<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. __)*
American Biogenetic Sciences, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Class A Common Stock, Par Value $0.001 Per Share
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(Title of Class of Securities)
024611105
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(CUSIP Number)
Jose M. de Lasa, 100 Abbott Park Road
Abbott Park, Illinois 60064-6400; Phone 847 937 8905
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 27, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ _ ].
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies should be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 024611105
- --------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Abbott Laboratories
IRS Identification No. 36-0698440
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2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [___]
(b) [___]
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3) SEC USE ONLY
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4) SOURCE OF FUNDS
OO (see Item 3 below)
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5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [___]
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6) CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
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NUMBER OF (7) SOLE VOTING POWER
SHARES 2,782,931
BENEFICIALLY --------------------------------------------
OWNED BY EACH (8) SHARED VOTING POWER
REPORTING 0
PERSON WITH -------------------------------------
(9) SOLE DISPOSITIVE POWER
2,782,931
--------------------------------------------
(10) SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,782,931
- --------------------------------------------------------------------------------
12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) [___]
- --------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.5% (see Item 5 below)
- --------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
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Page 2 of 6 pages
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ITEM 1. SECURITY AND ISSUER
This statement relates to shares of the Class A Common Stock, par
value $0.001 per share (the "Common Stock"), of American Biogenetic Sciences,
Inc., a Delaware corporation (the "Issuer"), whose principal executive
offices are located at 1375 Akron Street, Copiague, New York 11726.
ITEM 2. IDENTITY AND BACKGROUND
(a) - (c), and (f) The person filing this statement is
Abbott Laboratories ("Abbott"), an Illinois corporation. Abbott's principal
business is the discovery, development, manufacture, and sale of a broad and
diversified line of health care products and services. Abbott's principal
office is located at 100 Abbott Park Road, Abbott Park, Illinois 60064-6400.
The names, citizenship, business addresses, present principal
occupation or employment and the name, and the principal business and address
of any corporation or other organization in which such employment is
conducted of the directors and executive officers of Abbott are as set forth
in Exhibit 1 hereto and incorporated herein by this reference.
(d) and (e) Neither Abbott, nor to the best of its knowledge, any
person listed on Exhibit 1 has during the last five years (i) been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Abbott acquired 2,782,931 shares of Common Stock (the "Shares") at
an aggregate purchase price of $1,500,000. The source of funds for the
Shares is Abbott's general assets.
ITEM 4. PURPOSE OF THE ACQUISITION
Abbott acquired the Shares as an investment and in
connection with its license, research, development, marketing and sale
agreement with the Issuer.
(a) - (j) At present, Abbott does not have any plans or proposals
which would relate to or result in transactions of the kind described in
paragraphs (a) through (j) of Item 4 of Schedule 13D of the Securities and
Exchange Commission. Abbott does, however, reserve the
Page 3 of 6 pages
<PAGE>
right to adopt such plans or proposals subject to compliance with applicable
regulatory requirements.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Abbott is the beneficial owner of the Shares, representing
approximately 7.5% of the outstanding shares of the Common Stock.
(b) Abbott will have sole power to vote or to direct the vote
and the sole power to dispose or to direct the disposition of the Shares.
(c) Except as described herein, there have been no transactions
by Abbott or the persons whose names are listed on Exhibit 1 in securities of
the Issuer during the past sixty days.
(d) No one other than Abbott is known to have the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from a sale of, the Shares.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The summaries of certain terms of the following agreements do not
purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the agreements and reference is
made to the full text of such agreements which are filed as exhibits to this
statement and are incorporated herein by reference.
Page 4 of 6 pages
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Abbott purchased the Shares pursuant to the terms of a Stock
Purchase Agreement, dated January 27, 2000, by and between Abbott and the
Issuer. In addition, Abbott acquired certain registration rights under a
Registration Rights Agreement, dated January 27, 2000, by and between Abbott
and the Issuer. At any time after the first anniversary of the Registration
Rights Agreement, Abbott may request the Issuer to file a registration
statement registering the resale of the Shares. The Issuer is required to
file a registration statement on Form S-3 within 45 days following such
request. Additionally, subject to certain exceptions under Section 2.2 of
the Registration Rights Agreement, if at any time after the first anniversary
of the Registration Rights Agreement, the Issuer determines to register any
of its securities, the Issuer will give Abbott notice of such registration.
The Issuer will use reasonable efforts to include in such registration Shares
not previously registered or sold to the public with respect to which the
Issuer receives a written request (within 15 days of the notice) to include
in the registration.
Abbott must provide the Issuer with notice of its intent to sell Shares
pursuant to a registration statement. The Issuer may refuse Abbott the right to
resell Shares pursuant to a registration statement if the Issuer delivers a
certificate to Abbott to the effect that a sale pursuant to the registration
statement could violate federal securities laws. In such an event, the Issuer
shall either use commercially reasonable efforts to promptly amend the
registration statement, if necessary, and take other actions necessary to allow
such sale under the federal securities laws, or exercise the right described in
the next paragraph.
The Issuer's board of directors in its good faith judgement, after
consultation with counsel, may decline to permit the resale of any Shares for up
to 90 days, if the filing of a registration statement to permit the proposed
sale would adversely affect a pending or scheduled public offering, acquisition,
merger, or similar transaction, or would require disclosure of another material
development before the time it would otherwise be required to be disclosed in a
manner adverse to the Issuer. This right may not be exercised more than twice in
any 12 month period.
Page 5 of 6 pages
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ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Information Concerning Executive Officers and
Directors of Abbott Laboratories.
Exhibit 2 - Stock Purchase Agreement, dated January 27,
2000.
Exhibit 3 - Registration Rights Agreement, dated
January 27, 2000.
*********************************
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Abbott Laboratories
DATED: February 7, 2000 By: /s/ Gary P. Coughlan
-----------------------------------------
Gary P. Coughlan, Senior Vice President,
Finance and Chief Financial Officer
Page 6 of 6 pages
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
1 Information Concerning Executive Officers and
Directors of Abbott Laboratories.
2 Stock Purchase Agreement, dated January 27, 2000.
3 Registration Rights Agreement, dated January 27, 2000.
</TABLE>
<PAGE>
Exhibit 1
Information Concerning Executive Officers and
Directors of Abbott Laboratories
--------------------------------
The current corporate officers and directors of Abbott Laboratories
are listed below. The address of Abbott Laboratories is: Abbott Laboratories,
100 Abbott Park Road, Abbott Park, Illinois 60064-6400. Abbott Laboratories
does not consider all of its corporate officers to be executive officers as
defined by the Securities Exchange Act of 1934 or Releases thereunder. Unless
otherwise indicated, all positions set forth below opposite an individual's
name refer to positions within Abbott Laboratories, and the business address
listed for each individual not principally employed by Abbott Laboratories is
also the address of the corporation or other organization which principally
employs that individual.
<TABLE>
<CAPTION>
POSITION/PRESENT PRINCIPAL
OCCUPATION OR EMPLOYMENT
NAME AND BUSINESS ADDRESS CITIZENSHIP
CORPORATE OFFICERS
- ------------------
<S> <C> <C>
Miles D. White(1) Chairman of the Board and Chief Executive Officer U.S.A.
Robert L. Parkinson, Jr.(1) President, Chief Operating Officer and Director U.S.A.
Joy A. Amundson(1) Senior Vice President, Ross Products U.S.A.
Christopher B. Begley(1) Senior Vice President, Chemical and Agricultural U.S.A.
