 2009, which are included in cost of product sales. In
addition, the Company has recorded as cost of product sales the expenses associated with
manufacturing additional raxibacumab, prior to receiving the follow-on order in July 2009.
Aegera Agreement
During 2007, the Company entered into a collaboration and license agreement with Aegera
Therapeutics, Inc. (Aegera) of Montreal, Canada under which the Company acquired exclusive
worldwide rights (excluding Japan) to develop and commercialize certain oncology molecules and
related backup compounds to be chosen during a three-year research period. Under the agreement,
the Company paid Aegera an aggregate of $20,000 for the license and for an equity investment in
Aegera. The Company allocated $16,852 to the license fee and $3,148 to the investment. The
value per share assigned to this investment was equal to the value per share obtained by Aegera
through external financing earlier in 2007. Aegera will be entitled to receive up to $295,000
in future development and commercial milestone payments, including a $5,000 milestone payment
made by the Company during 2008. Aegera will receive royalties on net sales in the Companys
territory. In North America, Aegera will have the option to co-promote with the Company, under
which Aegera will share certain expenses and profits in lieu of its royalties. The Company
incurred and expensed research costs of $584 and $562 related to the Aegera agreement during the
three months ended September 30, 2009 and 2008, respectively, and incurred and expensed research
costs of $1,751 and $1,686 during the nine months ended September 30, 2009 and 2008
respectively.
17
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 5. Collaboration Agreements, License Agreement and U.S. Government Agreement (continued)
Agreement with Teva Biopharmaceuticals USA, Inc. (formerly CoGenesys)
In 2008, Teva Pharmaceutical Industries Ltd. (Teva) acquired all the outstanding stock of
CoGenesys, Inc. (CoGenesys) and CoGenesys became a wholly-owned subsidiary of Teva called Teva
Biopharmaceutical USA, Inc. (Teva Bio). The Company had sold its CoGenesys division in 2006
and entered into a license agreement, as amended, and a manufacturing services agreement, as
amended, that are now with Teva Bio, and acquired an equity investment in CoGenesys valued at
$14,818. The Company allocated, based on estimated fair values, $7,575 of its consideration
received to the product license and manufacturing services agreements, which had been recognized
ratably over the term of the manufacturing services agreement, ending during the three months
ended June 30, 2009. The Company recognized revenue relating to these agreements of $673 during
the three months ended September 30, 2008 and $1,052 and $2,237 during the nine months ended
September 30, 2009 and 2008, respectively.
As a result of Tevas acquisition of CoGenesys, the Company received $47,336 as partial payment
for its equity investment in CoGenesys during the nine months ended September 30, 2008. The
agreement between CoGenesys and Teva provided for an escrow of a portion of the purchase price.
The Company received the final payment for its equity investment in CoGenesys during the first
quarter of 2009 and recorded a gain of $5,259.
Note 6. Collaboration Receivables
Collaboration receivables of $9,885 as of September 30, 2009 includes $9,265 in unbilled
receivables from Novartis and GSK in connection with the Companys cost-sharing agreements, and
other unbilled receivables. The $9,265 in unbilled receivables relates to net cost
reimbursements for the three months ended September 30, 2009.
Note 7. Long-Term Debt
As discussed in Note 2, Change in Accounting for Convertible Debt, new accounting guidance
impacted the carrying value of the Companys 21/4% Notes due 2011 and 21/4% Notes due 2012 for all
periods presented. As a result of the adoption of this guidance, the Company is amortizing the
debt discount of $174,930 over the term of the notes.
During the nine months ended September 30, 2009, the Company repurchased 21/4% Notes due 2011 with
a face value of $82,900 and 21/4% Notes due 2012 with a face value of $23,250 for an aggregate
cost of approximately $50,000 plus accrued interest. The repurchase resulted in a gain on
extinguishment of debt of $38,873, net of the related debt discount of $16,424 and deferred
financing charges of $855.
The amount of interest cost recognized relating to the contractual interest coupon obligation
for both convertible notes was $2,286 and $2,868 for the three months ended September 30, 2009
and 2008, respectively, and $7,082 and $8,606 for the nine months ended September 30, 2009 and
2008, respectively. The decrease from 2008 is due to the repurchase of a portion of the
convertible notes during the nine months ended September 30, 2009.
18
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 7. Long-Term Debt (continued)
The components of the convertible subordinated debt are as follows:
September 30, 2009 | ||||||||||||
Unamortized Debt | ||||||||||||
Debt | Face Value | Discount | Carrying Value | |||||||||
21/4% Notes due 2011 |
$ | 197,100 | $ | (21,484 | ) | $ | 175,616 | |||||
21/4% Notes due 2012 |
206,750 | (38,000 | ) | 168,750 | ||||||||
$ | 403,850 | $ | (59,484 | ) | $ | 344,366 | ||||||
December 31, 2008 | ||||||||||||
Unamortized Debt | ||||||||||||
Debt | Face Value | Discount | Carrying Value | |||||||||
21/4% Notes due 2011 |
$ | 280,000 | $ | (40,753 | ) | $ | 239,247 | |||||
21/4% Notes due 2012 |
230,000 | (51,650 | ) | 178,350 | ||||||||
$ | 510,000 | $ | (92,403 | ) | $ | 417,597 | ||||||
Note 8. Commitments and Other Matters
The Company is party to various claims and legal proceedings from time to time. The Company is
not aware of any legal proceedings that it believes could have, individually or in the
aggregate, a material adverse effect on its results of operations, financial condition or
liquidity.
Note 9. Facility-Related Exit Costs
As a result of the Companys facilities consolidation efforts, the Company has exited various
facility leases since 2004 and recorded exit and impairment charges relating to those exits.
During 2006, the Company exited certain of its headquarters space and in 2007, the Company
entered into an agreement to sublease a portion of this space. During the nine months ended
September 30, 2009, the subtenant delivered notice of early termination to the Company and
vacated the space. The subtenant paid an early termination fee which represents rent through
December 2009, and the Company has begun the search for a new subtenant. The Company reviews
the adequacy of its estimated exit accrual on an ongoing basis, and recorded a charge of $11,434
during the nine months ended September 30, 2009, primarily representing an increase in its exit
accrual as a result of the termination of the sublease. Along with an exit charge of $9,156
recorded in 2006, the cumulative exit charges for this space amount to $20,590 through September
30, 2009.
19
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 9. Facility-Related Exit Costs (continued)
The following table summarizes the activity related to the liability for exit expenses for the nine months ended September 30, 2009, all of which is facilities-related. Cash
items are net of early termination fees received from the subtenant.
Balance as of December 31, 2008 |
$ | 5,027 | ||
Accretion recorded |
862 | |||
Subtotal |
5,889 | |||
Cash items |
(1,490 | ) | ||
Accrual adjustment |
10,585 | |||
Balance as of September 30, 2009 |
14,984 | |||
Less current portion |
(7,022 | ) | ||
$ | 7,962 | |||
Note 10. Stockholders Equity (Deficit)
In August 2009, the Company completed a public offering of 26,697,250 shares of $0.01 par value
common stock at a price of $14.00 per share. The offering resulted in cash proceeds of
approximately $356,500, net of underwriting fees and offering expenses.
The Company has a stock incentive plan (the Incentive Plan) under which options to purchase
new shares of the Companys common stock may be granted to employees, consultants and directors
at an exercise price no less than the quoted market value on the date of grant. The Incentive
Plan also provides for awards in the form of stock appreciation rights, restricted (nonvested)
or unrestricted stock awards, stock-equivalent units or performance-based stock awards. The
Company issues both qualified and non-qualified options under the Incentive Plan. The Company
also has an Employee Stock Purchase Plan (the Purchase Plan).
Stock-based compensation expense related to employee stock options for the three and nine months
ended September 30, 2009 is not necessarily representative of the level of stock-based
compensation expense in future periods due to, among other things, (1) the vesting period of the
stock options and (2) the fair value of additional stock option grants in future years.
The Company recorded stock-based compensation expense pursuant to these plans of $3,226 and
$4,644 during the three months ended September 30, 2009 and 2008, respectively. The Company
recorded stock-based compensation expense pursuant to these plans of $9,547 and $13,948 during
the nine months ended September 30, 2009 and 2008, respectively. Stock-based compensation
relates to stock options, restricted stock units and restricted stock awards granted under the
Incentive Plan and stock acquired by employees through the Purchase Plan.
Under the Incentive Plan, 2,246,869 and 2,246,927 shares of common stock were issued as a result
of stock option exercises during the three and nine months ended September 30, 2009,
respectively, resulting in net proceeds to the Company of
approximately $23,328. The Company granted 140,300 stock options with a weighted-average grant date fair
value of $2.64 per share and 4,110,453 stock options with a weighted-average grant date fair
value of $0.44 per share under the Incentive Plan during the three and nine months ended
September 30, 2009, respectively.
20
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 10. Stockholders Equity (Deficit) (continued)
During the three months ended September 30, 2009, the Company did not award any restricted stock
units (RSUs). During the nine months ended September 30, 2009, the Company awarded 65,587
RSUs with a weighted-average grant date fair value of $0.52 per share. During the same period,
73,066 RSUs vested and the Company issued 44,344 shares of common stock to employees, net of
28,722 shares purchased to satisfy the employees tax liability related to the RSUs vesting.
This treasury stock was retired prior to September 30, 2009.
At September 30, 2009, the total authorized number of shares under the Incentive Plan, including
prior plans, was 54,778,056. Options available for future grant were 6,390,845 as of September
30, 2009.
Note 11. Fair Value of Financial Assets and Liabilities
The Company has adopted FASB guidance regarding the fair value of all assets and liabilities.
This guidance defines fair value, provides guidance for measuring fair value and requires
certain disclosures. This guidance does not require any new fair value measurements, but rather
applies to all other accounting pronouncements that require or permit fair value measurements.
This guidance does not apply to measurements related to share-based payments.
The FASB Codification discusses valuation techniques, such as the market approach (comparable
market prices), the income approach (present value of future income or cash flow), and the cost
approach (cost to replace the service capacity of an asset or replacement cost). The guidance
utilizes a fair value hierarchy that prioritizes the inputs to valuation techniques used to
measure fair value into three broad levels. The following is a brief description of those three
levels:
Level 1: Observable inputs such as quoted prices (unadjusted) in active markets for identical assets or liabilities. | ||
Level 2: Inputs other than quoted prices that are observable for the asset or liability, either directly or indirectly. These include quoted prices for similar assets or liabilities in active markets and quoted prices for identical or similar assets or liabilities in markets that are not active. | ||
Level 3: Unobservable inputs that reflect the reporting entitys own assumptions. |
Active markets are those in which transactions occur with sufficient frequency and volume to
provide pricing information on an ongoing basis. Inactive markets are those in which there are
few transactions for the asset, prices are not current, or price quotations vary substantially
either over time or among market makers, or in which little information is released publicly.
With regard to the Companys financial assets subject to fair value measurements, the Company
believes that all of the assets it holds are actively traded because there is sufficient
frequency and volume to obtain pricing information on an ongoing basis.
The Companys assets and liabilities subject to fair value measurements and the related fair
value hierarchy are as follows:
Fair Value Measurements as of | ||||||||||||||||
Fair Value | September 30, 2009 Using Fair | |||||||||||||||
as of | Value Hierarchy | |||||||||||||||
Description | September 30, 2009 | Level 1 | Level 2 | Level 3 | ||||||||||||
Cash and cash equivalents |
$ | 217,794 | $ | 217,794 | $ | | $ | | ||||||||
Short-term investments |
191,286 | 7,992 | 183,294 | | ||||||||||||
Marketable securities |
218,569 | | 218,569 | | ||||||||||||
Restricted investments |
69,578 | 12,050 | 57,528 | | ||||||||||||
Total |
$ | 697,227 | $ | 237,836 | $ | 459,391 | $ | | ||||||||
21
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 11. Fair Value of Financial Assets and Liabilities (continued)
The Company evaluates the types of securities in its investment portfolio to determine the
proper classification in the fair value hierarchy based on trading activity and the
observability of market inputs. The Companys Level 1 assets include cash, money market
instruments and U.S. Treasury securities. Level 2 assets include government-sponsored enterprise
securities, commercial paper, corporate bonds, asset-backed securities, and mortgage-backed
securities. The Companys privately-held equity investment is carried at cost and not included
in the table above, and is reviewed for impairment at each reporting date.
The Company generally obtains a single quote or price per instrument from independent third
parties to help it determine the fair value of securities in Level 1 and Level 2 of the fair
value hierarchy. The Companys Level 1 cash and money market instruments are valued based on
quoted prices from third parties, and the Companys Level 1 U.S. Treasury securities are valued
based on broker quotes. The Companys Level 2 assets are valued using a multi-dimensional
pricing model that includes a variety of inputs including actual trade data, benchmark yield
data, non-binding broker/dealer quotes, issuer spread data, monthly payment information,
collateral performance and other reference information. These are all observable inputs. The
Company reviews the values generated by the multi-dimensional pricing model for reasonableness,
which could include reviewing other publicly available information.
The Company does not hold auction rate securities, loans held for sale, mortgage-backed
securities backed by sub-prime or Alt-A collateral or any other investments which require the
Company to determine fair value using a discounted cash flow approach. Therefore, the Company
does not need to adjust its analysis or change its assumptions specifically to factor
illiquidity in the markets into its fair values.
