EXHIBIT 10.34
Protein Design Labs, Inc.
5.50% Convertible Subordinated Notes due February 15, 2007
Registration Rights Agreement
February 15, 2000
CIBC World Markets Corp.
Credit Suisse First Boston Corporation
SG Cowen Securities Corporation
Warburg Dillon Read LLC
c/o CIBC World Markets Corp.
One World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Protein Design Labs, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the
terms set forth in the Purchase Agreement (as defined herein) its 5.50%
Convertible Subordinated Notes due February 15, 2007 (the "Securities"). As
an inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder,
the Company agrees with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Registrable Securities (as defined herein) as
follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange Commission,
or any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
The term "holder" means, when used with respect to any Security, the
Holder (as defined in the Indenture) and, with respect to any Common Stock,
the record holder of such Common Stock.
"Indenture" means the Indenture, dated as of February 15, 2000, between
the Company and Chase Manhattan Bank and Trust Company, National Asssociation,
as amended and supplemented from time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering, if any, conducted pursuant to Section 7 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire, substantially in the form of Exhibit A
attached hereto, relating to the Securities.
The term "person" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act)
included in the Shelf Registration Statement, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Shelf Registration
Statement and by all other amendments and supplements to such prospectus,
including all material incorporated by reference in such prospectus and all
documents filed after the date of such prospectus by the Company under the
Exchange Act and incorporated by reference therein.
"Purchase Agreement" means the Purchase Agreement, dated as of February
10, 2000, between the Company and the Purchasers.
"Purchasers" means the Purchasers named in Schedule A to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture and the shares of Common Stock
issuable upon conversion of such Securities; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock that (i) has been registered pursuant to an effective registration
statement under the Securities Act and sold in a manner contemplated by the
Shelf Registration Statement, (ii) has been transferred in compliance with
Rule 144 under the Securities Act (or any successor provision thereto) or is
transferable pursuant to paragraph (k) of such Rule 144 (or any successor
provision thereto), or (iii) has otherwise been transferred and a new Security
or share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with Section 2.6 of the Indenture.
"Rules and Regulations" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar
rule that may be adopted by the Commission, filed by the Company pursuant to
the provisions of Section 2 of this Agreement, including the Prospectus
contained therein, any amendments and supplements to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, as the same shall be amended from time to time.
The term "underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities which was surrendered for conversion or
exchange in order to receive such number of shares of Common Stock.
2. Shelf Registration.
(a) The Company shall, on or prior to 90 calendar days after the
Closing Date (as defined in the Purchase Agreement), file with the Commission
a Shelf Registration Statement relating to the offer and sale of the
Registrable Securities and, thereafter, shall use all reasonable efforts to
cause such Shelf Registration Statement to be declared effective under the
Securities Act on or prior to 180 calendar days after the Closing Date;
provided, however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the Prospectus
for resales of Registrable Securities unless such holder is an Electing
Holder.
(b) The Company shall use all reasonable efforts:
(i) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus to be usable by holders for
resales of Registrable Securities until the earlier of (A) the sale
under the shelf Registration Statement of all the Registrable Securities
registered thereunder and (B) the expiration of the holding period
applicable to such Registrable Securities held by persons who are not
affiliates of the Company under Rule 144(k) of the Securities Act or any
successor provision thereto (such period being referred to herein as the
"Effectiveness Period");
(ii) after the Effective Time, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the Prospectus
for resales of Registrable Securities, including without limitation any
action necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement; provided, however, that nothing in
this subsection shall relieve such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a) (ii) hereof; and
(iii) if at any time the Securities are convertible into
securities other than Common Stock pursuant to Article Ten of the
Indenture, the Company shall, or shall cause any successor under the
Indenture to, cause such securities to be included in the Shelf
Registration Statement no later than the date on which the Securities
may then be convertible into such securities.
3. Registration Procedures.
In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective
Time, the Company shall mail the Notice and Questionnaire to the holders
of Registrable Securities. No holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the Prospectus
for resales of Registrable Securities at any time unless such holder has
returned a completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided, however, a
holder of Registrable Securities shall have at least 20 calendar days
from the date on which the Notice and Questionnaire is first mailed to
such holder to return a completed and signed Notice and Questionnaire to
the Company.
(ii) After the Effective Time, the Company shall, upon the
request of any holder of Registrable Securities that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such
holder. The Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the Prospectus for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company.