Products
Thomas D. Brown(1) Senior Vice President, Diagnostic Operations U.S.A.
Gary P. Coughlan(1) Senior Vice President, Finance and Chief Financial U.S.A.
Officer
Jose M. de Lasa(1) Senior Vice President, Secretary and General U.S.A.
Counsel
William G. Dempsey(1) Senior Vice President, International Operations U.S.A.
Richard A. Gonzalez(1) Senior Vice President, Hospital Products U.S.A.
Arthur J. Higgins(1) Senior Vice President, Pharmaceutical Operations United Kingdom
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CORPORATE OFFICERS
- ------------------
Continued
- ---------
<S> <C> <C>
Thomas M. Wascoe(1) Senior Vice President, Human Resources U.S.A.
Catherine V. Babington Vice President, Investor Relations and Public U.S.A.
Affairs
Patrick J. Balthrop Vice President, Diagnostic Commercial U.S.A.
Operations
Mark E. Barmak Vice President, Government Affairs U.S.A.
Michael G. Beatrice Vice President, Corporate Regulatory and Quality U.S.A.
Science
Christopher A. Bleck Vice President, Pediatrics, Ross Products U.S.A.
Douglas C. Bryant Vice President, Diagnostic Operations, Asia U.S.A.
and Pacific
Gary R. Byers Vice President, Internal Audit U.S.A.
Thomas F. Chen Vice President, Pacific, Asia, and Africa U.S.A.
Operations
Edward J. Fiorentino Vice President, Pharmaceutical Products, U.S.A.
Marketing, and Sales
Gary L. Flynn(1) Vice President and Controller U.S.A.
Thomas C. Freyman Vice President and Controller, Hospital Products U.S.A.
Stephen R. Fussell Vice President, Compensation and Development U.S.A.
David B. Goffredo Vice President, European Operations U.S.A.
Robert B. Hance Vice President, Diagnostic Operations, Europe, Africa U.S.A.
and Middle East
Guillermo A. Herrera Vice President, Latin America and Canada Colombia
Operations
James J. Koziarz, Ph.D. Vice President, Diagnostic Products Research U.S.A.
and Development
Elaine R. Leavenworth Vice President, Abbott Health Systems U.S.A.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CORPORATE OFFICERS
- ------------------
Continued
- ---------
<S> <C> <C>
John M. Leonard Vice President, Pharmaceutical Development U.S.A.
Greg Linder Vice President and Treasurer U.S.A.
John F. Lussen Vice President, Taxes U.S.A.
Edward L. Michael Vice President, Diagnostic Assays and Systems U.S.A.
Karen L. Miller Vice President, Information Technology U.S.A.
Daniel W. Norbeck Vice President, Pharmaceutical Discovery U.S.A.
Edward A. Ogunro Vice President, Hospital Products Research and U.S.A.
Development
William H. Stadtlander Vice President, Ross Medical Nutritional Products U.S.A.
Marcia A. Thomas Vice President, Diagnostic Quality Assurance, U.S.A.
Regulatory Affairs and Compliance
Steven J. Weger Vice President, Corporate Planning and U.S.A.
Development
Susan M. Widner Vice President, Diagnostic Operations, U.S. and Canada U.S.A.
Lance B. Wyatt Vice President, Corporate Engineering U.S.A.
</TABLE>
(1) Pursuant to Item 401 (b) of Regulation S-K Abbott has identified these
persons as "executive officers" within the meaning of Item 401 (b).
<PAGE>
<TABLE>
<CAPTION>
NAME POSITION/PRESENT PRINCIPAL
OCCUPATION OR EMPLOYMENT
AND BUSINESS ADDRESS CITIZENSHIP
DIRECTORS
- ---------
<S> <C> <C>
H. Laurance Fuller Co-Chairman,
BP Amoco, p.l.c. U.S.A.
200 East Randolph Drive
Mail Code 3000
Chicago, Illinois 60601
David A. Jones Chairman of the Board U.S.A.
Humana Inc.
500 W. Main Street
Humana Building
Louisville, Kentucky 40202
Jeffrey M. Leiden, M.D., Pd.D. Elkan R. Blout Professor of Biological U.S.A.
Sciences
Harvard School of Public Health
Professor of Medicine
Harvard Medical School
Laboratory of Cardiovascular Biology
677 Huntington Ave. - Bldg. II, Rm. 117
Boston, Massachusetts 02115
The Rt. Hon. the Lord Physician, Politician, and Businessman United Kingdom
Owen CH House of Lords
Westminster, London
SW1A 0PW, England
Robert L. Parkinson, Jr. Officer of Abbott U.S.A.
Boone Powell, Jr. President and Chief Executive Officer U.S.A.
Baylor Health Care System and
Baylor University Medical Center,
Vice President, Baylor University
3500 Gaston Avenue
Dallas, Texas 75246
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
DIRECTORS - Continued
- ---------------------
<S> <C> <C>
Addison Barry Rand Chairman and Chief Executive Officer U.S.A.
Avis Rent A Car, Inc.
900 Old Country Road
Garden City, New York 11530
W. Ann Reynolds, Ph.D. President U.S.A.
The University of Alabama at Birmingham
701 S. 20th Street
Birmingham, Alabama 35294-0110
Roy S. Roberts Vice President and Group Executive U.S.A.
North American Vehicle Sales, Service and
Marketing
General Motors Corporati
100 Renaissance Center
Mail Code 482-A30-D10
Detroit, Michigan 48243
William D. Smithburg Retired Chairman, President and Chief U.S.A.
Executive Officer
The Quaker Oats Company
676 N. Michigan Avenue
Suite 3860
Chicago, Illinois 60611
John R. Walter Chairman of the Board, Manpower Inc.
401 N. Ahwatinee Road U.S.A.
Lake Forest, Illinois 60045
William L. Weiss Chairman Emeritus, Ameritech Corporation U.S.A.
One First National Plaza
Suite 2530C
Chicago, Illinois 60603-2006
Miles D. White Officer of Abbott U.S.A.
</TABLE>
<PAGE>
EXHIBIT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the
_____ day of January, 2000, by and between American Biogenetic Sciences,
Inc., a Delaware corporation ("ABS") and Abbott Laboratories, an Illinois
corporation ("Abbott").
WHEREAS, ABS and Abbott have entered into a Registration Rights
Agreement and an Exclusive License Agreement (the "License Agreement"), both
of even date herewith (collectively the "Alliance Agreements"); and
WHEREAS, subject to the terms and conditions of this Agreement and
on the basis of the representations and warranties set forth herein, ABS and
Abbott have agreed to the purchase and sale of shares of ABS's Class A common
stock $0.001 par value per share (the "Class A Common Stock").
NOW THEREFORE, ABS and Abbott agree as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement and on the basis of the representations and
warranties set forth herein, ABS shall issue and sell to Abbott and Abbott
shall purchase from ABS at the Share Closing provided for in SECTION 1.3,
shares of ABS's Class A Common Stock (the "Shares") having an aggregate value
of One Million Five Hundred Thousand Dollars ($1,500,000).
1.1 PRICE PER SHARE. The price per share to be paid by
Abbott for each of the Shares (the "Price per Share") shall be equal to the
arithmetic average for the twenty (20) consecutive trading day period ending
on the second day preceding the date of this Agreement of (i) the last sale
price, as reported on the Small Cap Market, of the Class A Common Stock for
the days that it was traded on that market, and (ii) the last sale price
reported on the OTC Bulletin Board, or if no sale is reported that day, the
average of the bid and ask price, of the Class A Common Stock, as reported on
the OTC Bulletin Board for the days when it was primarily traded on that
market.
