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As filed with the Securities and Exchange Commission on September 28, 1999
Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Protein Design Labs, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 94-3023969
--------------------------------- -------------------
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
34801 Campus Drive
Fremont, CA 94555
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(Address of principal executive offices) (Zip code)
PROTEIN DESIGN LABS, INC.
1999 STOCK OPTION PLAN AND
1999 NONSTATUTORY STOCK OPTION PLAN
------------------------------------------
(Full title of the plan)
Douglas O. Ebersole
Senior Vice President, Legal and Licensing
and Secretary
Protein Design Labs, Inc.
34801 Campus Drive
Fremont, CA 94555
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (510) 574-1400.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered(1) registered(2) per share(3) offering price(3) registration fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Stock Option Plan
Common Stock 146,813 $26.5625 $ 3,899,720.30
Par Value $0.01 778,187 $31.3125 $24,366,980.44
1999 Nonstatutory Stock Option Plan
Common Stock 213,318 $26.5625 $ 5,666,259.30
Par Value $0.01 786,682 $31.3125 $24,632,980.13
TOTALS 1,925,000 $58,565,940.17 $16,281.33
</TABLE>
(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 1999 Stock Option Plan and 1999 Nonstatutory Stock Option Plan, the
price is computed on the basis of the weighted average exercise price. As to the
remaining shares under the 1999 Stock Option Plan and 1999 Nonstatutory Stock
Option Plan, the price is based upon the average of the high and low prices of
the Common Stock on September 23, 1999, as reported on the Nasdaq National
Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Protein Design Labs, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), containing audited financial statements for the
Company's latest fiscal year ended December 31, 1998 as filed with the
Securities and Exchange Commission on March 31, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 102(b) of the Delaware General Corporation Law authorizes
a corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law,
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illegal payment of dividends or stock redemptions or repurchases, or for any
transaction from which the director derives an improper personal benefit. As
permitted by the statute, the Company has adopted provisions in its Certificate
of Incorporation which eliminate to the fullest extent permissible under
Delaware law the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care.
Section 145 of the General Corporation Law of the State of
Delaware provides for the indemnification of officers, directors, employees and
agents of a corporation. The By-laws of the Company provide for indemnification
of its directors, officers, employees and agents to the full extent permitted by
under Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's By-laws also
empower it to enter into indemnification agreements with its directors and
officers and to purchase insurance on behalf of any person whom it is required
or permitted to indemnify. The Company has entered into agreements with its
directors and certain of its executive officers that require the Company to
indemnify such persons to the fullest extent permitted under Delaware law
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an executive officer of the Company or any of its affiliated enterprises. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of
Delaware provides for indemnification in terms sufficiently broad to indemnify
such individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Securities Act").
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fremont, State of California, on September 27,
1999.
PROTEIN DESIGN LABS, INC.
By: /s/ Douglas O. Ebersole
---------------------------------
Douglas O. Ebersole
Senior Vice President,
Legal and Licensing and Secretary
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Protein Design Labs, Inc. whose signatures
appear below, hereby constitute and appoint Jon S. Saxe and Douglas O. Ebersole,
and each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their or his substitutes, shall do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------- -------------------------------- ------------------
<S> <C> <C>
/s/ Laurence Jay Korn Chief Executive Officer and September 27, 1999
- --------------------------------- Chairperson of the Board of
Laurence Jay Korn Directors
(Principal Executive Officer)
/s/ Jon S. Saxe Director September 27, 1999
- ---------------------------------
Jon S. Saxe
/s/ Cary L. Queen Director September 22, 1999
- ---------------------------------
Cary L. Queen
/s/ George M. Gould Director September 24, 1999
- ---------------------------------
George M. Gould
Director
- ---------------------------------
Max Link
Director
- ---------------------------------
Jurgen Drews
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------- -------------------------------- ------------------
<S> <C> <C>
/s/ Robert L. Kirkman Vice President, Business September 28, 1999
- --------------------------------- Development and Corporate
Robert L. Kirkman Communications
(Principal Accounting Officer
</TABLE>
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EXHIBIT INDEX
<TABLE>
<S> <C>
4.1 Restated Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form 10-K filed with the Securities and Exchange Commission on March
31, 1993
4.2 Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on
Form 10-K filed with the Securities and Exchange Commission on March
31, 1995
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
</TABLE>
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
September 24, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Protein Design Labs, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 1,925,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of options granted under the Protein Design Labs, Inc. 1999 Stock
Option Plan and 1999 Nonstatutory Stock Option Plan (the "Plans").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 1,925,000 shares of
Common Stock which may be issued under the Plans and are duly authorized shares
of the Company's Common Stock, and, when issued against receipt of the
consideration therefor in accordance with the provisions of the Plans, will be
validly issued, fully paid and nonassessable. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement referred to above and
the use of our name wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 1999 Stock Option Plan and the 1999 Nonstatutory
Stock Option Plan of Protein Design Labs, Inc., of our report dated February 2,
1999, with respect to the financial statements of Protein Design Labs, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
September 24, 1999