(iii) The term "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(i) or
3(a)(ii) hereof, (it being understood that, for purposes of this Section
3 only, a person shall no longer be deemed an Electing Holder at such
time as he ceases to be a holder of Registrable Securities).
(b) The Company shall furnish to each Electing Holder, counsel to the
Electing Holders selected in accordance with Section 4(b) hereof, and the
Managing Underwriters, if any, no fewer than five Business Days prior to the
initial filing of the Shelf Registration Statement, a copy of such Shelf
Registration Statement, and shall furnish to such holders, such counsel to
such holders, and the Managing Underwriters, if any, no fewer than two
Business Days prior to the filing of any amendment or supplement to the
Prospectus, a copy of such amendment or supplement and shall use all
reasonable efforts to reflect in each such document when so filed with the
Commission such comments as such holders and such counsel reasonably may
propose; provided, however, that the Company shall make the final decision as
to the form and content of each such document. If any such Shelf Registration
Statement refers to any Electing Holder by name or otherwise as the holder of
any securities of the Company, then such Electing Holder shall have the right
to require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Electing Holder and the Company, to the effect
that the holding by such Electing Holder of such securities is not to be
construed as a recommendation by such Electing Holder of the investment
quality of the Company's securities covered thereby and that such holding does
not imply that such Electing Holder will assist in meeting any future
financial requirements of the Company or (ii) in the event that such reference
to such Electing Holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force, the deletion of the
reference to such Electing Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
(c) From the date hereof until the end of the Effectiveness Period,
the Company shall (subject to Section 3(j) hereof) promptly take such action
as may be necessary so that (i) each of the Shelf Registration Statement and
any amendment thereto and the Prospectus and any amendment or supplement
thereto (and each report or other document incorporated by reference therein
in each case) complies in all material respects with the Securities Act and
the Exchange Act and the respective rules and regulations thereunder, (ii)
each of the Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading and (iii) each of the Prospectus and any amendment
or supplement to the Prospectus does not at any time include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so requested by any such holder (which
notice pursuant to clauses (ii) through (iv) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made):
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(iv) if changes in the Shelf Registration Statement or the
Prospectus are required in order that the Shelf Registration Statement
and Prospectus do not contain an untrue statement of a material fact and
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not
misleading.
(e) The Company shall use all reasonable efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending the
effectiveness of the Shelf Registration Statement at the earliest possible
time.
(f) The Company shall furnish to each requesting Electing Holder,
without charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including financial statements and
schedules, and, if such holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver to
each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Electing Holder may reasonably request; and the Company
consents (except during the continuance of any event described in Section
3(d)(iv) above) to the use of the Prospectus and any amendment or supplement
thereto by each of the Electing Holders in connection with the offering and
sale of the Registrable Securities covered by the Prospectus and any amendment
or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) use all reasonable efforts
to register or qualify or cooperate with the Electing Holders and a single
counsel for the Electing Holders in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions within the United States
as any Electing Holder may reasonably request, (ii) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable any Electing Holder or underwriter, if any, to complete
its distribution of Registrable Securities pursuant to the Shelf Registration
Statement, and (iii) take any and all other actions necessary or advisable to
enable the disposition in such jurisdictions of such Registrable Securities;
provided, however, that in no event shall the Company be obligated to (A)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for
this Section 3(h) or (B) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject.
(i) The Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Shelf Registration
Statement, which certificates shall not bear any restrictive legends and, if
so required by any securities exchange upon which any Registrable Securities
are listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations
and registered in such names as Electing Holders may request in connection
with the sale of Registrable Securities pursuant to the Shelf Registration
Statement.
(j) Upon the occurrence of any fact or event contemplated by Section
3(d)(iv) hereof, the Company shall (subject to the next sentence) promptly
prepare a post-effective amendment or supplement to the Shelf Registration
Statement or the Prospectus, or any document incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If the
Company notifies the Electing Holders in accordance with Sections 3(d)(ii),
(iii) or (iv) hereof to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made, then each Electing Holder shall
suspend the use of the Prospectus and keep the notification provided pursuant
to Section 3(d) hereof confidential until (i) such Electing Holder has
received copies of the supplemented or amended Prospectus contemplated by the
preceding sentence or (ii) such Electing Holder is advised in writing by the
Company that the use of the Prospectus may be resumed and has received copies
of any additional or supplemental filings that are incorporated by reference
in the Prospectus. Notwithstanding the foregoing, but subject to Section 7
hereof, the Company shall not be required to amend or supplement the Shelf
Registration Statement, any related Prospectus or any document incorporated by
reference for a period not to exceed 60 consecutive days if the Company is in
possession of material non-public information.