1.2 NUMBER OF SHARES. On the day before the Share Closing,
ABS and Abbott shall determine the number of Shares to be issued, purchased,
and sold pursuant to this Agreement by dividing:
(a) One Million Five Hundred Thousand Dollars
($1,500,000) by
(b) the Price per Share
<PAGE>
and then rounding down to the nearest whole number the number obtained by
that division.
1.3 SHARE CLOSING. The closing of the purchase and sale of
the Shares (the "Share Closing") shall be held at the offices of Brown,
Rudnick, Freed & Gesmer, One Financial Center, Boston, MA 02111, within ten
(10) business days following the date of this Agreement, at 10:00 a.m.
Eastern time, or at such other time and place upon which ABS and Abbott shall
agree.
1.4 DELIVERY. At the Share Closing, ABS will issue a
certificate to Abbott registered in Abbott's name representing the number of
Shares being purchased by Abbott against payment to ABS of One Million Five
Hundred Thousand Dollars ($1,500,000). Abbott shall pay the purchase price to
ABS by wire transfer to the bank account of ABS:
Name of Bank: Bank of New York
Name of Account: American Biogenetic Sciences, Inc.
Account Number: 041-5206748
ABA #: 021-000018
2. REPRESENTATIONS AND WARRANTIES OF ABS. Except as set forth in the
Schedule of Exceptions attached hereto as EXHIBIT - SECTION 2 (SCHEDULE OF
EXCEPTIONS), ABS hereby represents, warrants, and covenants to Abbott that:
2.1 AUTHORITY.
(a) ABS has full legal right power and authority to execute
and deliver this Agreement and each of the Alliance Agreements and to
consummate the transactions contemplated hereby and thereby.
(b) All corporate action on the part of ABS, its officers,
directors, and stockholders necessary for the execution and delivery of, and
the consummation of the transactions contemplated by, this Agreement and the
Alliance Agreements and the performance of all obligations of ABS hereunder
and thereunder have been taken.
(c) Assuming the due and proper execution and delivery by
Abbott, this Agreement and each of the Alliance Agreements, upon execution
and delivery by ABS, constitute legal, valid and binding obligations of ABS,
enforceable in accordance with their respective terms, except as may be
limited by: (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors rights generally, (ii) the effect of rules of law governing the
availability of equitable remedies, and (iii) the enforceability of the
indemnity obligations of SECTION 3.1 of the Registration Rights Agreement.
(d) The making and performance of this Agreement and the
Alliance Agreements by ABS and the consummation of the transactions
contemplated by this Agreement and the Alliance Agreements will not (i)
violate any provision of the organizational documents of ABS or any of its
subsidiaries, (ii) result in the creation of any lien, charge, security
interest or encumbrance upon any assets of ABS pursuant to the terms or
provisions of, and will not conflict
<PAGE>
with, result in the breach or violation of, or constitute, (either by itself
or upon notice or the passage of time or both), a default under or give rise
to a right of termination, cancellation, or acceleration of any obligation
to, or loss of benefits under any agreement, mortgage, deed of trust, lease,
franchise, licence, indenture, permit, or other instrument to which ABS or
any of its subsidiaries is a party or by which ABS or any of its subsidiaries
or any of their respective properties may be bound or affected, in each case
which would have a material adverse affect on the condition (financial or
otherwise), properties, business, prospects, or results of operations of ABS
and its subsidiaries taken as a whole (a "Material Adverse Effect") or which
would restrict the power of ABS to perform its obligations as contemplated by
this Agreement or the Alliance Agreements or, (iii) violate, to ABS's
knowledge, any statute or any authorization, judgment, decree, order, rule or
regulation of any court or any regulatory body, administrative agency, or
other governmental body applicable to ABS or any of its subsidiaries or any
of their respective properties.
(e) Except as disclosed on EXHIBIT - SECTION 2 (SCHEDULE OF
EXCEPTIONS) item 1 hereto, the Company does not have or otherwise contribute
to or participate in any employee benefit plan subject to the Employee
Retirement Income Security Act of 1974.
2.2 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
(a) ABS and each of its subsidiaries, has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with full power and authority
(corporate and other) to own and lease its properties and conduct its
businesses as presently conducted and as proposed to be conducted. ABS and
each of its subsidiaries is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which the ownership
or leasing of properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to so qualify
would not have a Material Adverse Effect; and no proceeding has been
instituted in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail such power and authority or qualification.
(b) Except as set forth on EXHIBIT - SECTION 2 (SCHEDULE OF
EXCEPTIONS) item 2, ABS has no direct or indirect loans to any partnership,
corporation, joint venture, business association, or other entity, nor does
it own or control, directly or indirectly, any interest in any partnership,
corporation, joint venture, association, or entity which is material to its
business. With respect to any person, the term "subsidiary" means any
corporation more than fifty percent (50%) of whose total interest is,
directly or indirectly, owned by that person. The term "affiliate" when used
to indicate a relationship with a specified person, shall mean a person that
directly, or indirectly through one or more intermediaries, control, or is
controlled by, or is under common control with, such specified person.
(c) ABS has delivered to Abbott complete and correct copies
of its Certificate of Incorporation and Bylaws as amended to the date hereof,
and will furnish to Abbott true and correct copies of any amendments thereto
throughout the term of this Agreement.
<PAGE>
2.3 CAPITALIZATION.
(a) The authorized capital stock of ABS consists of
100,000,000 shares of Class A Common Stock, and 3,000,000 shares of Class B
common stock (the "Class B Common Stock"). The Board of Directors has
approved the solicitation of stockholder consents to amend ABS's Certificate
of Incorporation to authorize up to 10,000,000 shares of preferred stock,
$.001 par value per share (the "Preferred Stock"), of which it intends to
designate 6,000 as Series A Preferred Stock.
(b) As of January 14, 2000, there were 36,918,510 shares of
Class A Common Stock issued and outstanding, 3,000,000 shares of Class B
Common Stock issued and outstanding and no shares of Preferred Stock issued
and outstanding. All such issued an outstanding shares have been duly
authorized and validly issued and are fully paid and non-assessable and no
issued and outstanding shares are subject to preemptive rights created by
statute, the ABS Certificate of Incorporation or Bylaws, or any agreement to
which ABS is a party or by which ABS may be bound.
(c) All outstanding shares of ABS's capital stock have been
issued in compliance with applicable federal and state securities laws.
(d) ABS has reserved for issuance an aggregate of
approximately 8,248,000 shares of Class A Common Stock for issuance in
connection with options and warrants.
(e) Except (i) as set forth in Section 2.3(d) above and on
EXHIBIT - SECTION 2 (SCHEDULE OF EXCEPTIONS) item 3, and (ii) for the right
of Abbott to acquire the Shares under this Agreement, there are no other
options, warrants, conversion privileges, or other contractual rights
presently outstanding or in existence to purchase or otherwise acquire any
authorized but unissued shares of ABS's capital stock or other securities or
the capital stock or other securities of any subsidiary of ABS.
2.4 SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW.
The purchase and sale of the Shares pursuant to this Agreement has been
approved by the Board of Directors of ABS prior to the date of this Agreement
for the purposes of Section 203 of the Delaware General Corporation Law
("Section 203") such that after the date of this Agreement, neither Abbott
nor any of its affiliates will be subject to the restrictions on business
combination transactions set forth in Section 203 with respect to ABS on
account of such purchase.