The fair value of the Companys collaboration receivables, other assets, accounts payable and
accrued expenses approximate their carrying amount due to the relatively short maturity of these
items. The fair value of the Companys convertible subordinated debt is based on quoted market
prices. The quoted market price of the Companys convertible subordinated debt was
approximately $536,000 as of September 30, 2009. With respect to its lease financing, the
Company evaluated its incremental borrowing rate as of September 30, 2009, based on the current
interest rate environment and the Companys credit risk. The fair value of the BioMed lease
financing was approximately $290,000 as of September 30, 2009 based on a discounted cash flow
analysis, and current rates for corporate debt having similar characteristics and companies with
similar creditworthiness.
Note 12. Earnings Per Share
Basic net income (loss) per share is computed based on the weighted average number of common
shares outstanding during the period. Diluted net income (loss) per share is computed based on
the weighted average number of common shares outstanding and, if there is net income during the
period, the dilutive impact of common stock equivalents outstanding during the period. Common
stock equivalents can result from the assumed exercise of outstanding stock options, the assumed
conversion of convertible subordinated debt and the vesting of unvested restricted stock units.
Common stock issuable upon conversion of the Companys convertible subordinated notes were not
included in the calculation of diluted shares for the nine months ended September 30, 2009
because the effect would have been anti-dilutive. Common stock equivalents that were not
included in the calculation of diluted shares for the three months ended September 30, 2009 and
2008, because the effect would have been anti-dilutive, were 30,131,674 and 57,918,120,
respectively. Common stock equivalents that were not included in the calculation of diluted
shares for the nine months ended September 30, 2009 and 2008, because the effect would have been
anti-dilutive, were 46,398,150 and 60,476,662, respectively.
22
HUMAN GENOME SCIENCES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended September 30, 2009
(dollars in thousands, except per share data)
Note 12. Earnings Per Share (continued)
Basic and diluted net income (loss) per share were the same for the three months ended September
30, 2009 and September 30, 2008, as the effect of common stock equivalents would be
anti-dilutive. Diluted net income (loss) per share for the nine months ended September 30, 2009
and 2008 was determined as follows:
Nine months ended September 30, | ||||||||
2008 | ||||||||
2009 | (As adjusted) | |||||||
Numerator: |
||||||||
Net income (loss) |
$ | 15,400 | $ | (207,007 | ) | |||
Interest on convertible subordinated debt, if converted |
| | ||||||
Net income used for diluted net income (loss) per share |
$ | 15,400 | $ | (207,007 | ) | |||
Denominator: |
||||||||
Weighted average shares outstanding |
142,104,996 | 135,371,579 | ||||||
Effect of dilutive securities: |
||||||||
Convertible subordinated debt |
| | ||||||
Employee stock options and restricted stock units |
3,432,851 | | ||||||
Weighted average shares used for diluted net income (loss) per share |
145,537,847 | 135,371,579 | ||||||
Diluted net income (loss) per share |
$ | 0.11 | $ | (1.53 | ) | |||
Note 13. Reclassifications
Within the December 31, 2008 consolidated balance sheet, $2,804 has been reclassified from
collaboration receivables to accounts receivable and $67 has been reclassified from prepaid and
other assets to accounts receivable, respectively, to conform to current year presentation. The
effect of the reclassifications is not material to the consolidated financial statements.
Note 14. Subsequent Events
The Company has evaluated its subsequent events for disclosure in this Quarterly Report on Form
10-Q through October 29, 2009, the date the financial statements were issued. Subsequent to
September 30, 2009, the Company achieved a development milestone under the agreement with
Novartis which entitles the Company to receive $75,000. This milestone will be recognized as revenue over
the remaining development period, estimated to end in the fall of 2010. No other material events
have occurred during this period that would require recognition or additional disclosure in
these financial statements.
23
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Three and nine months ended September 30, 2009 and 2008
Overview
Human Genome Sciences, Inc. (HGS) is a commercially focused biopharmaceutical company. In
2009, we achieved our first product sales when we delivered raxibacumab (formerly
ABthraxTM) to the U.S. Strategic National Stockpile. We have two other products in
late-stage clinical development: ZALBINTM (formerly Albuferon®) for
chronic hepatitis C and BENLYSTATM (formerly LymphoStat-B®) for systemic
lupus erythematosus (SLE).
ZALBIN and BENLYSTA are progressing toward commercialization. In December 2008 and March
2009, we reported that ZALBIN successfully met its primary endpoint in two Phase 3 clinical
trials in chronic hepatitis C. We expect the filing of global marketing applications for ZALBIN
by the end of 2009. In July 2009 we reported that BENLYSTA successfully met its primary endpoint
in the first of two Phase 3 clinical trials in SLE. We expect to report the results of the
second Phase 3 clinical trial in November 2009. Assuming success in the second Phase 3 trial, we
plan to file global marketing applications for BENLYSTA in the first half of 2010.
We also have substantial financial rights to two novel drugs that GlaxoSmithKline (GSK)
has advanced to late-stage development. In December 2008, GSK initiated the first Phase 3
clinical trial of darapladib, which was discovered by GSK based on HGS technology, in more than
15,000 men and women with chronic coronary heart disease. GSK plans to initiate a second large
Phase 3 trial of darapladib in late 2009. In February 2009, GSK initiated a Phase 3 clinical
trial program for Syncria® (albiglutide) in the long-term treatment of type 2 diabetes
mellitus. Syncria was created by HGS using our proprietary albumin-fusion technology, and we
licensed Syncria to GSK in 2004.
HGS also has several novel drugs in earlier stages of clinical development for the treatment
of cancer, led by our TRAIL receptor antibody HGS-ETR1 and a small-molecule antagonist of IAP
(inhibitor of apoptosis) proteins.
Our strategic partnerships with leading pharmaceutical and biotechnology companies allow us
to leverage our strengths and gain access to sales and marketing infrastructure, as well as
complementary technologies. Some of these partnerships provide us with licensing or other fees,
clinical development cost-sharing, milestone payments and rights to royalty payments as products
are developed and commercialized. In some cases, we are entitled to certain commercialization,
co-promotion, revenue-sharing and other product rights.
During the nine months ended September 30, 2009, we achieved our first product sales as we
delivered 20,001 doses of raxibacumab to the U.S. Strategic National Stockpile
(SNS). We recorded revenue of $136.4 million for the product as well as services revenue of
$26.1 million for other work done to develop raxibacumab. In July 2009, the U.S. Government
(USG) agreed to purchase 45,000 additional doses of raxibacumab for the SNS,
to be delivered over a three-year period, beginning near the end of 2009. We expect to receive
approximately $152.0 million from this order as deliveries are completed. These orders arise from
a 2005 two-phase contract we entered into with the U.S. Government to supply raxibacumab, a human
monoclonal antibody developed for use in the treatment of anthrax disease.
During 2006, we entered into a collaboration agreement with Novartis International
Pharmaceutical Ltd. (Novartis). Under this agreement, Novartis will co-develop and
co-commercialize ZALBIN and share development costs, sales and marketing expenses and profits of
any product that is commercialized in the U.S. Novartis will be responsible for
commercialization outside the U.S. and will pay HGS a royalty on these sales. We received a
$45.0 million up-front fee from Novartis upon the execution of the agreement. Including this
up-front fee, we are entitled to
payments aggregating up to $507.5 million upon the successful attainment of certain
milestones. As of September 30, 2009, we have contractually earned and received payments
aggregating $132.5 million. Subsequent to September 30, 2009, we achieved a development
milestone which entitles us to receive an additional $75.0 million. We are recognizing these
payments as revenue ratably over the estimated remaining development period, estimated to end in
the fall of 2010.
24
Overview (continued)
In 2005, GSK exercised its option to co-develop and co-commercialize BENLYSTA. In
accordance with a co-development and co-commercialization agreement signed during 2006, we and
GSK will share Phase 3 and 4 development costs, and will share equally in sales and marketing
expenses and profits of any product that is commercialized. We received a $24.0 million payment
during 2006 as partial consideration for entering into this agreement with respect to BENLYSTA
and are recognizing this payment as revenue ratably over the development period, estimated to
end in 2010.
We expect that any significant revenue or income through at least 2010 may be limited to
raxibacumab revenue, payments under collaboration agreements (to the extent milestones are met),
cost reimbursements from GSK and Novartis, payments from the license of product rights, payments
under manufacturing agreements, such as our agreement with Hospira, Inc., investment income and
other payments from other collaborators and licensees under existing or future arrangements, to
the extent that we enter into any future arrangements, and possibly initial sales of BENLYSTA
and/or ZALBIN. We expect to continue to incur substantial expenses relating to our research and
development efforts and increased expenses relating to our commercialization efforts. As a
result, we expect to incur significant losses over at least the next two years unless we are
able to realize additional revenues under existing or any future agreements. The timing and
amounts of such revenues, if any, cannot be predicted with certainty and will likely fluctuate
sharply. Results of operations for any period may be unrelated to the results of operations for
any other period. In addition, historical results should not be viewed as indicative of future
operating results.
We adopted FASB ASC Topic 470 regarding equity-linked financial instruments effective
January 1, 2009. FASB ASC Topic 470 requires retrospective application to all periods
presented; therefore, we have adjusted our consolidated statement of operations and statement of
cash flows contained in our Form 10-Q for the periods ended September 30, 2008 and
we have also adjusted our consolidated balance sheet as of December 31, 2008 which is
contained in our consolidated financial statements included in the Current Report on Form 8-K
(Exhibit 99.3) filed with the Securities and Exchange Commission on July 27, 2009 (July 2009
Form 8-K). See Note 2, Change in Accounting for Convertible Debt, of the Notes to the
Consolidated Financial Statements for additional information. The effects of the application of
FASB ASC Topic 470 on the consolidated financial statements are reflected in Managements
Discussion and Analysis of Financial Condition and Results of Operations below.
Critical Accounting Policies and the Use of Estimates
A critical accounting policy is one that is both important to the portrayal of our
financial condition and results of operations and that requires managements most difficult,
subjective or complex judgments. Such judgments are often the result of a need to make
estimates about the effect of matters that are inherently uncertain. The preparation of our
financial statements in conformity with accounting principles generally accepted in the United
States requires management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ materially from those estimates. Our accounting policies
are described in more detail in Note B, Summary of Significant Accounting Policies, to our
consolidated financial statements included in the July 2009 Form 8-K. The following is an
update to those critical accounting policies for new activity in 2009:
Product sales
Revenue from product sales is recognized when persuasive evidence of an arrangement exists,
title to product and associated risk of loss has passed to the customer, the price is fixed or
determinable, collection from the customer is reasonably assured, and we have no further
performance obligations.
25
Critical Accounting Policies and the Use of Estimates (continued)
Manufacturing and development services
We have entered into agreements for manufacturing process development, clinical and
commercial supply of certain biopharmaceutical products. Revenue under these agreements is
recognized as services are performed or products delivered, depending on the nature of the work
contracted, using a proportional performance method of accounting. Performance is assessed using
output measures such as units-of-work performed to date as compared to total units-of-work
contracted. Advance payments received in excess of amounts earned are classified as deferred
revenue until earned.
Inventory
Inventory costs which are capitalized prior to receiving regulatory approval for a product
are fully reserved. Inventory costs associated with raxibacumab produced subsequent to receiving
the follow-on order from the USG are capitalized using the first-in, first-out method.
Results of Operations
Revenues. Revenues were $18.8 million and $11.7 million for the three months ended
September 30, 2009 and 2008, respectively. Revenues were $222.8 million and $35.5 million for
the nine months ended September 30, 2009 and 2008, respectively. Revenues for the three months
ended September 30, 2009 included $8.7 million from contract manufacturing services as well as
$8.9 million recognized from the Novartis agreement and $1.0 million recognized from the GSK
BENLYSTA agreement. Revenues for the three months ended September 30, 2008 included $8.9 million
recognized from the Novartis agreement and $1.6 million from the GSK BENLYSTA agreement.
Revenues for the nine months ended September 30, 2009 consisted primarily of $136.4 million in
raxibacumab product sales, $26.1 million related to raxibacumab development services, $19.2
million from contract manufacturing services, $26.6 million recognized from the Novartis
agreement and a $9.0 million milestone payment received and recognized from GSK related to
Syncria. Revenues for the nine months ended September 30, 2008 consisted primarily of $26.6
million recognized from the Novartis agreement and $4.9 million recognized from the GSK BENLYSTA
agreement.
Cost of sales. Cost of sales represents cost of manufacturing and development services of
$7.3 million for the three months ended September 30, 2009. Cost of sales includes both cost of
product sales of $14.6 million and cost of manufacturing and development services of $17.2
million for the nine months ended September 30, 2009. With respect to the initial 2006 order
for raxibacumab, we incurred substantially all of the product and service costs prior to 2009,
and expensed these costs as incurred. We incurred royalty costs in 2009, which are included in
cost of product sales. In addition, we have recorded as cost of product sales the expenses
associated with manufacturing additional raxibacumab incurred prior to receiving the follow-on
order in July 2009. Our manufacturing and development service costs include raxibacumab
development service costs incurred in 2009 and costs associated with contract manufacturing
services. There were no comparable costs in 2008 as we had no revenue from product sales or
manufacturing and development services. After approval of a product, cost of product sales will
include the various costs to manufacture the product, including raw materials, labor and
overhead.