(k) Not later than the Effective Time, the Company shall provide a
CUSIP number for the Registrable Securities that are debt securities.
(l) The Company shall use all reasonable efforts to comply with all
applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after (i) the effective date (as defined in Rule 158(c) under
the Securities Act) of the Shelf Registration Statement, (ii) the effective
date of each post-effective amendment to the Shelf Registration Statement, and
(iii) the date of each filing by the Company with the Commission of an Annual
Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act and the Rules
and Regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(m) Not later than the Effective Time, the Company shall cause the
Indenture to be qualified under the Trust Indenture Act; in connection with
such qualification, the Company shall cooperate with the Trustee under the
Indenture and the Holders (as defined in the Indenture) to effect such changes
to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company shall
execute, and shall use all reasonable efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner. In the event that any such
amendment or modification referred to in this Section 3(m) involves the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) In the event of an underwritten offering conducted pursuant to
Section 7 hereof, the Company shall (subject to Section 3(j) hereof), if
requested, promptly include or incorporate in a Prospectus supplement or post-
effective amendment to the Shelf Registration Statement such information as
the Managing Underwriters reasonably agree should be included therein and to
which the Company does not reasonably object and shall (subject to Section
3(j) hereof) make all required filings of such Prospectus supplement or post-
effective amendment as soon as practicable after it is notified of the matters
to be included or incorporated in such Prospectus supplement or post-effective
amendment.
(o) The Company shall enter into such customary agreements (including
an underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 7 hereof) and take all other
appropriate action in order to expedite and facilitate the registration and
disposition of the Registrable Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof with respect to all parties to be indemnified
pursuant to Section 5 hereof; provided, however, the Company shall not be
required to facilitate an underwritten offering pursuant to the Shelf
Registration Statement by any holders unless the offering relates to at least
$50,000,000 principal amount of the Securities or the equivalent number of
shares of Common Stock into which such Securities are convertible.
(p) The Company shall:
(i)(A) make reasonably available for inspection by requesting
Electing Holders, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement, and any attorney selected
in accordance with Section 4(b) hereof, one accountant and any other
agent retained by such holders or any such underwriter (provided that
any person who participates in such an inspection shall be a person that
is customarily used by selling stockholders and underwriters for similar
due diligence investigations and such person shall not be a person that
is in the business of, or employed for the purpose of, analyzing or
valuing securities) all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
and (B) cause the Company's officers, directors and employees to supply
all information reasonably requested by such holders or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, at the time and in the manner as
is customary for similar due diligence investigations related to the
filing of a shelf registration statement or post-effective amendment
thereto, as the case may be; provided, however, that all records,
information and documents that are designated in writing by the Company,
in good faith, as confidential shall be kept confidential by such
holders and any such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or
required by law, or such records, information or documents become
available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided further that
such inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of the requesting Electing Holders
and the other parties entitled thereto by one counsel designated by and
on behalf of Electing Holders and other parties;
(ii) in connection with any underwritten offering conducted
pursuant to Section 7 hereof, make such representations and warranties
to the Electing Holders participating in such underwritten offering and
to the Managing Underwriters, in form, substance and scope as are
customarily made by the Company to underwriters in primary underwritten
offerings of equity and convertible debt securities;
(iii) in connection with any underwritten offering conducted
pursuant to Section 7 hereof, obtain opinions of counsel to the Company
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters) addressed to each
requesting Electing Holder, covering such matters as are customarily
covered in opinions requested in primary underwritten offerings of
equity and convertible debt securities and such other matters as may be
reasonably requested by such Electing Holders and underwriters (it being
agreed that the matters to be covered by such opinions shall include,
without limitation, as of the date of the opinion and as of the
Effective Time or the date of the most recent post-effective amendment
thereto, as the case may be, the absence from the Shelf Registration
Statement and the Prospectus, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading);
(iv) in connection with any underwritten offering conducted
pursuant to Section 7 hereof, obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company (and, if
necessary, from the independent public accountants of any subsidiary of
the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each
requesting Electing Holder (if such Electing Holder has provided such
letter, representations or documentation, if any, required for such cold
comfort letter to be so addressed) and the underwriters, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 7 hereof, deliver such documents and certificates as
may be reasonably requested by any Electing Holders and the Managing
Underwriters, if any, including without limitation certificates to
evidence compliance with Section 3(j) hereof and with any conditions
contained in the underwriting agreement or other agreements entered into
by the Company.