2.5 VALID ISSUANCE OF CLASS A COMMON STOCK. The Shares have
been duly authorized and, when issued, delivered, and paid for in the manner
set forth in this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable, and Abbott shall have good and marketable title to
the Shares free of any liens or restrictions (unless created by Abbott),
other than the restrictions expressly set forth in this Agreement or the
Alliance Agreements or under applicable state and federal securities laws. No
preemptive rights or other rights to subscribe for or purchase exist with
respect to the issuance and sale of the Shares by ABS pursuant to this
Agreement.
2.6 GOVERNMENTAL CONSENTS. Other than compliance with the
Securities Act of 1933, as amended (the "Securities Act") and such filings as
may be required to be made with the National Association of Securities
Dealers, no consent, approval order or authorization of, or
<PAGE>
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of ABS is required
in connection with the consummation of the transactions contemplated by this
Agreement.
2.7 OFFERING. Subject in part to the truth and accuracy of
Abbott's representations set forth in SECTION 3 of this Agreement, the offer,
sale, and issuance of the Class A Common Stock as contemplated by this
Agreement are exempt from the registration requirements of the Securities
Act, and neither ABS nor any authorized agent acting on its behalf will take
any action hereafter that would cause the loss of such exemption.
2.8 LITIGATION. Other than as disclosed in its SEC
Documents, there are no legal or governmental actions, suits or proceedings
pending or, to ABS's knowledge, threatened to which ABS or any of its
subsidiaries is or may be a party or of which property owned or leased by ABS
or any of its subsidiaries is or may be the subject, which actions, suits or
proceedings might, individually or in the aggregate, prevent or adversely
affect the transactions contemplated by this Agreement or result in a
Material Adverse Effect. ABS is not a party or subject to the provisions of
any material injunction, judgment, decree or order of any court, regulatory
body, administrative agency, or other governmental body. There are no
material legal or governmental actions, suits, or proceedings pending or, to
ABS's knowledge, threatened against any executive officers or directors of
ABS.
2.9 DISCLOSURE. ABS has provided Abbott with all the
information that Abbott has requested for deciding whether to purchase the
Class A Common Stock. Neither this Agreement, nor any other statements or
certificates made or delivered in connection herewith or therewith contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein or therein not misleading.
2.10 CHANGES. Since September 30, 1999, except as
otherwise disclosed in the Schedule of Exceptions:
(a) ABS has not incurred any material liabilities or
obligations, indirect, direct or contingent, or entered into any material
verbal or written agreement or other transaction which is not in the ordinary
course of business;
(b) ABS has not sustained any material loss or interference
with its business or properties from fire, flood, windstorm, accident, or
other calamity, whether or not covered by insurance;
(c) ABS has not paid or declared any dividends or other
distributions with respect to its capital stock and ABS is not in default in
the payment of principal or interest on any outstanding debt obligations;
(d) there has not been any change in the capital stock or,
other than in the ordinary course of business, indebtedness material to ABS;
and
(e) there has not been any event, change or development
resulting in or which may reasonably be expected to result in a Material
Adverse Event.
<PAGE>
2.11 SEC DOCUMENTS.
(a) Since January 1, 1997 ABS has filed each statement,
annual, quarterly, and other report, registration statement and definitive
proxy statement required to be filed (other than preliminary material) by ABS
with the United States Securities and Exchange Commission (the "SEC
Documents"). As of their respective filing dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Securities Exchange Act")
as the case may be, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements made therein, in light
of the circumstances in which they were made, not misleading.
(b) The audited consolidated financial statements and
unaudited consolidated interim financial statements of ABS included in ABS's
SEC Documents fairly present in all material respects in conformity with
generally accepted accounting principles applied on a consistent basis
(except as may be indicated in the notes thereto), the consolidated financial
position of ABS as of the dates thereof and ABS's consolidated results of
operations and cash flows for the periods then ended. Except as reflected or
reserved against in the consolidated balance sheet of ABS at September 30,
1999 or the Schedule of Exceptions, ABS has no liabilities of any nature
(whether accrued, absolute, contingent or otherwise), except for liabilities
incurred in the ordinary course of business since that date and liabilities
which would not, individually or in the aggregate, have a Material Adverse
Effect.
2.12 USE OF PROCEEDS. ABS will use the proceeds from the
sale of the Shares for research and development and for working capital.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ABBOTT. Abbott
hereby represents, warrants, and covenants to ABS that:
3.1 AUTHORIZATION. Abbott has full power and authority to
execute and deliver, and to consummate the transactions contemplated by the
Share Closing and this Agreement. All corporate action on the part of Abbott
necessary for (i) the execution and delivery of, and the consummation of the
transactions contemplated by, this Agreement; and (ii) as of the Share
Closing, the performance of all obligations of Abbott under this Agreement,
has been taken. Assuming the due and proper execution and delivery by ABS,
this Agreement, upon execution and delivery by Abbott, constitutes a legal,
valid and binding obligation of Abbott, enforceable in accordance with its
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization, or other laws of general application relating to or affecting
the enforcement of creditors rights generally, and (ii) the effect of rules
of law governing the availability of equitable remedies.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is
made with Abbott in reliance upon Abbott's representation to ABS, which by
Abbott's execution of this Agreement Abbott hereby confirms, that the shares
to be received by Abbott will be acquired for investment for Abbott's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that Abbott has no present intention of
selling, granting any participation in, or otherwise distributing the same.
By executing this Agreement,
<PAGE>
Abbott further represents that Abbott does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant participations to such person or to any third person, with respect to
any of the Shares.
3.3 GOVERNMENTAL CONSENTS. Other than compliance with the
Securities Act, the Securities Exchange Act, and such filings as may be
required to be made with the Securities and Exchange Commission or the
National Association of Securities Dealers, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part
of Abbott is required in connection with the consummation of the transactions
contemplated by this Agreement.
3.4 NO CONSENT. No consent, approval, waiver or other
action by any entity under any material contract, agreement, indenture,
lease, instrument, or other document to which Abbott is a party or by which
it is bound is required or necessary for the execution, delivery and
performance of, or the consummation of the transactions contemplated by, this
Agreement by Abbott.
3.5 DISCLOSURE OF INFORMATION. Abbott believes it has
received all the information it considers necessary or appropriate for
deciding whether to purchase the Shares. Abbott further represents that it
has had an opportunity to ask questions and receive answers from ABS
regarding the terms and conditions of the offering of the Shares and the
business, properties, prospects, and financial condition of ABS. The
foregoing, however, does not limit or modify the representations and
warranties of ABS in SECTION 2 of this Agreement or the right of Abbott to
rely on those representations and warranties.
3.6 INVESTMENT EXPERIENCE. Abbott is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Shares.
Abbott has not been organized for the purpose of acquiring the Shares.
3.7 RESTRICTED SECURITIES. Abbott understands that the
Shares it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from ABS in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances. In this
connection, Abbott represents that it is familiar with Securities and
Exchange Commission Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
3.8 LEGENDS.
(a) Each certificate or instrument representing Shares
shall bear legends in substantially the following forms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED
<PAGE>
IN RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT, OR (II) IN COMPLIANCE WITH RULE 144, OR
(III) PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER OF THESE SECURITIES THAT SUCH REGISTRATION OR
COMPLIANCE IS NOT REQUIRED AS TO SUCH SALE, OFFER OR
DISTRIBUTION".
(b) The certificate shall also bear any other legends
required by Delaware law or applicable blue sky or state securities laws.