Expenses. Research and development net expenses were $34.8 million for the three months
ended September 30, 2009 compared to $54.3 million for the three months ended September 30,
2008. Research and development net expenses were $131.4 million for the nine months ended
September 30, 2009 compared to $194.6 million for the nine months ended September 30, 2008. Our
research and development expenses for the three months ended September 30, 2009 and 2008 are net
of $7.4 million and $21.0 million, respectively, of costs reimbursed by Novartis and GSK. Our
research and development expenses for the nine months ended September 30, 2009 and 2008 are net
of $28.7 million and $64.1 million, respectively, of costs reimbursed by Novartis and GSK.
Research and development net expenses include our share of costs incurred by Novartis and GSK.
We track our research and development expenditures by type of cost incurred research,
pharmaceutical sciences, manufacturing and clinical development.
26
Results of Operations (continued)
Our research costs decreased to $4.3 million for the three months ended September 30, 2009
from $5.4 million for the three months ended September 30, 2008. Our research costs decreased
to $13.8 million for the nine months ended September 30, 2009 from $21.6 million for the nine
months ended September 30, 2008. The decrease for the three months ended September 30, 2009 is
primarily due to the conclusion of animal studies being conducted for raxibacumab in 2008. The
decrease for the nine months ended September 30, 2009 is primarily due to the conclusion of
animal studies being conducted for raxibacumab in 2008, and a $5.0 million milestone payment
made to Aegera Therapeutics, Inc. (Aegera) in 2008. Our research costs for the three months
ended September 30, 2009 and 2008 are net of $1.0 million and $0.3 million, respectively, of
cost reimbursement from Novartis and GSK under cost sharing provisions in our collaboration
agreements. Our research costs for the nine months ended September 30, 2009 and 2008 are net of
$2.4 million and $1.7 million, respectively, of cost reimbursement from Novartis and GSK under
cost sharing provisions in our collaboration agreements.
Our pharmaceutical sciences costs, where we focus on improving formulation, process
development and production methods, decreased to $6.9 million for the three months ended
September 30, 2009 from $7.8 million for the three months ended September 30, 2008.
Pharmaceutical sciences costs decreased to $23.1 million for the nine months ended September 30,
2009 from $26.5 million for the nine months ended September 30, 2008. This decrease is
primarily due to decreased activity related to raxibacumab and ZALBIN, partially offset by
increased activity related to contract manufacturing services. Pharmaceutical sciences costs
for the three months ended September 30, 2009 and 2008 are net of $0.7 million and $0.9 million,
respectively, of cost reimbursement by Novartis and GSK under cost sharing provisions in our
collaboration agreements. Pharmaceutical sciences costs for the nine months ended September 30,
2009 and 2008 are net of $0.2 million and $1.4 million, respectively, of cost reimbursement from
Novartis and GSK under cost sharing provisions in our collaboration agreements.
Our manufacturing costs decreased to $9.9 million for the three months ended September 30,
2009 from $16.8 million for the three months ended September 30, 2008. Our manufacturing costs
decreased to $41.2 million for the nine months ended September 30, 2009 from $61.6 million for
the nine months ended September 30, 2008. This decrease is primarily due to decreased
production of raxibacumab, ZALBIN and BENLYSTA, partially offset by increased manufacturing
services activities. Our manufacturing costs for the three months ended September 30, 2009 and
2008 are net of $1.0 million and $6.5 million, respectively, of cost reimbursement from Novartis
and GSK under cost sharing provisions in our collaboration agreements. Our manufacturing costs
for the nine months ended September 30, 2009 and 2008 are net of $1.7 million and $12.3 million,
respectively, of cost reimbursement from Novartis and GSK under cost sharing provisions in our
collaboration agreements. Manufacturing costs may increase in future periods as costs to build
pre-approval commercial inventory are expensed as incurred.
Our clinical development costs decreased to $13.7 million for the three months ended
September 30, 2009 from $24.3 million for the three months ended September 30, 2008. Our
clinical development costs decreased to $53.3 million for the nine months ended September 30,
2009 from $84.9 million for the nine months ended September 30, 2008. The decrease is primarily
due to the substantial completion of our ZALBIN Phase 3 clinical trials in late 2008, completion
of the first Phase 3 BENLYSTA clinical trial and wind down of the second Phase 3 BENLYSTA
clinical trial during 2009 and decreased HGS-ETR1 clinical trial costs. Our clinical development
expenses for the three months ended September 30, 2009 and 2008 are net of $4.7 million and
$13.3 million, respectively, of cost reimbursement from Novartis and GSK under cost sharing
provisions in our collaboration agreements. Our clinical development expenses for the nine
months ended September 30, 2009 and 2008 are net of $24.4 million and $48.7 million,
respectively, of cost reimbursement from Novartis and GSK under cost sharing provisions in our
collaboration agreements. Clinical development costs may continue to decline as we complete the
last Phase 3 trial and await the initiation of new trials.
General and administrative expenses decreased to $14.7 million for the three months ended
September 30, 2009 from $15.7 million for the three months ended September 30, 2008. General
and administrative expenses decreased
to $41.8 million for the nine months ended September 30, 2009 compared to $46.0 million for
the nine months ended September 30, 2008. This decrease is primarily due to decreased legal
expenses associated with our patents, partially offset by increases in our pre-commercial launch
activities. General and administrative costs in future periods may increase as the level of
pre-commercial launch activities rises.
27
Results of Operations (continued)
Facility-related exit costs of $11.4 million for the nine months ended September 30, 2009
relate to an adjustment to the assumptions and facts underlying our accrual for certain formerly
subleased space. The charge of $11.4 million was the result of the subtenant vacating the space
during the nine months ended September 30, 2009.
Investment income decreased to $3.1 million for the three months ended September 30, 2009
compared to $6.0 million for the three months ended September 30, 2008. The decrease in
investment income for the three months ended September 30, 2009 was primarily due to lower
yields in 2009 as compared to 2008. Investment income decreased to $10.4 million for the nine
months ended September 30, 2009 from $18.6 million for the nine months ended September 30, 2008.
The decrease in investment income for the nine months ended September 30, 2009 was primarily
due to lower average investment balances and lower yields in 2009 as compared to 2008. Our
average investment balance for the remainder of 2009 will be higher than earlier in 2009 due to
the proceeds from our public offering.
Interest expense was $14.4 million and $15.8 million for the three months ended September
30, 2009 and 2008, respectively. Interest expense was $44.0 million and $47.0 million for the
nine months ended September 30, 2009 and 2008, respectively. Interest expense includes non-cash
interest expense related to amortization of debt discount of $5.3 million and $6.1 million for
three months ended September 30, 2009 and 2008, respectively, and non-cash interest expense
related to amortization of debt discount of $16.5 million and $18.0 million for nine months
ended September 30, 2009 and 2008, respectively, as a result of the adoption of FASB ASC Topic
470.
The charge for impaired investment of $1.3
million for the nine months ended September 30, 2009 was due to an other-than-temporary
impairment on a corporate bond investment. We sold the investment in July 2009. The charge for impaired investment of $6.0 million during the three and nine months ended
September 30, 2008 was due to an other-than-temporary impairment of our investment in debt
securities issued by Lehman Brothers Holdings, Inc.
The gain on extinguishment of debt of $38.9 million for the nine months ended September 30,
2009 relates to the repurchase of convertible subordinated debt due in 2011 and 2012 with a face
value of approximately $106.2 million for an aggregate cost of approximately $50.0 million plus
accrued interest. The gain on extinguishment of debt is net of write-offs of related debt
discount of $16.4 million and deferred financing charges of $0.9 million.
The gain on sale of long-term equity investment during the nine months ended September 30,
2009 and 2008 of $5.3 million and $32.5 million, respectively, relates to the 2008 sale of our
investment in CoGenesys, Inc. (CoGenesys). We received initial proceeds in February 2008 of
$47.3 million. Our cost basis in this investment was $14.8 million, resulting in a gain of
$32.5 million. The agreement between CoGenesys and Teva Pharmaceutical Industries Ltd. (Teva)
provided for an escrow of a portion of the purchase price. We received the final payment for
our equity investment in CoGenesys during the nine months ended September 30, 2009 and recorded
an additional gain of $5.3 million.
Other income of $0.2 million during the three months ended September 30, 2009 and other
expense of $0.3 million during the nine months ended
September 30, 2009 primarily represent
unrealized, non-cash foreign currency translation gains or losses related to our investment in
Aegera, which is denominated in Canadian dollars.
Net Income (Loss). We recorded a net loss of $49.0 million, or $0.32 per basic and diluted
share, for the three months ended September 30, 2009 compared to a net loss of $74.2 million, or
$0.55 per basic and diluted share, for the three months ended September 30, 2008. We recorded
net income of $15.4 million, or $0.11 per basic and diluted share, for the nine months ended
September 30, 2009 compared to a net loss of $207.0 million, or $1.53 per basic and diluted
share, for the nine months ended September 30, 2008. The decreased net loss for the three
months ended September 30, 2009 is primarily due to reduced research and development expenses
and increased contract manufacturing services revenue. The improvement from a net loss to net
income for the nine months ended September 30, 2009 compared to 2008 is primarily due to revenue
from raxibacumab, gain on extinguishment of debt and reduced expenses, partially offset by a
charge for facility-related exit costs.
28
Liquidity and Capital Resources
We had working capital of $330.4 million at September 30, 2009 compared to a working
capital shortfall of $52.5 million at December 31, 2008. The improvement in our working capital
is primarily due to the cash provided by our public offering of common stock in August 2009 of
approximately $356.5 million and our raxibacumab revenue of $162.4 million, net of $50.0 million
used in February 2009 to extinguish approximately $106.2 million of our convertible subordinated
debt.
We expect to continue to incur substantial expenses relating to our research and
development efforts, as we focus on clinical trials and manufacturing required for the
development of our active product candidates. We will also incur costs related to our
pre-commercial launch activities. In the event our working capital needs exceed our available
working capital, we can utilize our non-current marketable securities, which are classified as
available-for-sale. In July 2009, the USG agreed to purchase 45,000 additional doses of
raxibacumab for the SNS, to be delivered over a three-year period, beginning near the end of
2009. We expect to receive approximately $152.0 million from this order as deliveries are
completed. We may also receive payments under collaboration agreements, to the extent
milestones are met, which would further improve our working capital position. We continue to
evaluate our working capital position on an ongoing basis.
To minimize our exposure to credit risk, we invest in securities with strong credit ratings
and have established guidelines relative to diversification and maturity with the objectives of
maintaining safety of principal and liquidity. We do not invest in derivative financial
instruments or auction rate securities, and we generally hold our investments in debt securities
until maturity. The deterioration of the credit markets during 2008 had a detrimental effect on
our investment portfolio, but as of September 30, 2009 the gross unrealized losses on our
available-for-sale securities have decreased to $0.9 million from $9.9 million at December 31,
2008. In June 2009, we determined that one investment had incurred an other-than-temporary
impairment, and we recorded a charge for impairment of $1.3 million. We sold this security in
July 2009.
The amounts of expenditures that will be needed to carry out our business plan are subject
to numerous uncertainties, which may adversely affect our liquidity and capital resources. We
are conducting one Phase 3 trial and have several ongoing Phase 1 and Phase 2 trials and expect
to initiate additional trials in the future. Completion of these trials may extend several
years or more, but the length of time generally varies considerably according to the type,
complexity, novelty and intended use of the drug candidate. We estimate that the completion
periods for our Phase 1, Phase 2, and Phase 3 trials could span one year, one to two years and
two to four years, respectively. Some trials may take considerably longer to complete. The
duration and cost of our clinical trials are a function of numerous factors such as the number
of patients to be enrolled in the trial, the amount of time it takes to enroll them, the length
of time they must be treated and observed, and the number of clinical sites and countries for
the trial.
Our clinical development expenses are impacted by the clinical phase of our drug
candidates. Our expenses increase as our drug candidates move to later phases of clinical
development. The status of our clinical projects is as follows:
Clinical Trial Status as of September 30, (2) | ||||||||||
Product Candidate(1) | Indication | 2009 | 2008 | |||||||
ZALBIN |
Hepatitis C | Phase 3 | (3) | Phase 3 | ||||||
BENLYSTA |
Systemic Lupus Erythematosus | Phase 3 | (4) | Phase 3 | ||||||
BENLYSTA |
Rheumatoid Arthritis | Phase 2 | (5) | Phase 2 | (5) | |||||
Raxibacumab (ABthrax) |
Anthrax | (6 | ) | (6 | ) | |||||
HGS1029 |
Cancer | Phase 1 | (7 | ) | ||||||
HGS-ETR1 |
Cancer | Phase 2 | Phase 2 | |||||||
HGS-ETR2 |
Cancer | (8 | ) | Phase 1 |
(1) | Includes only candidates for which an Investigational New Drug (IND) application has been filed with the FDA. | |
(2) | Clinical Trial Status defined as when patients are being dosed. |
29
Liquidity and Capital Resources (continued)
(3) | Phase 3 results reported; pre-BLA (Biologics License Application (BLA)) activities underway. Phase 2 monthly dosing study underway. | |
(4) | Results from the first of two Phase 3 clinical trials reported; second Phase 3 trial results expected in November 2009. | |
(5) | Initial Phase 2 trial completed; treatment IND ongoing and further development under review. | |
(6) | Completed delivery of 20,001 doses of raxibacumab to the U.S. Strategic National Stockpile. In July 2009, the U.S. Government agreed to purchase 45,000 additional doses. The FDA indicated that the BLA has been filed and will receive priority review. | |
(7) | IND filed in December 2007 with respect to HGS1029 (formerly AEG40826). | |
(8) | Ongoing Phase 1 trial by National Institutes of Health; further development not anticipated. |
We identify our drug candidates by conducting numerous preclinical studies. We may conduct
multiple clinical trials to cover a variety of indications for each drug candidate. Based upon
the results from our trials, we may elect to discontinue clinical trials for certain indications
or certain drugs in order to concentrate our resources on more promising drug candidates.