(q) The Company shall use all reasonable efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed for quotation on
the National Association of Securities Dealers Automated Quotations National
Market System or other stock exchange or trading system, if any, on which the
Common Stock primarily trades on or prior to the Effective Time.
(r) The Company shall use all reasonable efforts to take all other
steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by it whether or
not any Shelf Registration Statement is filed or becomes effective and whether
or not any securities are issued or sold pursuant to any Shelf Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including
without limitation fees and expenses (A) with respect to filings required to
be made with the National Association of Securities Dealers, Inc. and (B) in
compliance with securities or Blue Sky laws (including without limitation and
in addition to that provided for in (b) below, reasonable fees and
disbursements of counsel for the underwriters or counsel for the holders of
Registrable Securities in connection with Blue Sky qualifications of the
Registrable Securities )), (ii) printing expenses (including without
limitation expenses of printing certificates for Registrable Securities in a
form eligible for deposit with DTC and of printing Prospectuses if the
printing of Prospectuses is requested by the Managing Underwriters, if any),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements
of counsel for the Company and one counsel for the holders of Registrable
Securities (plus one local counsel deemed appropriate by the holders of
Registrable Securities of a majority in amount of the Registrable Securities
(determined on a fully converted basis)) in accordance with the provisions of
Section 4(b) hereof (provided, however, that the Company's obligation
hereunder with respect to fees and disbursements of such local counsel shall
not exceed $10,000), (v) fees and disbursements of all independent certified
public accountants referred to in Section 3(p)(iv) hereof (including without
limitation the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, and (vii) fees and expenses
of all other persons retained by the Company. In addition, the Company shall
pay its internal expenses (including without limitation all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, and the fees and expenses incurred in
connection with the listing of the securities on the National Association of
Securities Dealers Automated Quotations National Market System.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each holder of the Registrable Securities being registered shall pay all
commissions, placement agent fees and underwriting discounts and commissions
with respect to any Registrable Securities sold by it and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than counsel and local counsel referred
to in clause (iv) above.
(b) In connection with any registration hereunder, the Company
shall reimburse the holders of the Registrable Securities being registered in
such registration for the reasonable fees and disbursements of not more than
one counsel (in addition to one appropriate local counsel) chosen by the
holders of a majority in amount of the Registrable Securities (determined on a
fully converted basis) for whose benefit the applicable Shelf Registration
Statement is being prepared.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall
indemnify and hold harmless each Electing Holder and each underwriter, selling
agent or other securities professional, if any, which facilitates the
disposition of Registrable Securities, and each of their respective officers
and directors and each person who controls such Electing Holder, underwriter,
selling agent or other securities professional within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (each such person
being sometimes referred to as an "Indemnified Person") against any losses,
claims, damages or liabilities, joint or several, to which such Indemnified
Person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Shelf Registration Statement or any
Prospectus contained therein or furnished by the Company to any Indemnified
Person, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, and the
Company hereby agrees to reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of such Indemnified Person expressly for use therein; provided, further,
however, that the foregoing indemnity agreement with respect to any
preliminary Prospectus shall not inure to the benefit of any Indemnified
Person who failed to deliver a final Prospectus (as then amended or
supplemented, provided by the Company to the several Indemnified Persons in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the relevant transaction date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, if such material misstatement or omission or alleged material
misstatement or omission was cured in the final Prospectus.
(b) Indemnification by the Holders and any Agents and Underwriters.
Each Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in any Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign such Shelf Registration Statement and each
person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company or such other persons may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such Shelf Registration Statement or Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such holder, underwriter, selling agent or other securities
professional expressly for use therein and (ii) reimburse the Company, its
directors, officers who sign such Shelf Registration Statement and each
person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) of this Section 5 of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under this Section
5, notify such indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party other than under this
Section 5. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof,
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party under this Section 5 for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, which consent will not be
unreasonably withheld, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section
5 is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) of this Section 5 in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties, on the one hand, and the indemnified party, on the other
hand, from the registration of the Securities pursuant to the Shelf
Registration Statement or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation (even if the Electing Holders or any underwriters, selling agents
or other securities professionals or all of them were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 5(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Electing Holders and
any underwriters, selling agents or other securities professionals in this
Section 5(d) to contribute shall be several in proportion to the percentage of
principal amount of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement and (ii)
underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter,
selling agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability that the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability that such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5
are not exclusive and shall not limit any rights or remedies that may
otherwise be available to an indemnified party at law or in equity.
