Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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AMERICAN BIOGENETIC SCIENCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2655906
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1375 Akron Street, Copiague, New York 11726
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
Timothy J. Roach, Treasurer
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
(Name and address of agent for service)
(516) 789-2600
(Telephone number, including area code, of agent for service)
with a copy to:
Leonard W. Suroff, Esq.
1375 Akron Street
Copiague, New York 11726
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum Amount
each class Amount offering aggregate of
of securities to be price per offering registration
to be registered registered(1) share price fee
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Class A Common
Stock, par value 100,000 shares $4.78 $ 478,000 $ 164.83
$.001 per share 900,000 shares $4.78 4,302,000 1,483.45
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Total 1,000,000 shares $ 4,780,000 $1,648.28
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(a) Pursuant to Rule 416(b), there shall also be deemed covered hereby
all additional securities resulting from anti-dilution adjustments
under the 1996 Stock Option Plan.
(b) Estimated solely for the purpose of calculating the registration fee
on the basis of, pursuant to Rule 457(h): (i) with respect to options
heretofore granted to purchase 100,000 shares, the exercise price
thereof of $4.78 per share and (ii) with respect to the remaining
900,000 shares, the average of the high and low sales prices per
share of the registrant's Common Stock on the NASDAQ National Market
System on July 30, 1996.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 and the Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 heretofore filed by the Company with the Commission (File No.
0-19041) pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"1934 Act"), and the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on February 25, 1991 under
the 1934 Act, including any amendment or report filed for the purpose of
updating such description, are incorporated herein by reference.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as the registrant, may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than a derivative action
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably
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believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court determines such person
is fairly and reasonably entitled to indemnity for such expenses. Section 7 of
Article VII of the registrant's By-laws provides for indemnification of
directors, officers, employees and agents of the Company to the extent permitted
by the DGCL. In addition, Article 9 of the registrant's Restated Certificate of
Incorporation provides, in general, that no director of the registrant shall be
liable to the registrant or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL (which
provides that under certain circumstances, directors may be jointly and
severally liable for willful or negligent violations of the DGCL provisions
regarding the payment of dividends or stock repurchases or redemptions), or (iv)
for any transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number
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4.01 Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of Delaware on July 30, 1996.
4.02 By-Laws of the Company, as amended.
5.01 Opinion and consent of Leonard W. Suroff, Esq. as to the legality of
the Class A Common Stock being offered.
23.01 Consent of Arthur Andersen LLP
23.02 Consent of Leonard W. Suroff, Esq. (contained in Exhibit 5.01).
*99.01 American Biogenetic Sciences, Inc. 1996 Stock Option Plan.
Incorporated by reference to Exhibit A to the Company's Proxy
Statement dated April 29, 1996 used in connection with the Company's
1996 Annual Meeting of Stockholders (File No. 0-19041).
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* Filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Copiague, State of New York, on the 31st day of July,
1996.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Alfred J. Roach
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Alfred J. Roach, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 31st day of July, 1996.
Signature Title
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/s/Alfred J. Roach Chairman of the Board (Chief Executive Officer)
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Alfred J. Roach
/s/ Josef C. Schoell Vice President, Finance (Principal Financial and
- ------------------------- Accounting Officer)
Josef C. Schoell
/s/ Paul E. Gargan Director
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Paul E. Gargan
/s/ Ellena M. Byrne Director
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Ellena M. Byrne
/s/ Joseph C. Hogan Director
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Joseph C. Hogan
/s/ Timothy J. Roach Director
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Timothy J. Roach
/s/ William G. Sharwell Director
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William G. Sharwell
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EXHIBIT INDEX
Exhibit
Number
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4.01 Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of Delaware on July 30, 1996.
4.02 By-Laws of the Company, as amended.
5.01 Opinion and consent of Leonard W. Suroff, Esq. as to the legality of
the Class A Common Stock being offered.
23.01 Consent of Arthur Andersen LLP
23.02 Consent of Leonard W. Suroff, Esq. (contained in Exhibit 5.01).
*99.01 American Biogenetic Sciences, Inc. 1996 Stock Option Plan.
Incorporated by reference to Exhibit A to the Company's Proxy
Statement dated April 29, 1996 used in connection with the Company's
1996 Annual Meeting of Stockholders (File No. 0-19041).
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* Filed herewith.
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICAN BIOGENETIC SCIENCES, INC.
It is hereby certified that:
1. The present name of the Corporation (hereinafter called the
"Corporation") is American Biogenetic Sciences, Inc., which is the name under
which the Corporation was originally incorporated. The date of filing the
original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware is September 1, 1983.