We are advancing a number of drug candidates, including antibodies, an albumin fusion
protein and a small molecule, in part to diversify the risks associated with our research and
development spending. In addition, our manufacturing plants have been designed to enable
multi-product manufacturing capability. Accordingly, we believe our future financial
commitments, including those for preclinical, clinical or manufacturing activities, are not
substantially dependent on any single drug candidate. Should we be unable to sustain a
multi-product drug pipeline, our dependence on the success of a single drug candidate would
increase.
We must receive regulatory clearance to advance each of our products into and through each
phase of clinical testing. Moreover, we must receive regulatory approval to launch any of our
products commercially. In order to receive such approval, the appropriate regulatory agency
must conclude that our clinical data establish safety and efficacy and that our products and the
manufacturing facilities meet all applicable regulatory requirements. We cannot be certain that
we will establish sufficient safety and efficacy data to receive regulatory approval for any of
our drugs or that our drugs and the manufacturing facilities will meet all applicable regulatory
requirements.
Part of our business plan includes collaborating with others. For example, we entered into
a collaboration agreement in 2006 with Novartis to co-develop and co-commercialize ZALBIN.
Under this agreement, we will co-commercialize ZALBIN in the United States, and will share U.S.
commercialization costs and U.S. profits equally. Novartis will be responsible for
commercialization outside the U.S. and will pay us a royalty on those sales. We and Novartis
share clinical development costs. Including a non-refundable up-front license fee, we are
entitled to payments aggregating up to approximately $507.5 million upon successful attainment
of certain milestones. As of September 30, 2009, we have contractually earned and received
milestones aggregating $132.5 million including the up-front fee. Subsequent to September 30,
2009, we achieved a development milestone which entitles us to receive $75.0 million. In 2006,
we entered into a collaboration agreement with GSK with respect to BENLYSTA and received a
payment of $24.0 million. We and GSK share phase 3 and 4 development costs, and will share in
sales and marketing expenses and profits of any product that is commercialized. During the nine
months ended September 30, 2009, we recorded approximately $28.7 million of reimbursable
expenses from Novartis and GSK with respect to our cost sharing agreements as a reduction of
research and development expenses. We are recognizing the up-front fees and milestones received
from Novartis and GSK as revenue ratably over the estimated remaining development period.
We have other collaborators who have sole responsibility for product development. For
example, GSK is developing other products under separate agreements as part of our overall
relationship with them. We have no control over the progress of GSKs development plans. We
cannot forecast with any degree of certainty whether any of our current or future collaborations
will affect our drug development.
Because of the uncertainties discussed above, the costs to advance our research and
development projects are difficult to estimate and may vary significantly. We expect that our
existing funds, payments to be received under the raxibacumab contract and other agreements and
investment income will be sufficient to fund our operations for at least the next twelve months.
Assuming there are no material changes to our capital structure prior to the end of this
30
Liquidity and Capital Resources (continued)
fiscal year, we expect our cash, cash equivalents, short-term investments, marketable securities
and restricted investments to be at least $687.0 million at December 31, 2009.
Our future capital requirements and the adequacy of our available funds will depend on many
factors, primarily including the scope and costs of our clinical development programs, the scope
and costs of our manufacturing and process development activities, the magnitude of our
discovery and preclinical development programs and the level of our pre-commercial launch
activities. There can be no assurance that any additional financing required in the future will
be available on acceptable terms, if at all.
Depending upon market and interest rate conditions, we are exploring, and, from time to
time, may take actions to strengthen further our financial position. We may undertake
financings and may repurchase or restructure some or all of our outstanding convertible debt
instruments in the future depending upon market and other conditions. In February 2009 we
repurchased approximately $106.2 million in face value of our convertible subordinated debt due
in 2011 and 2012 at a cost of approximately $50.0 million plus accrued interest. In August
2009, we completed a public offering of 26,697,250 shares of $0.01 par value common stock at a
price of $14.00 per share. The offering resulted in cash proceeds of approximately $356.5
million, net of underwriting fees and offering expenses.
We have certain contractual obligations which may have a future effect on our financial
condition, changes in financial condition, results of operations, liquidity, capital
expenditures or capital resources that are material to investors. Our operating leases, along
with our unconditional purchase obligations, are not recorded on our balance sheets. Debt
associated with the sale and accompanying leaseback of our large-scale manufacturing facility
(LSM) to BioMed in 2006 is recorded on our balance sheet as of September 30, 2009 and December
31, 2008. Under the LSM lease, we have an option to purchase the property between 2009 and 2010
at prices ranging between approximately $254.9 million and $269.5 million, depending upon when
we exercise this option. We have an option to purchase the Traville facility in 2016 for $303.0
million.
Our unrestricted and restricted funds may be invested in U.S. Treasury securities,
government agency obligations, high grade debt securities and various money market instruments
rated A- or better. Such investments reflect our policy regarding the investment of liquid
assets, which is to seek a reasonable rate of return consistent with an emphasis on safety,
liquidity and preservation of capital.
Off-Balance Sheet Arrangements
During 1997 and 1999, we entered into two long-term leases with the Maryland Economic
Development Corporation (MEDCO) expiring January 1, 2019 for a process development and
small-scale manufacturing facility aggregating 127,000 square feet and built to our
specifications. We have accounted for these leases as operating leases. The facility was
financed primarily through a combination of bonds issued by MEDCO (MEDCO Bonds) and loans
issued to MEDCO by certain State of Maryland agencies. We have no equity interest in MEDCO.
Rent is based upon MEDCOs debt service obligations and annual base rent under the leases
currently is approximately $3.8 million. The MEDCO Bonds are secured by letters of credit
issued for the account of MEDCO which expire in December 2009. MEDCOs debt service obligations
may be affected by prevailing interest rate conditions, which could in turn affect our rent and
the level of our restricted investments. Under the current letters of credit we are required to
maintain restricted investments of $15.0 million which serve as additional security for the
MEDCO letters of credit reimbursement obligation, and have restricted investments of
approximately $16.2 million and $15.7 million as of September 30, 2009 and December 31, 2008,
respectively. Upon default or early lease termination or in the event the letters of credit will
not be renewed, the MEDCO Bond indenture trustee can draw upon the letters of credit to pay the
MEDCO Bonds as they are tendered. In such an event, we could lose part or all of our restricted
investments and could record a charge to earnings for a corresponding amount. Alternatively, we
have an option during or at the end of the lease term to purchase this facility for an aggregate
amount that declines from approximately $38.0 million in 2009 to approximately $21.0 million in
2019. We are currently negotiating with a lender to extend and replace the expiring letters of
credit. If the transaction closes, we expect to increase our restricted investments by approximately $18.0 million.
The lease agreements contain covenants with respect to tangible net worth, cash and cash
equivalents and investment securities, restrictions on dividends, as well as other covenants.
31
Safe Harbor Statement Under the Private Securities Litigation Reform Act of 1995
Certain statements contained in Managements Discussion and Analysis of Financial
Condition and Results of Operations are forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. The forward-looking statements are based on our current
intent, belief and expectations. These statements are not guarantees of future performance and
are subject to certain risks and uncertainties that are difficult to predict. Actual results
may differ materially from these forward-looking statements because of our unproven business
model, our dependence on new technologies, the uncertainty and timing of clinical trials, our
ability to develop and commercialize products, our dependence on collaborators for services and
revenue, our substantial indebtedness and lease obligations, our changing requirements and costs
associated with facilities, intense competition, the uncertainty of patent and intellectual
property protection, our dependence on key management and key suppliers, the uncertainty of
regulation of products, the impact of future alliances or transactions and other risks described
in this filing and our other filings with the Securities and Exchange Commission. Existing and
prospective investors are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of todays date. We undertake no obligation to update or revise
the information contained in this announcement whether as a result of new information, future
events or circumstances or otherwise.
32
Item 3. Quantitative and Qualitative Disclosures About Market Risk
We do not have operations of a material nature that are subject to risks of foreign
currency fluctuations. We do, however, have certain aspects of one remaining global clinical
study that is subject to risks of foreign currency fluctuations. We do not use derivative
financial instruments in our operations or investment portfolio. Our investment portfolio may
be comprised of U.S. Treasuries, government-sponsored enterprise securities, high-grade debt
having at least an A- rating at time of purchase and various money market instruments. The
short-term nature of these securities, which currently have an average term of approximately 8
months, decreases the risk of a material loss caused by a market change related to interest
rates.
We believe that a hypothetical 100 basis point adverse move (increase) in interest rates
along the entire interest rate yield curve would adversely affect the fair value of our cash,
cash equivalents, short-term investments, marketable securities and restricted investments by
approximately $4.6 million, or approximately 0.7% of the aggregate fair value of $697.2 million,
at September 30, 2009. For these reasons, and because these securities are generally held to
maturity, we believe we do not have significant exposure to market risks associated with changes
in interest rates related to our debt securities held as of September 30, 2009. We believe that
any market change related to our investment securities held as of September 30, 2009 is not
material to our consolidated financial statements. As of September 30, 2009, the yield on
comparable one-year investments was approximately 0.4% as compared to our current portfolio
yield of approximately 2.2%. Given the short-term nature of our investment securities, a
general decline in interest rates may adversely affect the interest earned from our portfolio as
securities mature and are replaced with securities having a lower interest rate.
To minimize our exposure to credit risk, we invest in securities with strong credit ratings
and have established guidelines relative to diversification and maturity with the objectives of
maintaining safety of principal and liquidity. We do not invest in derivative financial
instruments, auction rate securities, loans held for sale or mortgage-backed securities backed
by sub-prime or Alt-A collateral, and we generally hold our investments in debt securities until
maturity. However, adverse changes in the credit markets relating to credit risks would
adversely affect the fair value of our cash, cash equivalents, marketable securities and
restricted investments. During the nine months ended September 30, 2009, the gross unrealized
losses in our portfolio decreased from $9.9 million to $0.9 million. The majority of these
unrealized losses related to our holdings of corporate debt securities. At September 30, 2009,
the fair value of our corporate debt securities was approximately $263.8 million, or 55% of our
total available-for-sale investment portfolio of $479.5 million. The remaining securities in our
portfolio are either U.S. Treasury and agency securities or government-sponsored enterprise
securities, which we believe are subject to less credit risk. In the event there is further
deterioration in the credit markets, the fair value of our corporate debt securities could
decline.
We have an equity investment in Aegera, which is a privately-held entity. We are unable to
obtain a quoted market price with respect to the fair value of this investment. Our investment
in Aegera is denominated in Canadian dollars and is subject to foreign currency risk. The
carrying value is adjusted at each reporting date based on current exchange rates, and was $2.9
million at September 30, 2009. We review the carrying value of the Aegera investment on a
periodic basis for indicators of impairment, and adjust the value accordingly.
The facility leases we entered into during 2006 require us to maintain minimum levels of
restricted investments of approximately $46.0 million, or $39.5 million if in the form of cash,
as collateral for these facilities. Together with the requirement to maintain up to
approximately $15.0 million in restricted investments with respect to our process development
and manufacturing facility leases, our overall level of restricted investments is currently
required to be approximately $61.0 million. Although the market value for these investments may
rise or fall as a result of changes in interest rates, we will be required to maintain this
level of restricted investments in either a rising or declining interest rate environment.
Our convertible subordinated notes bear interest at fixed rates. As a result, our
interest expense on these notes is not affected by changes in interest rates.
33
Item 3. Quantitative and Qualitative Disclosures About Market Risk (continued)
During 2002, we established a wholly-owned subsidiary, Human Genome Sciences Europe GmbH
(HGS Europe) that is assisting in our clinical trials and clinical research collaborations in
European countries. Although HGS Europes activities are denominated primarily in euros, we
believe the foreign currency fluctuation risks to be immaterial to our operations as a whole.
During 2005, we established a wholly-owned subsidiary, Human Genome Sciences Pacific Pty Ltd.
(HGS Pacific) that is sponsoring some of our clinical trials in the Asia/Pacific region. We
currently do not anticipate HGS Pacific to have any operational activity and therefore we do not
believe we will have any foreign currency fluctuation risks with respect to HGS Pacific.
Item 4. Controls and Procedures
Disclosure Controls and Procedures
Our management, including our principal executive and principal financial officers, has
evaluated the effectiveness of our disclosure controls and procedures as of September 30, 2009.
Our disclosure controls and procedures are designed to provide reasonable assurance that the
information required to be disclosed in this Quarterly Report on Form 10-Q has been
appropriately recorded, processed, summarized and reported within the time periods specified in
the Securities and Exchange Commissions rules and forms, and that such information is
accumulated and communicated to our management, including our principal executive and principal
financial officers, to allow timely decisions regarding required disclosure. Based on that
evaluation, our principal executive and principal financial officers have concluded that our
disclosure controls and procedures are effective at the reasonable assurance level.
Changes in Internal Control
Our management, including our principal executive and principal financial officers, has
evaluated any changes in our internal control over financial reporting that occurred during the
quarterly period ended September 30, 2009, and has concluded that there was no change that
occurred during the quarterly period ended September 30, 2009 that has materially affected, or
is reasonably likely to materially affect, our internal control over financial reporting.