6. Liquidated Damages.
If (i) on or prior to 90 days after the
Closing Date, a Shelf Registration Statement has not been filed with the
Commission, (ii) on or prior to 180 days after the Closing Date, such Shelf
Registration Statement is not declared effective or, (iii) the Shelf
Registration Statement ceases to be effective or the Company otherwise
prevents or restricts the Electing Holders from making sales of Registrable
Securities under such Shelf Registration Statement during the Effectiveness
Period for a period in excess of 60 consecutive days (each, a "Registration
Default"), liquidated damages ("Liquidated Damages") will accrue on the
Registrable Securities at a rate equal to 0.5% of the principal amount of
Registrable Securities per annum from and including the day following such
Registration Default to but excluding the day on which such Registration
Default has been cured or, if earlier, the last day upon which the Shelf
Registration Statement is required to be kept effective. The Company shall
notify the Trustee as promptly as possible, but in no event more than three
Business Days after each and every date on which a Registration Default
occurs. Liquidated Damages will be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date in respect of
the Registrable Securities following the date on which such Liquidated Damages
begin to accrue.
7. Underwritten Offering.
Any holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided, however, the Company shall not be required to
facilitate an underwritten offering pursuant to the Shelf Registration
Statement by any holders unless the offering relates to at least $50,000,000
principal amount of the Securities or the equivalent number of shares of
Common Stock into which such Securities are convertible. In any such
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by, and the
underwriting arrangements with respect thereto (including the size of the
offering) will be approved by, the holders of a majority of the Registrable
Securities to be included in such offering; provided, however, that such
investment bankers and managers (including the personnel of such investment
bankers and managers involved in any such underwritten offering) and
underwriting arrangements must be reasonably satisfactory to the Company. No
holder may participate in any underwritten offering contemplated hereby unless
(a) such holder agrees to sell such holder's Registrable Securities to be
included in the underwritten offering in accordance with any approved
underwriting arrangements, (b) such holder completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such approved underwriting arrangements and (c) if such holder is not then an
Electing Holder, such holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(ii) hereof within
a reasonable amount of time before such underwritten offering. The holders
participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and, subject to Section 4
hereof, expenses of their own counsel. The Company shall pay all expenses
customarily borne by issuers, including but not limited to filing fees, the
fees and disbursements of its counsel and independent public accountants and
any printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 3(n) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
holders of a majority of the Registrable Securities to be included in an
underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 60 days if the Company is in possession of material non-public
information.
8. Rules 144 and 144A.
The Company agrees, for so long as any
Registrable Securities remain outstanding and during any period in which the
Company (a) is not subject to Section 13 of 15(d) of the Exchange Act, to make
available, upon request of any holder of Registrable Securities, to such
holder or beneficial owner of Registrable Securities in connection with any
sale thereof and any prospective purchaser of such Registrable Securities
designated by such holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Securities pursuant to Rule 144A of the Securities Act, and (b) is
subject to Section 13 of 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such
Registrable Securities pursuant to Rule 144 of the Securities Act.
9. Miscellaneous.
(a) Other Registration Rights. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company shall not permit any securities other than the
Registrable Securities to be included in any Shelf Registration Statement.
The rights granted to the holders of Registrable Securities hereunder do not
in any way conflict with and are not inconsistent with the rights granted to
the holders of the Company's securities under any agreement in effect on the
date hereof.
(b) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section
2 hereof and this Section 9(b)(i), the Company has obtained the written
consent of holders of all outstanding Registrable Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of holders of a majority of the outstanding principal amount of
Registrable Securities (determined on a fully converted basis) (excluding
Registrable Securities held by the Company or its Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of holders whose
Registrable Securities are being sold pursuant to a Shelf Registration
Statement and that does not affect directly or indirectly the rights of other
holders of Registrable Securities may be given by the holders of a majority of
the outstanding principal amount of Registrable Securities (determined on a
fully converted basis) being sold by such holders pursuant to such Shelf
Registration Statement.