2. The provisions of the Certificate of Incorporation of the
Corporation, as heretofore amended and/or supplemented, are hereby restated and
integrated into the single instrument without further amendment and without any
discrepancy between the provisions of the Certificate of Incorporation as
heretofore amended and supplemented and the provisions of the said single
instrument hereinafter set forth.
3. The Board of Directors of the Corporation has duly adopted this
Restated Certificate of Incorporation pursuant to the provisions of Section 245
of the General Corporation Law of the State of Delaware in the form set forth as
follows:
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"RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICAN BIOGENETIC SCIENCES, INC.
* * * * *
1. The name of the Corporation is
AMERICAN BIOGENETIC SCIENCES, INC.
2. The address of its registered office in the State of Delaware is
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The aggregate number of shares which the Corporation shall have
authority to issue is 53,000,000, of which (i) 50,000,000 shares, having a par
value of $.001 per share, shall be Class A Common Stock, and (ii) 3,000,000
shares, having a par value of $.001 per share, shall be Class B Common Stock.
The following sets forth the relative rights, powers, preferences and
limitations of the shares of each class of stock.
(a) The holders of Class A Common Stock and the holders of Class
B Common Stock shall be entitled to the same rights and privileges, and shall
share equally, share and share alike, in the distribution of any funds which the
Board of Directors may declare or set aside or pay out as
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dividends, and shall share equally, share and share alike, in the distribution
of any and all dividends and in the distribution of assets in the event of
liquidation, whether voluntary or involuntary, and after the payment of all
debts of the Corporation, and shall be alike in all other respects, except that
each holder of Class B Common Stock shall be entitled to ten votes for each
share of Class B Common Stock held by such holder, and each holder of Class A
Common Stock shall be entitled to one vote for each share of Class A Common
Stock held by such holder. The holders of the Class A Common Stock and Class B
Common Stock shall vote as one class.
(b) Each share of Class B Common Stock may be converted into one
share of Class A Common Stock at the option of the holder thereof.
(c) No person holding shares of Class B Common Stock of record
(hereinafter called a "Class B Holder") may transfer, and the Corporation shall
not register the transfer of, such shares of Class B Common Stock, as Class B
Common Stock, whether by sale, assignment, gift, bequest, appointment or
otherwise, except to a Permitted Transferee, and upon any attempted transfer of
shares not permitted hereunder said shares of Class B Common Stock shall be
converted into Class A Common Stock. A Permitted Transferee shall mean, with
respect to each person from time to time shown as the record holder of shares of
Class B Common Stock:
(i) a trust principally for the benefit of the
Class B Stockholder; and
(ii) a partnership or corporation a majority of
the beneficial ownership of which is owned by the Class B Stockholder.
(d) Notwithstanding anything to the contrary set forth herein,
any Class B Holder may pledge such Holder's shares of Class B Common Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such
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shares shall not be transferred to or registered in the name of the pledgee and
shall remain subject to the provisions of this Article 4. In the event of
foreclosure or other similar action by the pledgee, such pledged shares of Class
B Common Stock may only be converted into shares of Class A Common Stock.
(e) At any time when the number of outstanding shares of Class B
Common Stock as reflected on the stock transfer books of the Corporation falls
below 5% of the aggregate number of the issued and outstanding shares of the
Class A Common Stock and Class B Common Stock of the Corporation, or the Board
of Directors and the holders of a majority of the outstanding shares of Class B
Common Stock approve the conversion of all of the Class B Common Stock into
Class A Common Stock, then, immediately upon the occurrence of either such
event, the outstanding shares of Class B Common Stock shall be converted into
shares of Class A Common Stock. In the event of such a conversion, certificates
formerly representing outstanding shares of Class B Common Stock shall thereupon
and thereafter be deemed to represent the like number of shares of Class A
Common Stock.
(f) Shares of Class B Common Stock shall be registered in the
names of the beneficial owners thereof and not in "street" or "nominee" name.
For this purpose, a "beneficial owner" of any shares of Class B Common Stock
shall mean a person who, or an entity which, possess the power, either singly or
jointly, to direct the voting or disposition of such shares. The Corporation
shall note on the certificates for shares of Class B Common Stock the
restrictions on transfer and registration of transfer imposed by this Article 4.
(g) The Corporation shall, at all times, reserve and keep
available out of authorized but unissued shares of Class A Common Stock, solely
for the purpose of effecting the conversion of
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Class B Common Stock, such number of shares of Class A Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of Class B Common Stock.
5. The Corporation is to have perpetual existence.
6. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the by-laws of the Corporation.