Except as provided in the Registration Rights Agreement, ABS need not
register a transfer of any of the Shares and may also instruct its transfer
agent not to register a transfer of any Shares, unless the conditions
specified in the foregoing legends are satisfied to the extent applicable.
3.9 ACCREDITED INVESTOR. Abbott is an "accredited investor"
within the meaning of Securities and Exchange Commission Rule 501 of
Regulation D, as now in effect.
4. CONDITIONS OF ABBOTT'S OBLIGATIONS AT SHARE CLOSING. Abbott's
obligations to purchase the Shares at the Share Closing are subject to
fulfillment, on or prior to the Share Closing with respect to the Shares, of
each of the following conditions unless waived by Abbott.
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of ABS contained in SECTION 2 shall be true and correct when made
and at the Share Closing with the same effect as though such representations
and warranties had been made on and as of the date of the Share Closing.
4.2 PERFORMANCE. ABS shall have performed and complied with
all agreements, obligations, and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Share
Closing.
4.3 QUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall be duly
obtained and effective as of the Share Closing.
4.4 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Share
Closing and all documents incident thereto shall be reasonably satisfactory
in form and substance to Abbott, and it shall have received all such
counterpart original and certified or other copies of such documents as it
may reasonably request.
4.5 ALLIANCE AGREEMENTS. The parties shall have entered
into each of the Alliance Agreements and the Alliance Agreements remain in
full force and effect.
<PAGE>
4.6 OPINION OF COUNSEL TO ABS. Abbott shall have received
from Brown, Rudnick, Freed & Gesmer, counsel to ABS, an opinion addressed to
it, dated as of the date of the Share Closing and in substantially the form
of EXHIBIT 4.6.
4.7 NO ORDER PENDING. There shall not then be in effect any
order enjoining or restraining the transactions contemplated by this
Agreement or the Alliance Agreements.
4.8 COMPLIANCE CERTIFICATE. ABS shall have delivered to
Abbott a certificate, in substantially the form of EXHIBIT 4.8, executed on
behalf of ABS by the Chief Executive Officer of ABS, dated as of the date of
the Share Closing and certifying to the fulfillment of the conditions
specified in SECTION 4.1.
5. CONDITIONS OF ABS'S OBLIGATIONS AT SHARE CLOSING. ABS's
obligations to issue and sell the Shares at the Share Closing are subject to
fulfillment, on or prior to the Share Closing with respect to the Shares, of
each of the following conditions unless waived by ABS.
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Abbott contained in SECTION 3 shall be true and correct when
made and at the Share Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Share Closing.
5.2 PAYMENT OF PURCHASE PRICE. Abbott shall have
delivered the purchase price for the Shares.
5.3 QUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall be duly
obtained and effective as of the Share Closing for those shares.
5.4 ALLIANCE AGREEMENTS. The parties shall have entered
into each of the Alliance Agreements and the Alliance Agreements remain in
full force and effect.
5.5 OPINION OF COUNSEL TO ABBOTT. ABS shall have received
from Brian J. Smith, Divisional Vice President, Domestic Legal Operations and
Assistant Secretary, an opinion addressed to it, dated as of the date of the
Share Closing and certifying, in substantially the form of EXHIBIT 5.5.
5.6 NO ORDER PENDING. There shall not then be in effect any
order enjoining or restraining the transactions contemplated by this
Agreement or the Alliance Agreements.
5.7 COMPLIANCE CERTIFICATE. Abbott shall have delivered to
ABS a certificate, in substantially the form of EXHIBIT 5.7, executed on
behalf of Abbott by an officer of Abbott, dated as of the date of the Share
Closing and certifying to the fulfillment of the conditions specified in
SECTION 5.1.
<PAGE>
6. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES. The warranties, representations
and covenants of ABS and Abbott contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Share Closing and shall in no way be affected by any investigation of the
subject matter thereof made by or on behalf of Abbott or ABS.
6.2 ENTIRE AGREEMENT; CONTROLLING DOCUMENT. This Agreement
and the Alliance Agreements constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede any and all prior
negotiations, correspondence and understandings between the parties with
respect to the subject matter hereof, whether oral or in writing.
6.3 ASSIGNMENT: SUCCESSORS AND ASSIGNS. No provision of
this Agreement may be assigned without the prior written consent of the other
party hereto. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties (including transferees of
any of the Shares). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
6.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 DELAY AND WAIVER. No delay on the part of either party in
exercising any right under this Agreement shall operate as a waiver of such
right. The waiver by either party of any other term or condition of this
Agreement shall not be construed as a waiver of a subsequent breach or failure
of the same term or condition or a waiver of any other term or condition
contained in this Agreement.
6.6 ASSIGNMENT: SUCCESSORS AND ASSIGNS. No provision of
this Agreement may be assigned without the prior written consent of the other
party hereto. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
6.7 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Delaware without regard to conflict
of law principles.
6.8 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be sent by
personal delivery, facsimile, overnight courier or mailed by certified or
registered mail, postage prepaid, return receipt requested, to the facsimile
number or address as follows:
ABS: American Biogenetic Sciences, Inc.
1375 Akron Street
<PAGE>
Copiague, NY 11726
Telephone: (516) 789-2600
Facsimile: (516) 789-1661
Attention: Chairman
with a copy (which will not constitute notice) to:
Brown, Rudnick, Freed & Gesmer
One Financial Square
Boston, MA 02111
Telephone: (617) 856-8327
Facsimile: (617) 856-8201
Attention: Mark A. Hofer, Esq.
Abbott: Abbott Laboratories
100 Abbott Park Road
Dept. 309, Bldg. AP30
Abbott Park, IL 60064-3537
Telephone: (847) 938-6863
Facsimile: (847) 938-5383
Attention: Senior Vice President,
Pharmaceutical Operations
with a copy (which will not constitute notice) to:
Abbott Laboratories
100 Abbott Park Road
Dept. 364, Bldg. AP6D
Abbott Park, Illinois 60064-6049
Telephone: (847) 937 - 8906
Facsimile: (847) 938 - 6277
Attention: Senior Vice President, Secretary
and General Counsel
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this SECTION 6.8. Such notices or other
communications shall be deemed delivered upon receipt, in the case of
overnight delivery, personal delivery or facsimile transmission (as evidenced
by the confirmation thereof), or 2 days after deposit in the mails (as
determined by reference to the postmark).
6.9 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.10 EXPENSES. Irrespective of whether either of the Share
Closing is effected, each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance
of this Agreement.
<PAGE>
6.11 ALTERNATIVE DISPUTE RESOLUTION. The parties shall
attempt to resolve amicably disputes arising between them regarding the
validity, construction, enforceablity or performance of the terms of this
Agreement and any differences or disputes in the interpretation of the
rights, obligations, liabilities and/or remedies under this Agreement, that
have been identified in a written notice from one party to the other, by good
faith settlement discussions between the Senior Vice President,
Pharmaceutical Operations of Abbott and the Chief Executive Officer of ABS.
The parties agree that any dispute that arises in connection with the
Agreement, that cannot be resolved amicably by such representatives within
thirty (30) days after the receipt of such written notice, shall be resolved
by binding Alternative Dispute Resolution in the manner described in EXHIBIT
C to the License Agreement.
6.12 AMENDMENTS AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of ABS and Abbott. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon
each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities are
convertible), each future holder of all such securities and ABS.