(c) Third Party Beneficiary. The holders of Registrable Securities
shall be third party beneficiaries to the agreements made hereunder between
the Company, on the one hand, and the Purchasers, on the other hand, and shall
have the right to enforce such agreements directly to the extent they may deem
such enforcement necessary or advisable to protect its rights or the rights of
holders of Registrable Securities hereunder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(e) Parties in Interest. The parties to this Agreement intend that
all holders of Registrable Securities shall be entitled to receive the
benefits of this Agreement and that any Electing Holder shall be bound by the
terms and provisions of this Agreement by reason of such election with respect
to the Registrable Securities that are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto and any holder from time to time
of the Registrable Securities to the aforesaid extent. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of
law or otherwise, such transferee shall, without any further writing or action
of any kind, be entitled to receive the benefits of and, if an Electing
Holder, be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement to the aforesaid extent.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning,
construction or interpretation hereof.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, including without
limitation New York General Obligations Laws 5-1401.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by
law.
(j) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement
or made pursuant hereto shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Electing Holder, any director, officer or partner of such
holder, any agent or underwriter, any director, officer or partner of such
agent or underwriter, or any controlling person of any of the foregoing, and
shall survive the transfer and registration of the Registrable Securities of
such holder.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Please confirm by signing in the space provided below that the foregoing
correctly sets forth the agreement between the Company and you.
Very truly yours,
PROTEIN DESIGN LABS, INC.
By: ____________________________
Name:
Title:
CIBC WORLD MARKETS CORP.
CREDIT SUISSE FIRST BOSTON CORPORATION
SG COWEN SECURITIES CORPORATION
WARBURG DILLON READ LLC
By: CIBC WORLD MARKETS CORP.
By: _____________________________
Name:
Title:
EXHIBIT A
Protein Design Labs, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between Protein Design Labs, Inc. (the
"Company") and the Purchasers named therein. Pursuant to the Registration
Rights Agreement, the Company has filed with the United States Securities and
Exchange Commission (the "Commission") a registration statement on Form S-_
(the "Shelf Registration Statement") for the registration and resale under
Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), of
the Company's 5.50% Convertible Subordinated Notes due February 15, 2007 (the
"Securities") and the shares of common stock, par value $0.01 per share (the
"Common Stock"), issuable upon conversion thereof. A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included
in the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to
time under the Indenture and the shares of Common Stock issuable upon
conversion of such Securities; provided, however, that a security ceases to be
a Registrable Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Security or share of Common Stock issuable upon
conversion thereof except any such Security or share of Common Stock that (i)
has been registered pursuant to an effective registration statement under the
Securities Act and sold in a manner contemplated by the Shelf Registration
Statement, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or is transferable
pursuant to paragraph (k) of such Rule 144 (or any successor provision
thereto), or (iii) has otherwise been transferred and a new Security or share
of Common Stock not subject to transfer restrictions under the Securities Act
has been delivered by or on behalf of the Company in accordance with Section
2.6 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and the Registrable Securities
listed below in Item (3). The undersigned, by signing and returning this
Notice and Questionnaire, agrees to be bound with respect to such Registrable
Securities by the terms and conditions of this Notice and Questionnaire and
the Registration Rights Agreement, including without limitation Section 5 of
the Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
Certain capitalized terms used in this Questionnaire are defined in
Appendix l attached hereto. Capitalized terms used in this Questionnaire but
not defined in Appendix 1 have the meanings given to them in the accompanying
letter.
(1) (a) Full legal name of Selling Securityholder:
_________________________________________________________________
(i) Is such Selling Securityholder a:
[ ] Corporation [ ] General Partnership
[ ] Individual [ ] Limited Partnership
[ ] Other (please specify:____________________)
(ii) In what state is such Selling Securityholder organized or
domiciled?
_____________________________
(b) Full legal name of Registered Holder (if not the same as in (a)
above) of Registrable Securities listed in Item (4) below:
_______________________________________________________________
(c) Full legal name of DTC participant (if applicable and if not the
same as (b) above) through which Registrable Securities listed in
Item (4) below are held:
________________________________________________________________
(2) Address for Notices to Selling Securityholder:
____________________________
____________________________
____________________________
Telephone: ____________________________
Fax: ____________________________
Contact Person: ____________________________
E-mail: ____________________________
(3) Beneficial Ownership of Securities by Another Entity or Individual:
(a) Is another entity or individual the Beneficial Owner of any
Securities or shares of Common Stock issued upon conversion of any
Securities?
[ ] No (skip questions (b)-(e) below)
[ ] Yes (answer questions (b)-(e) below)
(b) What is the full legal name of such Beneficial Owner?