34
PART II. OTHER INFORMATION
Item 1A. Risk Factors
There are a number of risk factors that could cause our actual results to differ materially
from those that are indicated by forward-looking statements. Those factors include, without
limitation, those listed below and elsewhere herein.
RISKS RELATED TO OUR BUSINESS
If we are unable to commercialize our Phase 3 and earlier development molecules, we may not be
able to recover our investment in our product development and manufacturing efforts.
We have invested significant time and resources to isolate and study genes and determine
their functions. We now devote most of our resources to developing proteins, antibodies and
small molecules for the treatment of human disease. We are also devoting substantial resources
to the maintenance of our own manufacturing capabilities, both to support clinical testing and
potential commercialization of our products. We have made and are continuing to make substantial
expenditures. Before we can commercialize a product, we must rigorously test the product in the
laboratory and complete extensive human studies. We cannot assure you that the tests and studies
will yield products approved for marketing by the FDA in the United States or similar regulatory
authorities in other countries, or that any such products will be profitable. We will incur
substantial additional costs to continue these activities. If we are not successful in
commercializing our Phase 3 and earlier development molecules, we may be unable to recover the
large investment we have made in research, development and manufacturing efforts.
If our second Phase 3 clinical trial for BENLYSTATM (formerly
Lymphostat-B®) is not successful, or we are unable to obtain marketing approval for
BENLYSTA or ZALBINTM (formerly Albuferon®), our results of operation and
business will be materially and adversely affected.
In July 2009, we reported the results from the first of our two Phase 3 clinical trials for
BENLYSTA. In that trial BENLYSTA met its primary efficacy endpoint. In November 2009, we
expect to disclose data from the second Phase 3 clinical trial for BENLYSTA. Although the
results of the July 2009 Phase 3 clinical trial were positive, there can be no guarantee that
the second Phase 3 clinical trial will meet its primary efficacy endpoint. If the results of the
second Phase 3 clinical trial for BENLYSTA are negative, we may not have sufficient data to file
a Biologics License Application (BLA) with the FDA. Even if we determine that the results from
the second trial are positive, the FDA may determine that the results from the two trials are
insufficient to file a BLA or do not support marketing approval or are insufficient to obtain
marketing approval. In March 2009, we reported the results from the second of our two Phase 3
clinical trials for ZALBIN. In that trial, as well as the trial we reported on in December 2008,
ZALBIN met its primary efficacy endpoint. In January 2008, we modified the dosing in our two
ZALBIN Phase 3 clinical trials. Patients who had been receiving the 1200-mcg dose were moved to
the 900-mcg dose based on a recommendation made by our independent Data Monitoring Committee.
The recommendation was based on the incidence rate of serious pulmonary adverse events in the
1200-mcg arm of the two ZALBIN trials. Despite our determination that the results from the two
ZALBIN trials were positive, the FDA may determine that the results are insufficient to file a
BLA or do not support marketing approval or are insufficient to obtain marketing approval. In
addition, our partners, Novartis for ZALBIN and GSK for BENLYSTA, may determine that the results
of these trials do not warrant further development or commercialization and may terminate their
respective collaboration agreements. If the results of these trials are not sufficient to
file a BLA and obtain marketing approval for either or both products or if either of our
partners terminates its collaboration agreement, our results of operations and business will be
materially adversely affected and we may not have sufficient resources to continue development
of these or other products.
Because our product development efforts depend on new and rapidly-evolving technologies, we
cannot be certain that our efforts will be successful.
Our work depends on new, rapidly evolving technologies and on the marketability and
profitability of innovative products. Commercialization involves risks of failure inherent in
the development of products based on innovative technologies and the risks associated with drug
development generally. These risks include the possibility that:
35
| these technologies or any or all of the Phase 3 and earlier development molecules based on these technologies will be ineffective or toxic, or otherwise fail to receive necessary regulatory clearances; | ||
| the products, even if safe and effective, will be difficult to manufacture on a large scale or uneconomical to market; | ||
| proprietary rights of third parties will prevent us or our collaborators from exploiting technologies or marketing products; and | ||
| third parties will market superior or equivalent products. |
Because we are a late-stage development company, we cannot be certain that we can develop our
business or achieve profitability.
We expect to continue to incur losses and we cannot assure you that we will ever become
profitable on a sustainable basis. A number of our products are in late-stage development;
however, it will be several years, if ever, before we are likely to receive continuing revenue
from product sales or substantial royalty payments. We will continue to incur substantial
expenses relating to research, development and manufacturing efforts and human studies.
Depending on the stage of development, our products may require significant further research,
development, testing and regulatory approvals. We may not be able to develop products that will
be commercially successful or that will generate revenue in excess of the cost of development.
We are continually evaluating our business strategy, and may modify this strategy in light of
developments in our business and other factors.
We continue to evaluate our business strategy and, as a result, may modify this strategy in
the future. In this regard, we may, from time to time, focus our product development efforts on
different products or may delay or halt the development of various products. In addition, as a
result of changes in our strategy, we may also change or refocus our existing drug discovery,
development, commercialization and manufacturing activities. This could require changes in our
facilities and personnel and the restructuring of various financial arrangements. For example,
in March 2009, we reduced the scope of efforts in a number of our programs. This reduction
should result in cost savings of approximately $18.0 million for fiscal year 2009, a portion of
which comes from a reduction in headcount. However, we cannot assure you that changes will
occur or that any changes that we implement will be successful.
Several years ago, we sharpened our focus on our most promising drug candidates. We reduced
the number of drugs in early development and focused our resources on the drugs that address the
greatest unmet medical needs with substantial growth potential. In 2006, we spun off our
CoGenesys division (CoGenesys) as an independent company, in a transaction that was treated as
a sale for accounting purposes. In 2008, CoGenesys was acquired by Teva Pharmaceuticals
Industries, Ltd. (Teva) and became a wholly-owned subsidiary of Teva called Teva
Biopharmaceuticals USA, Inc. (Teva Bio).
Our ability to discover and develop new products will depend on our internal research
capabilities and our ability to acquire products. Our internal research capability was reduced
when we completed the spin-off of CoGenesys. Although we continue to conduct research and
development activities on products, our limited resources for new products may not be sufficient
to discover and develop new drug candidates.
PRODUCT DEVELOPMENT RISKS
Because we have limited experience in developing and commercializing products, we may be
unsuccessful in our efforts to do so.
Although we are conducting human studies with respect to a number of products, we have
limited experience with these activities and may not be successful in developing or
commercializing these or other products. Our ability to develop and commercialize products based
on proteins, antibodies and small molecules will depend on our ability to:
| successfully complete laboratory testing and human studies; |
36
| obtain and maintain necessary intellectual property rights to our products; | ||
| obtain and maintain necessary regulatory approvals related to the efficacy and safety of our products; | ||
| maintain production facilities meeting all regulatory requirements or enter into arrangements with third parties to manufacture our products on our behalf; and | ||
| deploy sales and marketing resources effectively or enter into arrangements with third parties to provide these functions. |
Because clinical trials for our products are expensive and protracted and their outcome is
uncertain, we must invest substantial amounts of time and money that may not yield viable
products.
Conducting clinical trials is a lengthy, time-consuming and expensive process. Before
obtaining regulatory approvals for the commercial sale of any product, we must demonstrate
through laboratory, animal and human studies that the product is both effective and safe for use
in humans. We will incur substantial additional expense for and devote a significant amount of
time to conducting ongoing trials and initiating new trials.
Before a drug may be marketed in the United States, a drug must be subject to rigorous
preclinical testing. The results of this testing must be submitted to the FDA as part of an
investigational new drug application, which is reviewed by the FDA before clinical testing in
humans can begin. The results of preclinical studies do not predict clinical success. A number
of potential drugs have shown promising results in early testing but subsequently failed to
obtain necessary regulatory approvals. Data obtained from tests are susceptible to varying
interpretations, which may delay, limit or prevent regulatory approval. Regulatory authorities
may refuse or delay approval as a result of many other factors, including changes in regulatory
policy during the period of product development.
Completion of clinical trials may take many years. The time required varies substantially
according to the type, complexity, novelty and intended use of the product candidate. The
progress of clinical trials is monitored by both the FDA and independent data monitoring
committees, which may require the modification, suspension or termination of a trial if it is
determined to present excessive risks to patients. Our rate of commencement and completion of
clinical trials may be delayed by many factors, including:
| our inability to manufacture sufficient quantities of materials for use in clinical trials; | ||
| variability in the number and types of patients available for each study; | ||
| difficulty in maintaining contact with patients after treatment, resulting in incomplete data; | ||
| unforeseen safety issues or side effects; | ||
| poor or unanticipated effectiveness of products during the clinical trials; or | ||
| government or regulatory delays. |
To date, data obtained from our clinical trials may not be sufficient to support an
application for regulatory approval without further studies. Studies conducted by us or by third
parties on our behalf may not demonstrate sufficient effectiveness and safety to obtain the
requisite regulatory approvals for these or any other potential products. For example, we have
submitted a BLA to the FDA for raxibacumab (formerly ABthraxTM) and expect to submit a BLA for
ZALBIN, but the studies we have conducted to date may not be sufficient to obtain FDA approval.
In addition, based on the results of a human study for a particular product candidate,
regulatory authorities may not permit us to undertake any additional clinical trials for that
product candidate. The clinical trial process may also be accompanied by substantial delay and
expense and there can be no assurance that the data generated in these studies will ultimately
be sufficient for marketing approval by the FDA. For example, in 2005, we discontinued our
clinical development of LymphoRad131, a product candidate to treat cancer. We also
discontinued development of HGS-TR2J and returned all rights to Kirin Brewery Company, Ltd.
37
The development programs for ZALBIN and BENLYSTA have each involved two large-scale,
multi-center
Phase 3 clinical trials and have been more expensive than our Phase 1 and Phase 2 clinical
trials. In December 2008 and March 2009, we announced that we had completed the Phase 3
clinical studies for ZALBIN; in both studies, ZALBIN met its primary efficacy endpoint of
non-inferiority to peginterferon alfa-2a. In July 2009, we reported the results from the first
of our two Phase 3 clinical trials for BENLYSTA. In that trial, BENLYSTA met its primary
efficacy endpoint. We are still conducting a second Phase 3 clinical trial for BENLYSTA and
expect to disclose data in November 2009. We cannot assure you that we will be able to complete
our BENLYSTA Phase 3 clinical trials successfully or obtain FDA approval of ZALBIN or BENLYSTA,
or that FDA approval, if obtained, will not include limitations on the indicated uses for which
ZALBIN and/or BENLYSTA may be marketed.
We face risks in connection with our raxibacumab product in addition to risks generally
associated with drug development.
The development of raxibacumab presents risks beyond those associated with the development
of our other products. Numerous other companies and governmental agencies are known to be
developing biodefense pharmaceuticals and related products to combat anthrax disease. These
competitors may have financial or other resources greater than ours, and may have easier or
preferred access to the likely distribution channels for biodefense products. In addition, since
the primary purchaser of biodefense products is the U.S. Government and its agencies, the
success of raxibacumab will depend on government spending policies and pricing restrictions. The
funding of government biodefense programs is dependent, in part, on budgetary constraints,
political considerations and military developments. In the case of the U.S. Government,
executive or legislative action could attempt to impose production and pricing requirements on
us. We have entered into a two-phase contract, which may be terminated at any time, to supply
raxibacumab, a human monoclonal antibody developed for use in the treatment of anthrax disease,
to the U.S. Government. Under the first phase of the contract, we supplied ten grams of
raxibacumab to the U.S. Department of Health and Human Services (HHS) for comparative in vitro
and in vivo testing. Under the second phase of the contract, the U.S. Government ordered 20,001
doses of raxibacumab for the U.S. Strategic National Stockpile for use in the treatment of
anthrax disease. We completed delivery of these doses and the U.S. Government accepted our
deliveries. In July 2009, the U.S. Government agreed to purchase 45,000 additional doses.
We also received notification from the FDA that the BLA for raxibacumab has been filed and will
receive priority review. We, therefore, have future deliveries to make and ongoing obligations
under the contract, including the obligation to obtain FDA approval. We will continue to face
risks related to the requirements of the contract. If we are unable to meet our obligations
associated with this contract, the U.S. Government will not be required to make future payments
related to that order. Although we have received U.S. Government approval for two orders of
raxibacumab, we cannot assure you we will receive additional orders.
Because neither we nor any of our collaboration partners have received marketing approval for
any product candidate resulting from our research and development efforts, and because we may
never be able to obtain any such approval, it is possible that we may not be able to generate
any product revenue other than with respect to raxibacumab.
Although two of our potential products (raxibacumab and ZALBIN) have entered and completed
clinical trials, we cannot assure you that any of these products will receive marketing
approval. It is possible that we will not receive FDA marketing approval for any of our product
candidates even if the results of the clinical trials are positive. All products being
developed by our collaboration partners will also require additional research and development,
extensive preclinical studies and clinical trials and regulatory approval prior to any
commercial sales. In some cases, the length of time that it takes for our collaboration partners
to achieve various regulatory approval milestones may affect the payments that we are eligible
to receive under our collaboration agreements. We and our collaboration partners may need to
successfully address a number of technical challenges in order to complete development of our
products. Moreover, these products may not be effective in treating any disease or may prove to
have undesirable or unintended side effects, toxicities or other characteristics that may
preclude our obtaining regulatory approval or prevent or limit commercial use.