6.13 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
6.14 FURTHER ASSURANCES. ABS and Abbott shall do and
perform or cause to be performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments or
documents as the other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated by the Agreement. Neither ABS
nor Abbott shall voluntarily undertake any course of action inconsistent with
the satisfaction of the requirements applicable to them as set forth in this
Agreement, and each shall promptly do all such acts and take all such
measures as may be appropriate to enable them to perform as early as
practicable their obligations under this Agreement.
6.15 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall
create or be deemed to create any rights in any person or entity not a party
to his Agreement.
6.16 MUTUAL DRAFTING. This Agreement is the joint product
of ABS and Abbott and each provision of the Agreement has been subject to
consultation, negotiation and agreement of ABS and Abbott and their
respective legal counsel and advisers and any rule of construction that a
document shall be interpreted or construed against the drafting party shall
not apply.
6.17 FINDER'S FEE.
(a) Each party represents that it neither is nor will be
obligated for any finder's fee or commission in connection with this
transaction. Abbott agrees to indemnify and hold
<PAGE>
harmless ABS from any liability for any commission or compensation in the
nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which such Abbott or any of its
officers, partners, employees or representatives is responsible.
(b) ABS agrees to indemnify and hold harmless Abbott from
any liability for any commission or compensation in the nature of a finders'
fee (and the costs and expenses of defending against such liability or
asserted liability) for which ABS or any of its officers, employees or
representatives is responsible.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: ____________________
Alfred J. Roach
Chairman
ABBOTT LABORATORIES:
By: __________________
Title: __________________
<PAGE>
EXHIBIT - SECTION 2
SCHEDULE OF EXCEPTIONS
<TABLE>
<S> <C>
1. SECTION 2.1(e) - EMPLOYEE BENEFIT PLANS
2. SECTION 2.2(b) - LOANS / SUBSIDIARIES AND AFFILIATES
NAME PERCENTAGE OWNERSHIP AMOUNT OF LOAN
3. SECTION 2.3(e) - OPTIONS, WARRANTS, CONVERSION PRIVILEGES OR OTHER
CONTRACTUAL RIGHTS
</TABLE>
<PAGE>
EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
this ____ day of January, 2000, by and between American Biogenetic Sciences,
Inc., a Delaware corporation ("ABS"), and Abbott Laboratories, an Illinois
corporation ("Abbott").
RECITALS
WHEREAS, ABS and Abbott are parties to an Exclusive License
Agreement (the "License Agreement") and a Stock Purchase Agreement (the
"Stock Purchase Agreement"), both of which are of even date herewith; and;
WHEREAS, the execution and delivery of this Agreement are a
condition to the Share Closing of the Stock Purchase Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS. All terms not otherwise defined in this
Agreement shall have the same meanings ascribed to them in the Stock Purchase
Agreement. For purposes of this Agreement:
1.1 EXCHANGE ACT. The term "Exchange Act" shall mean
the Securities Exchange Act of 1934, as amended.
1.2 REGISTER, REGISTERED, AND REGISTRATION. The
terms "register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document
in compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
1.3 REGISTRABLE SECURITIES. The term "Registrable
Securities" means such portion of the Shares that has not previously been
registered or sold to the public.
1.4 REGISTRATION STATEMENT. The term "Registration
Statement" means a registration statement filed with the SEC under the
Securities Act to register the resale of the Registrable Securities by Abbott.
1.5 RULE 144. The term "Rule 144" shall mean Rule
144 promulgated by the SEC (or its successor rule).
1.6 SEC. The term "SEC" shall mean the Securities
and Exchange Commission.
1.7 SECURITIES ACT. The term "Securities Act" means
the Securities Act of 1933, as amended.
<PAGE>
1.8 SHARES. The term "Shares" means the shares of
Class A common stock of ABS, $.001 par value per share, issued to Abbott
pursuant to the Stock Purchase Agreement and any common stock of ABS issued
as a dividend or other distribution with respect to such common stock.
2. REGISTRATION. ABS covenants and agrees as follows:
2.1 REGISTRATION RIGHTS - GENERALLY. At any time
after the first anniversary of this Agreement, Abbott may request ABS to file
a Registration Statement registering the resale of the Shares. Within
forty-five (45) days following such request, ABS shall prepare and file a
Registration Statement on Form S-3 (or such other short form registration
statement as is then available) and any related qualification or compliance
with respect to all of the Shares so as to permit or facilitate the sale and
distribution of all of the Shares. ABS agrees to use reasonable commercial
efforts to cause the Registration Statement to be declared effective as soon
as practicable after filing, but in any event no later than three (3)
business days after any notification by the SEC of its decision not to review
the Registration Statement or its determination that it has completed its
review of the Registration Statement and will accept an acceleration request.
ABS agrees it will not include any securities of ABS other than the Shares
and will not permit any other person or entity to include any additional
securities in the Registration Statement to be filed pursuant to this SECTION
2.1.
2.2 PIGGYBACK REGISTRATION RIGHTS. If, at any time
after the first anniversary of this Agreement, ABS shall determine to
register any of its securities, either for its own account or the account of
a security holder or holders exercising their respective registration rights,
other than (i) a registration relating solely to employee benefit plans on
Form S-8 (or a similar successor form), or (ii) a registration on Form S-4
(or a similar successor form) relating solely to a transaction subject to
Rule 145 under the Securities Act, ABS will promptly give Abbott written
notice thereof, and subject to the terms of SECTION 2.3 below, use its
reasonable efforts to include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all Registrable Securities specified in a
written request to ABS made within fifteen (15) business days after the
receipt of such written notice by Abbott.
2.3 UNDERWRITING.
(a) If the registration of which ABS gives
notice pursuant to SECTION 2.2 is for a
registered offering involving an
underwriting, then Abbott's right to
registration shall be conditioned upon
Abbott's participation in the underwriting
and the inclusion of Abbott's Registrable
Securities in the underwriting to the extent
provided in this Agreement. Abbott (together
with ABS and the holders of other securities
of ABS distributing their securities through
that underwriting (such other holders being
termed the "Other Holders")) shall enter
into an underwriting agreement in customary
-2-
<PAGE>
form with the representative of the
underwriter or underwriters selected by ABS.
(b) Notwithstanding any other provision of this
SECTION 2, if the representative of the
underwriters advises ABS in writing that
marketing factors require a limitation on
the number of shares to be underwritten,
then ABS shall so inform Abbott and the
Other Holders. The number of shares of ABS
common stock being sold by ABS for its own
account shall not be reduced by operation of
this SECTION 2.3. The number of shares of
Registrable Securities held by Abbott and
the Other Holder(s) that may be included in
the underwriting (in addition to those being
sold by ABS for its own account) shall be
allocated among Abbott and the Other Holders
in proportion (as nearly as practicable) to
the amount of Registrable Securities owned
by each such holder.
(c) Any holder which does not agree to the terms
of the such underwriting shall be excluded
from that underwriting by written notice
from ABS or the underwriter. Any Registrable
Securities or other securities excluded or
withdrawn from that underwriting shall be
withdrawn from the registration.
2.4 REGISTRATION EXPENSES. ABS shall pay all
"registration expenses" (as defined below) in connection with any
registration, qualification or compliance under this Agreement. Abbott shall
pay all "selling expenses" (as defined below). The term "registration
expenses" shall mean all expenses, except for selling expenses, incurred by
ABS in complying with the registration provisions of this Agreement,
including, without limitation, all registration, qualification and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for
ABS, accounting fees, blue sky fees and expenses, and the expense of any
attest service incident to or required by any such registration. The term
"selling expenses" shall mean all selling commissions, underwriting fees and
stock transfer taxes applicable to the Shares and all fees and disbursements
of counsel for Abbott.