_____________________________________________________
(c) Is such Beneficial Owner a:
[ ] Corporation [ ] General Partnership
[ ] Individual [ ] Limited Partnership
[ ] Other (please specify:____________________)
(d) In what state is such Beneficial Owner organized or domiciled?
___________________________________________________
(e) Please provide the name, address, telephone number, fax number and
e-mail address of a contact person for such Beneficial Owner.
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
(4) Beneficial Ownership of Securities:
Except as set forth below in this Item (4), the undersigned is not a
Beneficial Owner of any Securities or shares of Common Stock issued upon
conversion of any Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) Beneficially Owned:
________________________________________ CUSIP No(s). of such
Registrable Securities: _______________________________
Number of shares of Common Stock (if any) issued upon conversion
of such Registrable Securities:
_______________________________________
(b) Principal amount of Securities other than Registrable Securities
Beneficially Owned:
__________________________________________________________________
CUSIP No(s). of such other Securities:
____________________________________
Number of shares of Common Stock (if any) issued upon conversion
of such other Securities:
___________________________________________________________
(c) Principal amount of Registrable Securities that the undersigned
wishes to be included in the Shelf Registration Statement:
________________________________ CUSIP No(s). of such Registrable
Securities to be included in the Shelf Registration Statement:
___________________________________________________________
Number of shares of Common Stock (if any) issued upon conversion
of Registrable Securities that are to be included in the Shelf
Registration Statement:__________
(5) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (5), the undersigned Selling
Securityholder is not a Beneficial Owner of any shares of Common Stock
or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (4).
State any exceptions here:
(6) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its Affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other Material
Relationship with the Company (or its predecessors or Affiliates) during
the past three years.
State any exceptions here:
(7) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(4) only as follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents who may
receive discounts, concessions or commissions from the Selling
Stockholder or the purchaser. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at prices relating to the prevailing market prices
at the time of sale, at varying prices determined at the time of sale,
or at negotiated prices. Such sales may be effected in transactions
(which may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, (iv) through
the writing of options, whether such options are listed on an option
exchange or otherwise, or (iv) through the settlement of short sales.
In connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with broker-
dealers or other financial institutions, which may in turn engage in
short sales of the Registrable Securities in the course of hedging the
positions they assume. The Selling Securityholder may also sell
Registrable Securities short and deliver Registrable Securities to close
out such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
(8) Are you a Member, an affiliate of a Member, or a person associated with
a Member, of the National Association of Securities Dealers, Inc. (the
"NASD")?
Yes _____ No _____
If the answer to Question 8 is "yes", state (a) the name of any such
NASD Member, (b) the nature of your affiliation or association with such
NASD Member, (c) information as to such NASD Member's participation in
any capacity in the Offering or the original placement of the
Securities, (d) the number of shares of equity securities or face value
of debt securities of the Company owned by you, (e) the date such
securities were acquired and (f) the price paid for such securities.
________________________________________________________________________
________________________________________________________________________
____________________________________________.
(9) If you answered "yes" to Question 8 above, please fill out the following
table with respect to any purchases from the Company or any of its
Affiliates in a private placement within twelve months prior to the date
hereof (excluding your purchase of the Shares).
Date of
Purchase
Seller
Amount and Name
of Securities
Price or Other
Consideration
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M. The Selling Securityholder also acknowledges that
it understands that the answers to this Questionnaire are furnished for use in
connection with the Registration Statement and any amendments or supplements
thereto filed with the SEC pursuant to the Securities Act of 1933, as amended.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date
on which such information is provided to the Company, the Selling
Securityholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (9)
above and the inclusion of such information in the Shelf Registration
Statement and related Prospectus. The Selling Securityholder understands that
such information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
The Selling Securityholder acknowledges that material misstatements and
omissions of material facts in the Registration Statement and any amendments
or supplement thereto may give rise to civil and criminal liabilities to the
Company and to each officer and director of the Company signing the
Registration Statement and to other persons signing such document. As a
result, in accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information
as may be required by law for inclusion in the Shelf Registration Statement,
the Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) to the Company:
Protein Design Labs, Inc.
34801 Campus Drive
Fremont, California 94555
Attention: Senior Vice President Legal and Licensing
(ii) with a copy to:
Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, California 94301-1825
Attention: Greg Gallo
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities Beneficially Owned by such Selling Securityholder and the
Registrable Securities listed in Item (3) above). This Agreement shall be
governed in all respects by the laws of the State of New York.