38
RISK FROM COLLABORATION RELATIONSHIPS AND STRATEGIC ACQUISITIONS
Our plan to use collaborations to leverage our capabilities and to grow in part through the
strategic acquisition of other companies and technologies may not be successful if we are unable
to integrate our partners capabilities or the acquired companies with our operations or if our
partners capabilities do not meet our expectations.
As part of our strategy, we intend to continue to evaluate strategic partnership
opportunities and consider acquiring complementary technologies and businesses. In order for our
future collaboration efforts to be successful, we must first identify partners whose
capabilities complement and integrate well with ours. Technologies to which we gain access may
prove ineffective or unsafe. Our current agreements that grant us access to such technology may
expire and may not be renewable or could be terminated if we or our partners do not meet our
obligations. These agreements are subject to differing interpretations and we and our partners
may not agree on the appropriate interpretation of specific requirements. Our partners may
prove difficult to work with or less skilled than we originally expected. In addition, any past
collaborative successes are no indication of potential future success.
In order to achieve the anticipated benefits of an acquisition, we must integrate the
acquired companys business, technology and employees in an efficient and effective manner. The
successful combination of companies in a rapidly changing biotechnology industry may be more
difficult to accomplish than in other industries. The combination of two companies requires,
among other things, integration of the companies respective technologies and research and
development efforts. We cannot assure you that this integration will be accomplished smoothly or
successfully. The difficulties of integration may be increased by any need to coordinate
geographically separated organizations and address possible differences in corporate cultures
and management philosophies. The integration of certain operations will require the dedication
of management resources which may temporarily distract attention from the day-to-day operations
of the combined companies. The business of the combined companies may also be disrupted by
employee retention uncertainty and lack of focus during integration. The inability of management
to integrate successfully the operations of the two companies, in particular, the integration
and retention of key personnel, or the inability to integrate successfully two technology
platforms, could have a material adverse effect on our business, results of operations and
financial condition.
We reacquired rights to HGS-ETR1 from GSK, as well as all rights to other TRAIL Receptor 1 and 2
antibodies. We may be unsuccessful in developing and commercializing products from these
antibodies without a collaborative partner.
As part of our September 1996 agreement with GSK, we granted a 50/50 co-development and
co-commercialization option to GSK for certain human therapeutic products that successfully
completed Phase 2a clinical trials. In August 2005, we announced that GSK had exercised its
option to develop and commercialize HGS-ETR1 (mapatumumab) jointly with us. In April 2008, we
announced that we had reacquired all rights to our TRAIL receptor antibodies (including rights
to HGS-ETR1 and HGS-ETR2) from GSK, in return for a reduction in royalties due to us if
Syncria®, a GSK product for which we would be owed royalties, is commercialized. We also
announced that our agreement with the pharmaceutical division of Kirin Brewery Company, Ltd. for
joint development of antibodies to TRAIL receptor 2 had been terminated. Takeda Pharmaceutical
Company, Ltd. has the right to develop HGS-ETR1 in Japan. As a result of these actions, we have
assumed full responsibility for the development and commercialization of products based on these
antibodies, except for HGS-ETR1 in Japan.
Our ability to receive revenues from the assets licensed in connection with our CoGenesys
transaction will now depend on Teva Bios ability to develop and commercialize those assets.
We will depend on Teva Bio to develop and commercialize the assets licensed as part of the
spin-off of CoGenesys. If Teva Bio is not successful in its efforts, we will not receive any
revenue from the development of these assets. In addition, our relationship with Teva Bio will
be subject to the risks and uncertainties inherent in our other collaborations.
39
Because we currently depend on our collaboration partners for substantial revenue, we may not
become profitable on a sustainable basis if we cannot increase the revenue from our
collaboration partners or other sources.
We have received substantial revenue from payments made under collaboration agreements with
GSK and Novartis, and to a lesser extent, other agreements. The research term of our initial GSK
collaboration agreement and many of our other collaboration agreements expired in 2001. None of
these collaboration agreements was renewed and we may not be able to enter into additional
collaboration agreements. While our partners under our initial GSK collaboration agreement
have informed us that they have been pursuing research programs involving different genes for
the creation of small molecule, protein and antibody drugs, we cannot assure you that any of
these programs will be continued or will result in any approved drugs.
Under our present collaboration agreements, we are entitled to certain development and
commercialization payments based on our development of the applicable product or certain
milestone and royalty payments based on our partners development of the applicable product. We
may not receive payments under these agreements if we or our collaborators fail to:
| develop marketable products; | ||
| obtain regulatory approvals for products; or | ||
| successfully market products. |
Further, circumstances could arise under which one or more of our collaboration partners
may allege that we breached our agreement with them and, accordingly, seek to terminate our
relationship with them. Our collaboration partners may also terminate these agreements without
cause or if competent scientific evidence or safety risks do not justify moving the applicable
product forward. If any one of these agreements terminates, this could adversely affect our
ability to commercialize our products and harm our business.
If one of our collaborators pursues a product that competes with our products, there could be a
conflict of interest and we may not receive milestone or royalty payments.
Each of our collaborators is developing a variety of products, some with other partners.
Our collaborators may pursue existing or alternative technologies to develop drugs targeted at
the same diseases instead of using our licensed technology to develop products in collaboration
with us. Our collaborators may also develop products that are similar to or compete with
products they are developing in collaboration with us. If our collaborators pursue these other
products instead of our products, we may not receive milestone or royalty payments. For
example, GSK has been developing for the treatment of insomnia an orexin inhibitor based on our
technology and to which we are entitled to milestones, royalties and co-promotion rights. In
July 2008, GSK announced a collaboration with Actelion Ltd. to co-develop and co-commercialize a
different orexin inhibitor. While GSK has stated publicly that it intends to continue work on
the inhibitor derived from our technology, there can be no assurance that it will continue to do
so or that such work will lead to a commercial product.
Since reimbursement payments from our collaborators will pay for approximately half of our
late-phase clinical trial expenses, our ability to develop and commercialize products may be
impaired if payments from our collaborators are delayed.
We have recently conducted and are conducting Phase 3 clinical development programs for
ZALBIN and BENLYSTA. These development programs include four Phase 3 large-scale, multi-center
clinical trials, only three of which have been completed. We rely on our collaborators to
reimburse us for approximately half of the expenditures related to these programs. To execute
our Phase 3 clinical trial programs, including the filings of BLAs, we increased our development
organization expenditures and increased our dependence on third-party contract clinical trial
providers. The collaboration agreements with our partners in the development of these two
products provide for the reimbursement of approximately half of these increased expenditures.
However, our collaborators may not agree with our expenses or may not perform their obligations
under our agreements with them. Further, it is difficult to accurately predict or control the
amount or timing of these expenditures, and uneven and unexpected spending on
40
these programs may cause our operating results to fluctuate from quarter to quarter. As a
result, if we are unable to obtain funding under these agreements on a timely basis, we may be
forced to delay, curtail or terminate these Phase 3 clinical trials or the filings of the BLAs,
which could adversely affect our ability to commercialize our products and harm our business.
FINANCIAL AND MARKET RISKS
Because of our substantial indebtedness and lease obligations, we may be unable to adjust our
strategy to meet changing conditions in the future.
As of September 30, 2009, we had long-term obligations on our balance sheet of
approximately $592.5 million of which $344.4 million ($403.9 million on a face value basis)
represents convertible subordinated debt and $248.1 million represents a long-term lease
financing for our large-scale manufacturing facility. During the year ended December 31, 2008,
we made cash interest and principal payments of $11.5 million on our indebtedness and during the
three months ended September 30, 2009, we made cash interest and principal payments of $2.3
million on our indebtedness. During the year ended December 31, 2008, we made cash payments of
$23.6 million on our long-term lease financing and during the three months ended September 30,
2009, we made cash payments of $6.0 million on our long-term lease financing. In addition, we
have operating leases, primarily our long-term operating lease for our headquarters, for which
we made cash payments of $27.6 million during the year ended December 31, 2008 and $5.5 million
during the three months ended September 30, 2009. Our substantial debt and long-term lease
obligations will have several important consequences for our future operations. For instance:
| payments of interest on, and principal of, our indebtedness and our long-term lease obligations will be substantial and may exceed then current income and available cash; | ||
| we may be unable to obtain additional future financing for continued clinical trials, capital expenditures, acquisitions or general corporate purposes; | ||
| we may be unable to withstand changing competitive pressures, economic conditions and governmental regulations; and | ||
| we may be unable to make acquisitions or otherwise take advantage of significant business opportunities that may arise. |
We may not have adequate resources available to repay our outstanding 21/4% Convertible
Subordinated Notes due 2011 (2011 Notes) and our outstanding 21/4% Convertible Subordinated
Notes due 2012 (2012 Notes) at maturity.
As of September 30, 2009, we had $403.9 million in face value of convertible subordinated
debt outstanding, with $197.1 million and $206.8 million due in 2011 and 2012, respectively.
Those notes are convertible into our common stock at conversion prices of approximately $15.55
and $17.78 per share, respectively. If our stock price does not exceed the applicable
conversion price of those notes, upon maturity, we may need to pay the note holders in cash or
restructure some or all of the debt. Since it may be several years, if ever, before we are
likely to receive continuing revenue from product sales other than for raxibacumab or
substantial royalty payments, we may not have enough cash, cash equivalents, short-term
investments and marketable securities available to repay our debt upon maturity.
To become a successful biopharmaceutical company, we may need additional funding in the future.
If we do not obtain this funding on acceptable terms, we may not be able to generate sufficient
revenue to repay our convertible debt, to launch and market successfully our products and to
continue our biopharmaceutical discovery and development efforts.
We continue to expend substantial funds on our research and development programs and human
studies on current and future drug candidates. If our Phase 3 clinical programs are successful,
we will begin to expend significant funds to support pre-launch and commercial marketing
activities. We may need additional financing to fund our operating expenses, including
pre-commercial launch activities, marketing activities, research and development and capital
requirements. In addition, even if our products are successful, if our stock price does not
41
exceed the applicable conversion price when our remaining convertible debt matures, we may
need to pay the note holders in cash or restructure some or all of the debt. If we are unable
to restructure the debt, we may not have enough cash, cash equivalents, short-term investments
and marketable securities available to repay the remaining debt. We may not be able to obtain
additional financing on acceptable terms either to fund operating expenses or to repay the
convertible debt. If we raise additional funds by issuing equity securities, equity-linked
securities or debt securities, the new equity securities may dilute the interests of our
existing stockholders and the new debt securities may contain restrictive financial covenants.
For example, in August 2009, we completed a public offering of 26,697,250 newly issued shares of
common stock.
Our need for additional funding will depend on many factors, including, without limitation:
| the amount of revenue or cost sharing, if any, that we are able to obtain from our collaborations, any approved products, and the time and costs required to achieve those revenues; | ||
| the timing, scope and results of preclinical studies and clinical trials; | ||
| the size and complexity of our development programs; | ||
| the time and costs involved in obtaining regulatory approvals; | ||
| the costs of launching our products; | ||
| the costs of commercializing our products, including marketing, promotional and sales costs; | ||
| the commercial success of our products; | ||
| our stock price; | ||
| our ability to establish and maintain collaboration partnerships; | ||
| competing technological and market developments; | ||
| the costs involved in filing, prosecuting and enforcing patent claims; and | ||
| scientific progress in our research and development programs. |
If we are unable to raise additional funds, we may, among other things:
| delay, scale back or eliminate some or all of our research and development programs; | ||
| delay, scale back or eliminate some or all of our commercialization activities; | ||
| lose rights under existing licenses; | ||
| relinquish more of, or all of, our rights to product candidates on less favorable terms than we would otherwise seek; and | ||
| be unable to operate as a going concern. |
Our short-term investments, marketable securities and restricted investments are subject to
certain risks which could materially adversely affect our overall financial position.
We invest our cash in accordance with an established internal policy and customarily in
instruments which historically have been highly liquid and carried relatively low risk. However,
the capital and credit markets have been experiencing extreme volatility and disruption. Over
the past two years, the volatility and disruption have reached unprecedented levels. We maintain
a significant portfolio of investments in short-term investments, marketable debt
42
securities and restricted investments, which are recorded at fair value. Certain of these
transactions expose us to credit risk in the event of default of the issuer. To minimize our
exposure to credit risk, we invest in securities with strong credit ratings and have established
guidelines relative to diversification and maturity with the objective of maintaining safety of
principal and liquidity. We do not invest in derivative financial instruments or auction rate
securities, and we generally hold our investments in debt securities until maturity. In
September 2008, Lehman Brothers Holdings, Inc. (LBHI) filed for bankruptcy and the debt
securities issued by LBHI experienced a significant decline in market value, which caused an
other-than-temporary impairment of our investment in LBHI. As a result, we recorded an
impairment charge of $6.3 million during 2008. In June 2009, we determined that another
investment had incurred an other-than-temporary impairment, and we recorded a charge for
impairment of $1.3 million. We sold this security in July 2009 and recorded an additional loss
of $0.1 million. In recent years, certain financial instruments, including some of the
securities in which we invest, have sustained downgrades in credit ratings and some high quality
short-term investment securities have suffered illiquidity or events of default. Deterioration
in the credit market may have an adverse effect on the fair value of our investment portfolio.