2.5 OBLIGATIONS OF ABS. In the case of a
registration effected by ABS pursuant to this SECTION 2, ABS will use
reasonable efforts to:
(a) keep such registration effective until the
earliest of:
(i) such date as all of the Shares
have been sold, or
(ii) if ABS is not then eligible to
effect such registration on
Form S-3 (or a similar successor
form), one hundred and twenty
(120) days after the effective date
of the Registration Statement, or
-3-
<PAGE>
(iii) the termination of the registration
rights pursuant to SECTION 2.9
hereof.
(b) prepare and file with the SEC such
amendments and supplements to the
Registration Statement and the prospectus
used in connection with the Registration
Statement as may be necessary to comply with
the provisions of the Securities Act with
respect to the disposition of all securities
covered by the Registration Statement;
(c) furnish such number of prospectuses,
prospectus supplements, and other documents
incident thereto, including any amendment of
or supplement to the prospectus, as Abbott
from time to time may reasonably request;
(d) cause all Shares registered as described
herein to be listed on any securities
exchange or quoted on any quotation service
on which similar securities issued by ABS
are then listed or quoted;
(e) provided a transfer agent and registrar for
all Registrable Securities registered
pursuant to the Registration Statement and a
CUSIP number for all such Shares;
(f) otherwise use reasonable efforts to comply
with all applicable rules and regulations of
the SEC; and
(g) file the documents required of ABS and
otherwise use reasonable efforts to maintain
requisite blue sky clearance in:
(i) all jurisdictions in which any of
the Shares are originally sold; and
(ii) all other states specified in
writing by Abbott, provided as to
this clause (ii), however, that ABS
shall not be required to qualify to
do business or consent to service
of process in any state in which it
is not now so qualified or has not
so consented.
2.6 SELLING PROCEDURES.
(a) In the event Abbott intends to sell Shares
pursuant to a Registration Statement, Abbott
shall give ABS five (5) business days notice
of its intent to sell in reliance on such
Registration Statement (the "Notice of
Sale"). ABS may refuse to permit Abbott to
resell any Shares pursuant to the
Registration Statement; provided, however,
that in order to exercise this right, ABS
must
-4-
<PAGE>
deliver a certificate in writing within
three (3) business days following the Notice
of Sale to Abbott to the effect that a sale
pursuant to the Registration Statement in
its then current form could constitute a
violation of the federal securities laws. In
such an event, ABS shall either (i) use
commercially reasonable efforts to promptly
amend the Registration Statement, if
necessary, and take all other actions
necessary to allow such sale under the
federal securities laws, and shall notify
Abbott promptly after it has determined that
such sale has become permissible under the
federal securities laws, or (ii) exercise
its right under paragraph (b) below to delay
the sale.
(b) If in the good faith judgment of the Board
of Directors of ABS, after consultation with
counsel, the filing of a Registration
Statement or an amendment thereto or
prospectus supplement so as permit the
proposed sale without a violation of
securities laws would materially adversely
affect a pending or scheduled public
offering, or an acquisition, merger, or
similar transaction, or negotiations of
either of the foregoing, or would require
the disclosure of another material
development prior to the time it would
otherwise be required to be disclosed in a
manner adverse to the best interests of ABS,
then it may decline to permit the resale of
any Shares pursuant to the Registration
Statement for up to a maximum of ninety (90)
days, provided that it may not exercise this
right more than twice in any twelve (12)
month period. Abbott hereby covenants and
agrees that it will not sell any Shares
pursuant to the Registration Statement
during the periods sales in reliance upon
the Registration Statement are prohibited as
set forth in this SECTION 2.6.
2.7 INFORMATION FROM ABBOTT. It shall be a condition
precedent to the obligations of ABS to take any action pursuant to SECTION 2
of this Agreement with respect to the Shares that Abbott shall furnish to ABS
such information as ABS may reasonably request, including information
regarding Abbott, the Shares held by it, the intended method of disposition
of such securities, and such other information as required to effect the
registration of the Shares.
2.8 ASSIGNMENT OF REGISTRATION RIGHTS. The right to
cause ABS to register the Shares pursuant to this Agreement may be assigned
by Abbott to a transferee of the Shares only if:
(a) ABS is, prior to such transfer, furnished
with written notice of the name and address
of such transferee and the Shares with
respect to which such registration rights are
being assigned and a copy of a duly executed
written instrument in form reasonably
satisfactory to ABS by which such transferee
assumes all of the obligations and
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liabilities of its transferor hereunder and
agrees itself to be bound hereby;
(b) immediately following such transfer the
disposition of the Shares by the transferee
is restricted under the Securities Act;
(c) such assignment includes all of the Shares
then held by Abbott; PROVIDED, HOWEVER, that
such share limitation shall not apply to
transfers by Abbott to its affiliates if all
such transferees or assignees agree in
writing to appoint a single representative as
their attorney-in-fact for the purpose of
receiving any notices and exercising their
rights under this Agreement; and
(d) Abbott guarantees the performance of the
transferee of its obligations under this
Agreement.
2.9 TERMINATION OF REGISTRATION RIGHTS. The
registration rights provided in this Agreement shall terminate if Abbott may
sell all of the Shares pursuant to Rule 144 in any three (3) month period.
Upon the termination of registration rights pursuant to this SECTION 2.9, ABS
may withdraw the Registration Statement, or any portion thereof, covering the
Shares.
2.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934.
With a view to making available to Abbott the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the
SEC that may at any time permit Abbott to sell securities of ABS to the
public without registration or pursuant to a registration on Form S-3, ABS
agrees to:
(a) make and keep public information available,
as those terms are understood and defined in
SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all
reports and other documents required of ABS
under the Securities Act and the Exchange
Act; and
(c) furnish to Abbott, so long as Abbott owns
any Shares, forthwith upon request (i) a
written statement by ABS that it has complied
with the reporting requirements of SEC
Rule 144, the Securities Act and the Exchange
Act, or that it qualifies as a registrant
whose securities may be resold pursuant to
Form S-3, (ii) a copy of the most recent
annual or quarterly report of ABS and such
other reports and documents so filed by ABS,
and (iii) such other information as may be
reasonably requested in availing Abbott of
any rule or regulation of the SEC that
permits the selling of any such securities
without registration or pursuant to such form.
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3. INDEMNIFICATION AND CONTRIBUTION
3.1 INDEMNIFICATION BY ABS. ABS agrees to indemnify
and hold harmless Abbott, each of Abbott's directors, officers and U.S.
wholly-owned subsidiaries, and each person, if any, who controls Abbott
within the meaning of the Securities Act or the Exchange Act, from and
against any losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) to which they may become subject (under the Securities
Act or otherwise) insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are based upon
any untrue statements of a material fact contained in (or upon the omission
of a material fact from) a Registration Statement delivered or circulated by
Abbott in connection with a sale of ABS securities by Abbott, or arise out of
any failure by ABS to fulfill any undertaking included in the Registration
Statement, and ABS will, as incurred reimburse Abbott and such persons for
any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim; provided,
however, that ABS shall not be liable in any such case to the extent that
such loss, claim damage or liability arise out of, or is based upon (i) an
untrue statement made in (or upon the omission of a material fact from) such
Registration Statement in reliance upon and in conformity with written
information furnished to ABS by or on behalf of Abbott specifically for use
in preparation of the Registration Statement, (ii) the failure of Abbott to
comply with the covenants or agreements contained in SECTION 2.6 hereof, or
(iii) any untrue statement or omission in any prospectus that is corrected in
any subsequent prospectus that was delivered to Abbott prior to the pertinent
sale or sales by Abbott.