I confirm that, to the best of my knowledge and belief, the foregoing
statements (including without limitation the answers to this Questionnaire)
are correct.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: __________________
__________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By: __________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT
ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, California 94301-1825
Attention: Bradley Gersich
APPENDIX 1
DEFINITIONS
For the purpose of this Questionnaire, the following definitions apply:
1. Affiliate. As used in Questions 1 - 7 and Question 9, a person is an
"Affiliate" of a person if such person controls, is controlled by, or is under
common control with, another person. Please assume that an "Affiliate" of the
Company includes without limitation, any 5% stockholder of the Company
(including any person who owns, controls, or holds or holds an option to
acquire, and has the power to vote, 5% or more of the Company's outstanding
voting securities). "Control" is the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
an entity, whether through the ownership of voting securities, by contract or
otherwise.
As used in Question 8 of this Questionnaire, an "affiliate" of an NASD
member has the following meaning:
(1) a company which controls, is controlled by or is under common
control with a member;
(2) the term affiliate is presumed to include, but is not limited to,
the following:
(a) a company will be presumed to control a member if the
company beneficially owns 10% or more of the outstanding
voting securities of a member which is a corporation, or
beneficially owns a partnership interest in 10% or more of
the distributable profits or losses of a member which is a
partnership;
(b) a member will be presumed to control a company if the member
and persons associated with the member beneficially own (i)
10% or more of the outstanding subordinated debt of a
company, (ii) 10% or more of the outstanding voting
securities of a company which is a corporation or (iii) a
partnership interest in 10% or more of the distributable
profits or losses of a company which is a partnership;
(c) a company will be presumed to be under common control with a
member if:
(i) the same natural person or company controls both the
member and company by beneficially owning 10% or more
of the outstanding voting securities of a member or
company which is a corporation, or by beneficially
owning a partnership interest in 10% or more of the
distributable profits or losses of a member or company
which is a partnership; or
(ii) a person having the power to direct or cause the
direction of the management or policies of the member
or the company also has the power to direct or cause
the direction of the management or policies of the
other entity in question.
2. Beneficial Owner. A "Beneficial Owner" of a security includes any
person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares voting power and/or
investment power with respect to such security. Voting power includes "the
power to vote, or to direct the voting, of such security" and investment power
includes "the power to dispose, or to direct the disposition, of such
security."
A person is also a Beneficial Owner of a security if he has the right to
acquire beneficial ownership of such security, at any time within sixty days,
including but not limited to, any right to acquire through: (a) the exercise
of an option, warrant or right, (b) the conversion of a convertible security,
(c) the power to revoke a trust, discretionary account or similar arrangement,
or (d) the automatic termination of a trust, discretionary account or similar
arrangement; provided, however, that if the acquisition of an option, warrant,
right, convertible security or power described in (a), (b) or (c) is for the
purpose of maintaining or obtaining control over the issuer of the security,
the holder of the option, warrant, right, convertible security or power shall,
immediately upon such acquisition and regardless of when it is exercisable, be
deemed a beneficial owner of the underlying securities.
The possession of the legal power to vote and/or direct the disposition
of securities, absent unusual circumstances, will be sufficient to confer
beneficial ownership. Such power may be held directly, or indirectly, through
one or more controlled entities.
3. Material Relationship. The term "material relationship" has not been
defined by the Securities and Exchange Commission (the "SEC"). The SEC,
however, is likely to construe as material any relationship which tends to
impact arm's length bargaining in dealings with a company, whether arising
from a close business connection, family relationship, a relationship of
control or otherwise. For example, you should conclude that you have such a
relationship with any organization of which you own, directly or indirectly,
10% more of the outstanding voting stock, or in which you have some other
substantial interest, and with any person or organization with whom you have,
or with whom any relative (or any other person or organization as to which you
have any of the foregoing other relationships) has, a contractual
relationship.
4. Member. Rule 0120 of the NASD's Rules of Fair Practice defines the term
"member" to mean any individual, partnership, corporation or other legal
entity admitted to membership in the NASD, and Article l of the NASD's By-Laws
defines the term "person associated with a member" to mean every sole
proprietor, partner, officer, director, or branch manager of any member, or
any natural person occupying a similar status or performing similar functions,
or any natural person engaged in the investment banking or securities business
who is directly or indirectly controlling or controlled by such member (for
example, any employee), whether or not such person is registered or exempt
from registration with the NASD.