Should any of our short-term investments, marketable securities or restricted investments lose
significant value or have their liquidity impaired, it could materially and adversely affect our
overall financial position by imperiling our ability to fund our operations and forcing us to
seek additional financing sooner than we would otherwise. Such financing may not be available
on commercially attractive terms or at all.
Some of our operating leases contain financial and restrictive covenants, which may require us
to accelerate payment under those agreements or increase the amount of our security deposits and
reduce our flexibility or limit our activities.
Certain of our lease agreements contain covenants with respect to tangible net worth, cash
and cash equivalents and investment securities, restrictions on dividends, as well as other
covenants. Under the leases for our process development and small-scale manufacturing facility,
we must maintain minimum levels of unrestricted cash, cash equivalents, marketable securities
and net worth. During 2007, we amended certain of these leases to eliminate the minimum net
worth covenant and adjust the minimum levels of unrestricted cash, cash equivalents and
marketable securities required under the leases. We also pledged additional collateral to
another lessor to satisfy the minimum net worth covenant associated with certain other leases.
With respect to the small-scale manufacturing facility lease, we increased the amount of our
security deposits in 2007 by approximately $1.0 million, raising the level in 2007 to $15.0
million. Under certain circumstances pertaining to this facility lease, if we do not elect to
purchase the facility, we could lose either a portion or all of our restricted investments and
record a charge to earnings for such a loss. In addition, our letters of credit for the
financing of our small-scale manufacturing facility lease expire in December 2009. If we are
not successful in negotiating new letters of credit, we may be required to purchase the
facility. If we are successful in negotiating new letters of credit, the amount of our security
deposits and the cost associated with those letters of credit may increase.
Our insurance policies are expensive and protect us only from some business risks, which could
leave us exposed to significant, uninsured liabilities.
We do not carry insurance for all categories of risk that our business may encounter. We
currently maintain general liability, property, auto, workers compensation, product liability,
fiduciary and directors and officers insurance policies. We do not know, however, if we will
be able to maintain existing insurance with adequate levels of coverage. For example, the
premiums for our directors and officers insurance policy have increased in the past and may
increase in the future, and this type of insurance may not be available on acceptable terms or
at all in the future. Any significant uninsured liability may require us to pay substantial
amounts, which would adversely affect our cash position and results of operations.
We may be subject to product liability or other litigation, which could result in an inefficient
allocation of our critical resources, delay the implementation of our business strategy and, if
successful, materially and adversely harm our business and financial condition as a result of
the costs of liabilities that may be imposed thereby.
Our business exposes us to the risk of product liability claims. If any of our product
candidates harm people, or is alleged to be harmful, we may be subject to costly and damaging
product liability claims brought against us by clinical trial participants, consumers, health
care providers, corporate partners or others. We have product liability insurance covering our
ongoing clinical trials and raxibacumab, but do not have insurance for any of our other
43
commercial activities. If we are unable to obtain insurance at an acceptable cost or
otherwise protect against potential product liability claims, we may be exposed to significant
litigation costs and liabilities, which may materially and adversely affect our business and
financial position. If we are sued for injuries allegedly caused by any of our product
candidates, our litigation costs and liability could exceed our total assets and our ability to
pay. In addition, we may from time to time become involved in various lawsuits and legal
proceedings which arise in the ordinary course of our business. Any litigation to which we are
subject could require significant involvement of our senior management and may divert
managements attention from our business and operations. Litigation costs or an adverse result
in any litigation that may arise from time to time may adversely impact our operating results or
financial condition.
INTELLECTUAL PROPERTY RISKS
If our patent applications do not result in issued patents or if patent laws or the
interpretation of patent laws change, our competitors may be able to obtain rights to and
commercialize our discoveries.
Our pending patent applications, including those covering full-length genes and their
corresponding proteins, may not result in the issuance of any patents. Our applications may not
be sufficient to meet the statutory requirements for patentability in all cases or may be
subject to challenge, if they do issue. Important legal issues remain to be resolved as to the
extent and scope of available patent protection for biotechnology products and processes in the
United States and other important markets outside the United States, such as Europe and Japan.
In the United States, Congress is considering significant changes to U.S. intellectual property
laws which could affect the extent and scope of existing protections for biotechnology products
and processes. Foreign markets may not provide the same level of patent protection as provided
under the U.S. patent system. We expect that litigation or administrative proceedings will
likely be necessary to determine the validity and scope of certain of our and others
proprietary rights. We are currently involved in a number of litigation and administrative
proceedings relating to the scope of protection of our patents and those of others in both the
United States and in the rest of the world.
We are involved in a number of interference proceedings brought by the United States Patent
and Trademark Office (PTO) and may be involved in other interference proceedings in the
future. These proceedings determine the priority of inventions and, thus, the right to a patent
for technology in the U.S. For example, we are involved in interferences in the United States
with both Genentech, Inc. and Immunex Corporation, a wholly-owned subsidiary of Amgen, Inc.,
related to products based on TRAIL Receptor 2 (such as HGS-ETR2). In four of these
interferences, we had initiated district court litigation to review adverse decisions by the
PTO. In two of these cases, we were also seeking appellate review of a jurisdictional issue
decided by the district court. In light of the multiple adverse judgments by the PTO and
district court, we recently requested dismissal of both the district court and appellate
actions. Consequently we will not be able to obtain patent protection for TRAIL Receptor 2 from
any of the patents or patent applications involved in these litigations. The adverse judgments
in these litigations also may prevent us from obtaining other issued patents related to TRAIL
Receptor 2.
We are also involved in proceedings in connection with foreign patent filings, including
opposition and revocation proceedings and may be involved in other opposition proceedings in the
future. For example, we are involved in European opposition proceedings against an issued
patent of Biogen Idec. In this opposition, the European Patent Office (EPO) found the claims
of Biogen Idecs patent to be valid. The claims relate to a method of treating autoimmune
diseases using an antibody to BLyS (such as BENLYSTA). We and GSK have entered into a
definitive license agreement with Biogen Idec that provides for an exclusive license to this
European patent. This patent is still under appeal in Europe. We also have been involved in an
opposition proceeding brought by Eli Lilly and Company with respect to our European patent
related to BLyS compositions, including antibodies. In 2008, the Opposition Division of the EPO
held our patent invalid. We appealed this decision, and in
October 2009, a Technical Board of
Appeal of the EPO reversed the Opposition Division decision and held that our European patent
is valid. Although decisions of a Technical Board of Appeal can be
appealed only in limited circumstances, Eli Lilly may appeal this
decision. In addition, Eli Lilly instituted a revocation proceeding against our
United Kingdom patent that corresponds to our BLyS European patent; in this proceeding the
United Kingdom trial court found the patent invalid. We have appealed
this decision. The UK Court of Appeal will independently review our
European patent and may reach a different decision than the EPO
Technical Board of Appeal.
We have also opposed European patents issued to Genentech, Inc. and Immunex Corporation
related to products based on TRAIL Receptor 2, and Genentech, Inc. and Immunex Corporation have
opposed our European patent related to products based on TRAIL Receptor 2. Genentech, Inc.
also has opposed our Australian patent related to
44
products based on TRAIL Receptor 2. In addition, Genentech, Inc. has opposed our European
patent related to products based on TRAIL Receptor 1 (such as HGS-ETR1).
We cannot assure you that we will be successful in any of these proceedings. Moreover, any
such litigation or proceeding may result in a significant commitment of resources in the future
and could force us to do one or more of the following: cease selling or using any of our
products that incorporate the challenged intellectual property, which would adversely affect our
revenue; obtain a license from the holder of the intellectual property right alleged to have
been infringed, which license may not be available on reasonable terms, if at all; and redesign
our products to avoid infringing the intellectual property rights of third parties, which may be
time-consuming or impossible to do. In addition, such litigation or proceeding may allow others
to use our discoveries or develop or commercialize our products. Changes in, or different
interpretations of, patent laws in the United States and other countries may result in patent
laws that allow others to use our discoveries or develop and commercialize our products or
prevent us from using or commercializing our discoveries and products. We cannot assure you that
the patents we obtain or the unpatented technology we hold will afford us significant commercial
protection.
If others file patent applications or obtain patents similar to ours, then the United States
Patent and Trademark Office may deny our patent applications, or others may restrict the use of
our discoveries.
We are aware that others, including universities and companies working in the biotechnology
and pharmaceutical fields, have filed patent applications and have been granted patents in the
United States and in other countries that cover subject matter potentially useful or necessary
to our business. Some of these patents and patent applications claim only specific products or
methods of making products, while others claim more general processes or techniques useful in
the discovery and manufacture of a variety of products. The risk of third parties obtaining
additional patents and filing patent applications will continue to increase as the biotechnology
industry expands. We cannot predict the ultimate scope and validity of existing patents and
patents that may be granted to third parties, nor can we predict the extent to which we may wish
or be required to obtain licenses to such patents, or the availability and cost of acquiring
such licenses. To the extent that licenses are required, the owners of the patents could bring
legal actions against us to claim damages or to stop our manufacturing and marketing of the
affected products. We believe that there will continue to be significant litigation in our
industry regarding patent and other intellectual property rights. If we become involved in
litigation, it could consume a substantial portion of our resources.
Because issued patents may not fully protect our discoveries, our competitors may be able to
commercialize products similar to those covered by our issued patents.
Issued patents may not provide commercially meaningful protection against competitors and
may not provide us with competitive advantages. Other parties may challenge our patents or
design around our issued patents or develop products providing effects similar to our products.
In addition, others may discover uses for genes, proteins or antibodies other than those uses
covered in our patents, and these other uses may be separately patentable. The holder of a
patent covering the use of a gene, protein or antibody for which we have a patent claim could
exclude us from selling a product for a use covered by its patent.
We rely on our collaboration partners to seek patent protection for the products they develop
based on our research.
A significant portion of our future revenue may be derived from royalty payments from our
collaboration partners. These partners face the same patent protection issues that we and other
biotechnology or pharmaceutical companies face. As a result, we cannot assure you that any
product developed by our collaboration partners will be patentable, and therefore, revenue from
any such product may be limited, which would reduce the amount of any royalty payments. We also
rely on our collaboration partners to effectively prosecute their patent applications. Their
failure to obtain or protect necessary patents could also result in a loss of royalty revenue to
us.
45
If we are unable to protect our trade secrets, others may be able to use our secrets to compete
more effectively.
We may not be able to meaningfully protect our trade secrets. We rely on trade secret
protection to protect our confidential and proprietary information. We believe we have acquired
or developed proprietary procedures and materials for the production of proteins and antibodies.
We have not sought patent protection for these procedures. While we have entered into
confidentiality agreements with employees and collaborators, we may not be able to prevent their
disclosure of these data or materials. Others may independently develop substantially equivalent
information and processes.
REGULATORY RISKS
Because we are subject to extensive changing government regulatory requirements, we may be
unable to obtain government approval of our products in a timely manner.
Regulations in the United States and other countries have a significant impact on our
research, product development and manufacturing activities and will be a significant factor in
the marketing of our products. All of our products require regulatory approval prior to
commercialization. In particular, our products are subject to rigorous preclinical and clinical
testing and other premarket approval requirements by the FDA and similar regulatory authorities
in other countries, such as Europe and Japan. Various statutes and regulations also govern or
influence the manufacturing, safety, labeling, storage, record keeping and marketing of our
products. The lengthy process of seeking these approvals, and the subsequent compliance with
applicable statutes and regulations, require the expenditure of substantial resources. Any
failure by us to obtain, or any delay in obtaining, regulatory approvals could materially
adversely affect our ability to commercialize our products in a timely manner, or at all.
Marketing Approvals. Before a product can be marketed and sold in the United States, the
results of the preclinical and clinical testing must be submitted to the FDA for approval. This
submission will be either a new drug application or a biologics license application, depending
on the type of drug. In responding to a new drug application or a BLA, the FDA may grant
marketing approval, request additional information or deny the application if it determines that
the application does not provide an adequate basis for approval. We cannot assure you that any
approval required by the FDA will be obtained on a timely basis, or at all.
In addition, the FDA may condition marketing approval on the conduct of specific
post-marketing studies to further evaluate safety and efficacy. Rigorous and extensive FDA
regulation of pharmaceutical products continues after approval, particularly with respect to
compliance with current good manufacturing practices (cGMPs), reporting of adverse effects,
advertising, promotion and marketing. Discovery of previously unknown problems or failure to
comply with the applicable regulatory requirements may result in restrictions on the marketing
of a product or withdrawal of the product from the market as well as possible civil or criminal
sanctions, any of which could materially adversely affect our business.
Foreign Regulation. We must obtain regulatory approval by governmental agencies in other
countries prior to commercialization of our products in those countries. Foreign regulatory
systems may be just as rigorous, costly and uncertain as in the United States.
Because we are subject to environmental, health and safety laws, we may be unable to conduct our
business in the most advantageous manner.
We are subject to various laws and regulations relating to safe working conditions,
laboratory and manufacturing practices, the experimental use of animals, emissions and
wastewater discharges, and the use and disposal of hazardous or potentially hazardous substances
used in connection with our research, including radioactive compounds and infectious disease
agents. We also cannot accurately predict the extent of regulations that might result from any
future legislative or administrative action. Any of these laws or regulations could cause us to
incur additional expense or restrict our operations.
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OTHER RISKS RELATED TO OUR BUSINESS
Many of our competitors have substantially greater capabilities and resources and may be able to
develop and commercialize products before we do or develop generic drugs that are similar to our
products.