3.2 INDEMNIFICATION BY ABBOTT. Abbott agrees to
indemnify and hold harmless ABS, each of ABS's directors and officers, and
each person, if any, who controls ABS within the meaning of the Securities
Act or the Exchange Act, from and against any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) to which they may
become subject (under the Securities Act or otherwise) insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon: (i) either an untrue statement made
in or the omission of a material fact from such Registration Statement in
reliance upon and in conformity with written information furnished to ABS by
or on behalf of Abbott specifically for use in preparation of the
Registration Statement, (ii) the failure of Abbott to comply with the
covenants or agreements contained in SECTION 2.6 hereof, or (iii) any untrue
statement or omission in any prospectus that is corrected in any subsequent
prospectus that was delivered to Abbott prior to the pertinent sale or sales
by Abbott, and Abbott will, as incurred, reimburse ABS and such persons for
any legal or other expenses reasonably incurred in investigating, defending,
or preparing to defend any such action, proceeding, or claim; provided,
however, that Abbott shall not be liable for any amount in excess of the
amount by which the net amount received by Abbott from the sale of the Shares
to which such loss relates minus the amount of any damages which Abbott has
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission
3.3 INDEMNIFICATION PROCEDURES. Promptly after
receipt by any indemnified party of a notice of a claim or the beginning of
any action in respect of which indemnity is to be sought against an
indemnifying person pursuant to this SECTION 3, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action and, subject to the provisions hereinafter
stated, in case any such action shall be brought against
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an indemnified person and the indemnifying person shall have been notified
thereof, the indemnifying person shall be entitled to participate therein,
and, to the extent that it shall wish, to assume the defense thereof, with
counsel reasonably satisfactory to the indemnified person. After notice from
the indemnifying person to such indemnified person of the indemnifying
person's election to assume the defense thereof, the indemnifying person
shall not be liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate in the reasonable
judgment of the indemnified person for the same counsel to present both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel
at the expense of such indemnifying person.
3.4 CONTRIBUTION. If the indemnification provided
for in this SECTION 3 is unavailable to or insufficient to hold harmless an
indemnified party under SECTION 3.1 or 3.2 above in respect of any losses,
claims, damages, or liabilities (or actions or proceedings 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) in
such proportion as is appropriate to reflect the relative fault of ABS on one
hand and Abbott on the other 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 shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to information
supplied by ABS on one hand or Abbott on the other and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. ABS and Abbott agree that it would not be
just and equitable if contribution pursuant to this SECTION 3.4 were
determined by PRO RATA allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this SECTION 3.4. 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 in this SECTION 3.4 shall be deemed to include any
legal or other 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.
3.5 CONTINUING OBLIGATIONS. The obligations of ABS
and Abbott under this SECTION 3 shall survive the completion of the offering
of the Shares pursuant to the Registration Statement and shall be in addition
to any liability that ABS and Abbott may otherwise have.
4. MISCELLANEOUS.
4.1 SURVIVAL OF WARRANTIES. The warranties,
representations and covenants of ABS and Abbott contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement.
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4.2 ENTIRE AGREEMENT, CONTROLLING DOCUMENT. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, and understandings between the parties with respect to the
subject matter hereof, whether oral or in writing.
4.3 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
4.4 DELAY AND WAIVER. No delay on the part of either
party in exercising any right under this Agreement shall operate as a waiver
of such right. The waiver by either party of any other term or condition of
this Agreement shall not be construed as a waiver of a subsequent breach or
failure of the same term or condition or a waiver of any other term or
condition contained in this Agreement.
4.5 GOVERNING LAW. This Agreement shall be governed
by and construed under the laws of the State of Delaware without regard to
conflicts of law principles.
4.6 NOTICES, ETC. All notices and other
communications required or permitted hereunder shall be in writing and shall
be sent by personal delivery, facsimile, overnight courier or mailed by
certified or registered mail, postage prepaid, return receipt requested, to
the facsimile number or address as follows:
ABS: American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, NY 11726
Telephone: (516) 789-2600
Facsimile: (516) 789-1661
Attention: Chairman
with a copy (which will not constitute notice)
to:
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Telephone: (617) 856-8200
Facsimile: (617) 856-8201
Attention: Mark A. Hofer, Esq.
Abbott: Abbott Laboratories
100 Abbott Park Road
Dept. 309, Bldg. AP30
Abbott Park, IL 60064-3537
Telephone: (847) 938-6863
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Facsimile: (847) 938-5383
Attention: Senior Vice President,
Pharmaceutical Operations
with a copy (which will not constitute notice)
to:
Abbott Laboratories
100 Abbott Park Road
Dept. 364, Bldg. AP6D
Abbott Park, Illinois 60064-6049
Telephone: (847) 937 - 8906
Facsimile: (847) 938 - 6277
Attention: Senior Vice President, Secretary
and General Counsel
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this SECTION 4.6. Such notices or other
communications shall be deemed delivered upon receipt, in the case of
overnight delivery, personal delivery, or facsimile transmission (as
evidenced by the confirmation thereof), or 2 days after deposit in the mails
(as determined by reference to the postmark).
4.7 TITLES AND SUBTITLES. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
4.8 EXPENSES. Each party shall pay all costs and
expenses that it incurs with respect to the negotiation, execution, and
delivery of this Agreement.
4.9 ALTERNATIVE DISPUTE RESOLUTION. The parties
agree to effectuate all reasonable efforts to resolve in an amicable manner
any and all disputes between them in connection with this Agreement. The
parties agree that any dispute that arises in connection with this Agreement,
which cannot be amicably resolved informally shall be finally settled as set
forth in the Alternative Dispute Resolution provisions of Exhibit C to the
License Agreement.
4.10 AMENDMENTS AND WAIVERS. Any term of this
Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of ABS and the
Abbott.
4.11 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
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4.12 FURTHER ASSURANCES. ABS and Abbott shall do and
perform or cause to be performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments, or
documents as the other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated by the Agreement. Neither ABS
nor Abbott shall voluntarily undertake any course of action inconsistent with
the satisfaction of the requirements applicable to them as set forth in this
Agreement, and each shall promptly do all such acts and take all such
measures as may be appropriate to enable them to perform as early as
practicable their obligations under this Agreement.
4.13 NO THIRD PARTY RIGHTS. Nothing in this Agreement
shall create or be deemed to create any rights in any person or entity not a
party to his Agreement.
4.14 MUTUAL DRAFTING. This Agreement is the joint
product of ABS and Abbott and each provision of the Agreement has been
subject to consultation, negotiation and agreement of ABS and Abbott and
their respective legal counsel and advisers and any rule of construction that
a document shall be interpreted or construed against the drafting party shall
not apply.
4.15 SEC RULE CHANGES. To the extent necessary to
give effect to the agreements and understandings of the parties set forth in
this Agreement, any reference in this Agreement to any forms, rules,
regulations, or procedures of the SEC or any provision of the Securities Act
or the Exchange Act existing as of the date of this Agreement shall be deemed
to refer to any modifying, supplementing, or succeeding rules, regulations
procedures, or provisions as may exist from time to time after the date of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By:
-----------------------------
Alfred J. Roach, Chairman
ABBOTT LABORATORIES
By:
-----------------------------
Its:
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
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