1 As filed with the Securities and Exchange Commission on August 24, 2001 Registration No.333-___________ 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. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 94-3023969 ----------------------------------- --------------------------------------- (State or other jurisdiction (I.R.S. employer identification no.) of incorporation or organization) 34801 Campus Drive Fremont, CA 94555 --------------------------------------------------- (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 ------------------------------------------- (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. 2 - -------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE (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 Nonstatutory Stock Option Plan, the price is computed on the basis of the weighted average exercise price. As to shares under the 1999 Stock Option Plan and as to the remaining shares under the 1999 Nonstatutory Stock Option Plan, the price is based upon the average of the high and low prices of the Common Stock on August 20, 2001, as reported on the Nasdaq National Market.
- ---------------------------------------------------------------------------------------------------------------------- Proposed Proposed maximum maximum Title of Securities to Amount to be offering price aggregate Amount of be registered(1) registered(2) per share(3) offering price(3) registration fee - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- 1999 Stock Option Plan Common Stock 2,000,000 $47.65 $95,300,000.00 $23,825.00 Par Value $0.01 1999 Nonstatutory Stock Option Plan Common Stock 221,002 $68.93 $15,233,667.86 $ 3,808.42 Par Value $0.01 1,778,998 $47.65 $84,769,254.70 $21,192.31 TOTAL 4,000,000 $195,302,922.56 $48,825.73 3 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, 2000 as filed with the Securities and Exchange Commission on March 30, 2001. (b) The Company's quarterly reports on Form 10-Q for the quarters ended March 31 and June 30, 2001 filed pursuant to Section 13(a) or 15(d) of the Exchange Act, as filed with the Securities and Exchange Commission on May 15 and August 13, 2001, respectively, and the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 14, 2001. (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed on December 23, 1991, 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 4 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, 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; 5 (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. 6 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 August 23, 2001. PROTEIN DESIGN LABS, INC. By: /s/ Douglas O. Ebersole -------------------------------- Douglas O. Ebersole Senior Vice President, Legal and Licensing and Secretary 7 SIGNATURES AND POWER OF ATTORNEY The officers and directors of Protein Design Labs, Inc. whose signatures appear below, hereby constitute and appoint Laurence Jay Korn 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 indicated on August 23, 2001.
Signature Title --------- ----- /s/ Laurence Jay Korn Chief Executive Officer and - ---------------------------------------- Chairperson of the Board of Directors Laurence Jay Korn (Principal Executive Officer) /s/ Robert L. Kirkman Vice President, Business Development and Corporate - ---------------------------------------- Communications (Principal Accounting Officer) Robert L. Kirkman /s/ Jon S. Saxe Director - ---------------------------------------- Jon S. Saxe /s/ Cary L. Queen Director - ---------------------------------------- Cary L. Queen /s/ George M. Gould Director - ---------------------------------------- George M. Gould /s/ Max Link Director - ---------------------------------------- Max Link Director - ---------------------------------------- Jurgen Drews 8 EXHIBIT INDEX 4.1 Restated Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 to Annual Report on Form 10-K filed March 31, 1993.) 4.2 Amended Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 to Quarterly Report on Form 10-Q filed August 14, 2000.) 4.3 Amended and Restated Bylaws. (Incorporated by reference to Exhibit 3.1 to Quarterly Report on Form 10-Q filed May 15, 2000.) 5 Opinion of Gray Cary Ware & Freidenrich LLP 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)
1 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 August 23, 2001 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 4,000,000 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 4,000,000 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
1 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1999 Stock Option Plan and 1999 Nonstatutory Stock Option Plan of Protein Design Labs, Inc., of our report dated February 5, 2001 with respect to the consolidated financial statements of Protein Design Labs, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Palo Alto, California August 24, 2001