We face intense competition from a wide range of pharmaceutical and biotechnology
companies, as well as academic and research institutions and government agencies.
Principal competitive factors in our industry include:
| the quality and breadth of an organizations technology; | ||
| the skill of an organizations employees and ability to recruit and retain skilled employees; | ||
| an organizations intellectual property portfolio; | ||
| the range of capabilities, from target identification and validation to drug discovery and development to manufacturing and marketing; and | ||
| the availability of substantial capital resources to fund discovery, development and commercialization activities. |
Many large pharmaceutical and biotechnology companies have significantly larger
intellectual property estates than we do, more substantial capital resources than we have, and
greater capabilities and experience than we do in preclinical and clinical development, sales,
marketing, manufacturing and regulatory affairs.
We are aware of existing products and products in research or development by our
competitors that address the diseases we are targeting. Any of these products may compete with
our product candidates. Our competitors may succeed in developing their products before we do,
obtaining approvals from the FDA or other regulatory agencies for their products more rapidly
than we do, or developing products that are more effective than our products. These products or
technologies might render our technology or drugs under development obsolete or noncompetitive.
In addition, our albumin fusion protein product, ZALBIN, is designed to be a longer-acting
version of existing products. The existing products in many cases have an established market
that may make the introduction of ZALBIN more difficult.
If our products are approved and marketed, we may also face risks from generic drug
manufacturers. Legislation currently pending in the United States Congress and regulatory and
legislative activity in other countries may make it easier for generic drug manufacturers to
manufacture and sell in the United States biological drugs similar or identical to ZALBIN and
BENLYSTA, which might affect the profitability or commercial viability of our products.
If any of our product candidates for which we receive regulatory approval do not achieve broad
market acceptance (including as a result of failing to differentiate our products from
competitor products or as a result of failing to obtain reimbursement rates for our products
that are competitive from the healthcare providers perspective), the revenues we generate from
their sales will be limited and our business may not be profitable.
Our success will depend in substantial part on the extent to which our products for which
we obtain marketing approval from the FDA and comparable foreign regulatory authorities are
accepted by the medical community and reimbursed by third-party payors, including government
payors. The degree of market acceptance will depend upon a number of factors, including, among
other things:
| our products perceived advantages over existing treatment methods (including relative convenience and ease of administration and prevalence and severity of any adverse side effects including any unexpected side effects of which we become aware after marketing approval); | ||
| claims or other information (including limitations or warnings) in our products approved labeling; | ||
| reimbursement and coverage policies of government and other third-party payors; | ||
| pricing and cost-effectiveness; |
47
| in the United States, the ability of group purchasing organizations, or GPOs (including distributors and other network providers), to sell our products to their constituencies; | ||
| the establishment and demonstration in the medical community of the safety and efficacy of our products and our ability to provide acceptable evidence of safety and efficacy; | ||
| availability of alternative treatments; and | ||
| the prevalence of off-label substitution of biologically equivalent products. |
We cannot predict whether physicians, patients, healthcare insurers or maintenance
organizations, or the medical community in general, will accept or utilize any of our products.
If our products are approved but do not achieve an adequate level of acceptance by these
parties, we may not generate sufficient revenues from these products to become or remain
profitable. In addition, our efforts to educate the medical community and third-party payors
regarding the benefits of our products may require significant resources and may never be
successful.
If the health care system or reimbursement policies change, the prices of our potential products
may be lower than expected and our potential sales may decline.
The levels of revenues and profitability of biopharmaceutical companies like ours may be
affected by the continuing efforts of government and third party payers to contain or reduce the
costs of health care through various means. For example, in certain foreign markets, pricing or
profitability of therapeutic and other pharmaceutical products is subject to governmental
control. In the United States, there have been, and we expect that there will continue to be, a
number of federal and state proposals to implement similar governmental control. In addition,
in the United States, a number of proposals have been made to reduce the regulatory burden of
follow-on biologics, which could affect the prices and sales of our products in the future.
Additional and broad health care proposals currently are being considered by the United States
Congress. While we cannot predict whether any legislative or regulatory proposals will be
adopted, the adoption of such proposals could have a material adverse effect on our business,
financial condition and profitability. In addition, in the United States and elsewhere, sales of
therapeutic and other pharmaceutical products depend in part on the availability of
reimbursement to the consumer from third-party payers, such as government and private insurance
plans. Third-party payers are increasingly challenging the prices charged for medical products
and services. We cannot assure you that any of our products will be considered cost effective or
that reimbursement to the consumer will be available or will be sufficient to allow us to sell
our products on a competitive and profitable basis.
If we lose or are unable to attract key management or other personnel, we may experience delays
in product development.
We depend on our senior executive officers as well as other key personnel. If any key
employee decides to terminate his or her employment with us, this termination could delay the
commercialization of our products or prevent us from becoming profitable. Competition for
qualified employees is intense among pharmaceutical and biotechnology companies, and the loss of
qualified employees, or an inability to attract, retain and motivate additional highly skilled
employees required for the expansion of our activities, could hinder our ability to complete
human studies successfully and develop marketable products. The reduction in scope of some
programs in March 2009 included decreasing headcount. This reduction in headcount may adversely
affect our ability to attract, retain and motivate current and new employees.
We may be unable to successfully establish commercial manufacturing capability and may be unable
to obtain required quantities of our product candidates for commercial use.
We have not yet manufactured any products approved for commercial use and, except for
raxibacumab, have limited experience in manufacturing materials suitable for commercial use. We
have only limited experience manufacturing in a large-scale manufacturing facility built to
increase our capacity for protein and antibody drug production. The FDA must inspect and license
our facilities to determine compliance with cGMP requirements for commercial production. We may
not be able to successfully establish sufficient manufacturing capabilities or
manufacture our products economically or in compliance with cGMPs and other regulatory
requirements.
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While we have expanded our manufacturing capabilities, we have previously contracted and
may in the future contract with third-party manufacturers or develop products with collaboration
partners and use the collaboration partners manufacturing capabilities. If we use others to
manufacture our products, we will depend on those parties to comply with cGMPs, and other
regulatory requirements and to deliver materials on a timely basis. These parties may not
perform adequately. Any failures by these third parties may delay our development of products or
the submission of these products for regulatory approval.
We may be unable to fulfill the terms of our agreement with Hospira, Inc. and other agreements,
if any, with potential customers for manufacturing process development and supply of selected
biopharmaceutical products.
We have entered into agreements for manufacturing process development, clinical and
commercial supply of certain biopharmaceutical products, including an agreement with Hospira,
Inc., and may enter into similar agreements with other potential customers. We may not be able
to successfully manufacture products under the agreement with Hospira or under other agreements,
if any. We have not yet manufactured any products approved for commercial use and, except for
raxibacumab, have limited experience in manufacturing materials suitable for commercial use. We
have limited experience manufacturing in a large-scale manufacturing facility built to increase
our capacity for protein and antibody drug production. The FDA must inspect and license our
facilities to determine compliance with cGMP requirements for commercial production. We may not
be able to enter into additional agreements with other customers. Hospira or any future
customer may decide to discontinue the products contemplated under the agreements, and therefore
we may not receive revenue from these agreements.
Because we currently have only a limited marketing capability, we may be unable to sell any of
our products effectively.
We do not have any marketed products, although we have sold raxibacumab to the U.S.
Government. If we develop products that can be marketed, we intend to market the products either
independently or together with collaborators or strategic partners. GSK, Novartis and others
have co-marketing rights with respect to certain of our products. If we decide to market any
products, either independently or together with partners, we will incur significant additional
expenditures and commit significant additional management resources to establish a sales force.
For any products that we market together with partners, we will rely, in whole or in part, on
the marketing capabilities of those parties. We may also contract with third parties to market
certain of our products. Ultimately, we and our partners may not be successful in marketing our
products.
Because we depend on third parties to conduct many of our human studies, we may encounter delays
in or lose some control over our efforts to develop products.
We are dependent on third-party research organizations to conduct most of our human
studies. We have engaged contract research organizations to manage our global Phase 3 clinical
studies. If we are unable to obtain any necessary services on acceptable terms, we may not
complete our product development efforts in a timely manner. If we rely on third parties for the
management of these human studies, we may lose some control over these activities and become too
dependent upon these parties. These third parties may not complete the activities on schedule.
RISKS RELATED TO OWNERSHIP OF OUR COMMON STOCK
Because our stock price has been and will likely continue to be highly volatile, the market
price of our common stock may be lower or more volatile than you expected.
Our stock price, like the stock prices of many other biotechnology companies, has been
highly volatile. During the twelve months ended September 30, 2009, the closing price of our
common stock has been as low as $0.48 per share and as high as $20.50 per share. The market
price of our common stock could fluctuate widely because of any or
all of the factors discussed in Item 1A, including among others:
| future announcements about our company or our competitors, including the results of testing, clinical trials, technological innovations or new commercial products; |
49
| negative regulatory actions with respect to our potential products or regulatory approvals with respect to our competitors products; | ||
| changes in government regulations; | ||
| developments in our relationships with our collaboration partners; | ||
| developments affecting our collaboration partners; | ||
| announcements relating to health care reform and reimbursement levels for new drugs; | ||
| our failure to acquire or maintain proprietary rights to the gene sequences we discover or the products we develop; | ||
| litigation; and | ||
| public concern as to the safety of our products. |
The stock market has experienced price and volume fluctuations that have particularly affected
the market price for many emerging and biotechnology companies. These fluctuations have often
been unrelated to the operating performance of these companies. These broad market fluctuations
may cause the market price of our common stock to be lower or more volatile than you expected.
We may issue additional equity or equity-linked securities and thereby materially and adversely
affect the price of our common stock.
Sales of substantial amounts of shares of our common stock or securities convertible into
or exchangeable for our common stock in the public market, or the perception that those sales
may occur, could cause the market price of our common stock to decline. We have used and may
continue to use our common stock or securities convertible into or exchangeable for our common
stock to acquire technology, product rights or businesses, or for other purposes. Our
authorized capital stock consists of 400,000,000 shares of common stock, par value $0.01 per
share. As of September 30, 2009, we had 165,011,468 shares of common stock outstanding,
including 26,697,250 shares issued in August 2009 during our public offering. In addition, an
aggregate of approximately 24,306,115 shares of our common stock are issuable upon conversion of
our outstanding 2011 Notes and outstanding 2012 Notes; 28,324,457 shares of our common stock are
issuable upon the exercise of options outstanding as of September 30, 2009, having a
weighted-average exercise price of $13.95 per share, including 4,110,453 stock options granted
during the nine months ended September 30, 2009 with a weighted-average grant date fair value of
$0.44 per share; and 210,738 shares of our common stock are issuable upon the vesting of
restricted stock unit awards outstanding as of September 30, 2009. If we issue additional
equity securities, the price of our common stock may be materially and adversely affected and
the holdings of our existing stockholders would be diluted.
Our certificate of incorporation and bylaws could discourage acquisition proposals, delay a
change in control or prevent transactions that are in your best interests.
Provisions of our certificate of incorporation and bylaws, as well as Section 203 of the
Delaware General Corporation Law, may discourage, delay or prevent a change in control of our
company that you as a stockholder may consider favorable and may be in your best interest. Our
certificate of incorporation and bylaws contain provisions that:
| authorize the issuance of up to 20,000,000 shares of blank check preferred stock that could be issued by our board of directors to increase the number of outstanding shares and discourage a takeover attempt; | ||
| limit who may call special meetings of stockholders; and | ||
| establish advance notice requirements for nomination of candidates for election to the board of directors or for proposing matters that can be acted upon by stockholders at stockholders meetings. |
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Item 6. Exhibits
10.1 | Amendment of Solicitation/Modification of Contract awarded by the
Department of Health and Human Services to Human Genome Sciences, Inc. dated July
17, 2009. |
|||
12.1 | Ratio of Earnings to Fixed Charges. |
|||
31.1 | Rule 13a-14(a) Certification of Principal Executive Officer. |
|||
31.2 | Rule 13a-14(a) Certification of Principal Financial Officer. |
|||
32.1 | Section 1350 Certification of Principal Executive Officer. |
|||
32.2 | Section 1350 Certification of Principal Financial Officer. |
| Confidential treatment requested for certain portions of this Exhibit pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, which portions are omitted and filed separately with the Securities and Exchange Commission. |
51
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
HUMAN GENOME SCIENCES, INC. |
||||
BY: | /s/ H. Thomas Watkins | |||
H. Thomas Watkins | ||||
President and Chief Executive Officer (Principal Executive Officer) |
||||
BY: | /s/ Timothy C. Barabe | |||
Timothy C. Barabe | ||||
Chief Financial Officer and Senior Vice President (Principal Financial Officer and Principal Accounting Officer) | ||||
Dated: October 29, 2009
52
EXHIBIT INDEX
Exhibit Page Number
10.1 | Amendment of Solicitation/Modification of Contract awarded by the
Department of Health and Human Services to Human Genome Sciences, Inc. dated July
17, 2009. |
|||
12.1 | Ratio of Earnings to Fixed Charges. |
|||
31.1 | Rule 13a-14(a) Certification of Principal Executive Officer. |
|||
31.2 | Rule 13a-14(a) Certification of Principal Financial Officer. |
|||
32.1 | Section 1350 Certification of Principal Executive Officer. |
|||
32.2 | Section 1350 Certification of Principal Financial Officer. |
| Confidential treatment requested for certain portions of this Exhibit pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, which portions are omitted and filed separately with the Securities and Exchange Commission. |