7. Elections of Directors need not be by written ballot unless the
by-laws of the Corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the by-laws of the Corporation.
8. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
9. No Director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary duty as
a Director, except for liability (1) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the Delaware General Corporation Law, or (4) for
any transaction from which the Director derived an improper personal benefit."
Signed on July 29, 1996
/s/ Alfred J. Roach
---------------------------
Alfred J. Roach, Chairman of the
Board of Directors
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AMERICAN BIOGENETIC SCIENCES, INC.
* * *
BY - LAWS
* * *
AS AMENDED AS OF JUNE 10, 1996
ARTICLE I
OFFICES
Section 1. The registered offices shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders, shall be held on the
first Tuesday of June if not a legal holiday, and if a legal holiday, then on
the next secular day following, at 10:00 A.M.,
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or at such other date and time as shall be designated by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire
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capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
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Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
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ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three (3) nor more than nine (9). The exact number
of directors within the maximum and minimum limitation specified herein shall be
fixed from time to time by resolution of the board of directors. The directors
shall be elected as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
Section 2. The directors shall have the power, from time to time, to
increase or decrease their own number, within the maximum and minimum
limitations specified therein, by resolution of the board of directors.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify, unless sooner displaced. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. If, at the time of filling any vacancy or any
newly created di rectorship, the directors then in office shall constitute less
than a majority of the whole board (as con stituted immediately prior to any
such increase), the Court of Chancery may, upon application of any stockholder
or stockholders holding at least ten percent of the total number of the shares
at the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill
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any such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
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Section 7. Special meetings of the board may be called by the
president on ten days' notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors unless
the board consists of only one director; in which case special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by- laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by- laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the
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meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
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Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by- laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall
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not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a chairman of the board, a president, a
vice-president, a secretary and a treasurer. The board of directors may also
choose additional vice-presidents, and one or more assistant secretaries and
assistant treasurers. Any number of offices may be held by the same person,
unless the certificate of incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
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Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE CHAIRMAN OF THE BOARD
Section 6. The chairman of the board shall be the chief executive
officer of the corporation, shall preside at all meetings of the shareholders
and the board of directors shall have general and active management in the
business of the corporation and shall see that all orders and resolutions of the
board of directors are carried into effect. He shall, to the same extent as the
president, have authority to execute bonds, mortgages and other contracts,
except where required by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE PRESIDENT
Section 7. The president shall, unless another officer of the
corporation is designated as such, be the chief operating officer of the
corporation; in the absence of the chairman of the board, shall preside at all
meetings of the stockholders and the board of directors and shall perform such
other duties and have such other powers as the board of directors and the
chairman of the board may
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from time to time prescribe. He may, to the same extent as the chairman of the
board, execute bonds, mortgages and other contracts, except where required by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
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authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be
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satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
chairman or vice-chairman of the board of directors, or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
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issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
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FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
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CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the
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board of directors by the certificate of incorporation at any regular meeting of
the stockholders or of the board of directors or at any special meeting of the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal by-laws is conferred
upon the board of directors by the certificate of incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal by-laws.
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AMERICAN BIOGENETIC SCIENCES, INC.
- --------------------------------------------------------------------------------
New York Office: 1375 Akron Street, Copiague, New York 11726 * Tel:(516)789-2600
Fax: (516)789-1661
July 31, 1996
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
Gentlemen:
I have acted as counsel to American Biogenetic Sciences, Inc. (the
"Company") in con nection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to 1,000,000 shares of Class A Common Stock, par value $.001
per share, of the Company, subject to the Company's 1996 Stock Option Plan (the
"Plan").
In connection with the foregoing, I have examined, among other
things, the Registration Statement and originals or copies, satisfactory to me,
of all such corporate records and of all such agreements, certificates and other
documents as I have deemed relevant and necessary as a basis for the opinion
hereinafter expressed. In such examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals
and the conformity with the original documents of documents submitted to me as
copies. As to any facts material to such opinion, I have, to the extent that
relevant facts were not independently established by me, relied on certificates
of public officials and certificates, oaths and declarations of officers or
other representatives of the Company.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware; and
2. The shares of the Company's Class A Common Stock to be issued
pursuant to the exercise of options granted or to be granted under the Plan will
be, when issued pursuant to the provisions of the Plan, validly issued, fully
paid and non-assessable.
I hereby consent to the filing of a copy of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Leonard W. Suroff
---------------------
Leonard W. Suroff, Esq.
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 28, 1996
included in American Biogenetic Sciences, Inc.'s Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
August 2, 1996
