SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
American Biogenetic Sciences, Inc.
---------------------------------
(Name of Issuer)
Class A Common Stock, par value $.001 per share
-----------------------------------------------
(Title of class of securities)
024611 10 5
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(CUSIP Number)
Leonard W. Suroff, Esq.
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
-----------------------------------
516-789-2600
(Person Authorized to Receive Notices and Communications)
October 1, 1998
------------------------------------
(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 [ ]
Page 1 of 36 Pages
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CUSIP No. 024611-10-5 13D Page 2 of 36 Pages
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1 NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alfred J. Roach
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
[ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 8,195,250
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 8,195,250
WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
8,195,250 (includes 3,000,000 shares issuable upon conversion of
Class B Common Stock and 1,160,000 shares issuable upon exercise
of options)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.7% (52.8% of voting power of all outstanding securities)
14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 024611-10-5 13D Page 3 of 36 Pages
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Item 1. Security and Issuer
This statement relates to the Class A Common Stock, $.001 par value
(the "Class A Common Stock"), of American Biogenetic Sciences, Inc. (the
"Company"). The Company's principal executive offices are located at 1375 Akron
Street, Copiague, New York 11726.
Item 2. Identity and Background
(a) This statement is filed by Alfred J. Roach (the
"Reporting Person").
(b) The residence address of the Reporting Person is
Route 2-Kennedy Avenue, Guaynabo, Puerto Rico 00657.
(c) The Reporting Person is Chairman of the Board of
Directors of the Company, the principal business
address of which is 1375 Akron Street, Copiague, New
York 11726.
(d) During the last five years, the Reporting Person has
not been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) During the last five years, the Reporting Person has
not been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction as a
result of which the Reporting Person 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 of any violation with
respect to such laws.
(f) The Reporting Person is a citizen of the United
States.
Item 3. Source and Amount of Funds or Other Consideration
All purchases of the Company's capital stock to date by the Reporting
Person have been made through the use of the Reporting Person's personal funds.
No portion of the funds used by the Reporting Person to purchase capital stock
of the Company has been provided from borrowed monies.
Item 4. Purpose of Transaction
The purpose of the acquisition of securities of the Company by the
Reporting Person has been to make investments in the Company, which has also had
the effect of the Reporting Person obtaining
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CUSIP No. 024611-10-5 13D Page 4 of 36 Pages
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and maintaining control of the Company. Except as noted below, the Reporting
Person does not have any present plans or proposals (although the right to
develop such plans or proposals is reserved) that relate to or would result in:
(i) the acquisition or the disposition of securities of the Company (although
the Reporting Person may, but is not obligated to, purchase securities of the
Company should the Company require additional funds); (ii) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation of the
Company or any of its subsidiaries (although neither the Company nor the
Reporting Person is presently a party to any agreement or understanding with
respect thereto, the Company is engaged in an acquisition strategy which, if
successful, could result in a business combination of the Company with one or
more entities which are unaffiliated with the Reporting Person; and the
Reporting Person, as a director and stockholder of the Company reserves the
right to vote to approve or disapprove of any such transaction); (iii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries; (iv) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board; (v) any material
change in the present capitalization or dividend policy of the Company; (vi) any
other material change in the Company's business or corporate structure; (vii)
any changes in the Company's charter, by-laws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Company by any person; (viii) causing a class of securities of the Company to be
delisted from a national securities exchange or cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national securities
association (except that the Company has received a letter from The Nasdaq Stock
Market, Inc. to the effect that if the market price of the Company's Common
Stock does not exceed $1.00 per share for ten consecutive trading days prior to
December 24, 1998, the Company's Class A Common Stock will be delisted from such
market on December 28, 1998); (ix) causing a class of equity securities of the
Company to become eligible for termination of registration pursuant to Section
12(g)(4) of the Securities Exchange Act of 1934; or (x) any action similar to
any of those enumerated above.
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CUSIP No. 024611-10-5 13D Page 5 of 36 Pages
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Item 5. Interest in Securities of the Issuer
The following information is as at November 23, 1998:
(a)(i) Amount Beneficially Owned: 8,195,250
Consists of (i) 4,035,250 shares of Class A Common Stock; (ii) 3,000,000 shares
of Class A Common Stock issuable upon conversion of the same number of shares of
the Company's Class B Common Stock, $.001 par value ("Class B Common Stock"),
each of which is owned by the Reporting Person and is convertible into one share
of Class A Common Stock; (iii) 1,160,000 shares of Class A Common Stock which
are not outstanding but which are subject to issuance upon exercise of options
granted to the Reporting Person under the Company's stock option plans (the
"Options"), all of which were fully exercisable on November 23, 1998. Each share
of Class B Common Stock is entitled to ten times the number of votes of each
share of Class A Common Stock.
(ii) Percent of Class: 20.7% of Class A Common Stock and 52.8% of
the voting power of the Company's Class A Common Stock and
Class B Common Stock when voting together as a single class.
Percent of Class is based on 35,525,306 shares of Class A Common Stock
outstanding on November 23, 1998 and assuming conversion of all shares of Class
B Common Stock beneficially owned by the Reporting Person and the exercise of
the Options. Percent of voting power assumes the foregoing except that it
assumes that the Class B Common Stock remains outstanding rather than being
converted.
(b) Number of shares to which such person has:
(i) sole power to vote or to direct the vote - 8,195,250
(ii) shared power to vote or to direct the vote - 0
(iii) sole power to dispose or to direct the disposition
of - 8,195,250
(iv) shared power to dispose or to direct the disposition
of - 0
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CUSIP No. 024611-10-5 13D Page 6 of 36 Pages
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(c) The following is a schedule of the transactions of the
Reporting Person in the Company's capital stock since September 1, 1998:
<TABLE>
<CAPTION>
Date of Number of Shares Total Purchased
Transaction Class Acquired Disposed of Price or Disposed of
----------- ----- -------- ----------- ----- --------------
<S> <C> <C> <C> <C> <C>
10/1/98 Class A 50,000 N/A Gift
10/1/98 Class B 500,000 $.40625 From Company
10/6/98 Class B 724,500 $.3125 From Company
10/27/98 Class A 4,000,000 $.25 From Company
10/29/98 Class A 5,000 $.4265 Open Market
10/29/98 Class A 5,000 $.365 Open Market
11/02/98 Class A 860,000 N/A Gifts
</TABLE>
(d) No other person is known to have the right to receive, or the
power to direct the receipt of, dividends from, or the proceeds from the sale
of, the securities of the Company owned by the Reporting Person.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
The Reporting Person does not have any contracts, arrangements,
understandings or relationship (legal or otherwise) with any person with respect
to securities issued by the Company, including, but not limited to, the transfer
or voting of any such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees or profits, divisions or profits or loss
or the giving or withholding of proxies, except for employee stock option
agreements entered into between the Reporting Person and the Company under the
Company's stock option plans.
Item 7. Material to be Filed as Exhibits
Exhibit 1 - Incentive Stock Option Agreement dated August 19,
1991 between the Company and the Reporting Person.
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CUSIP No. 024611-10-5 13D Page 7 of 36 Pages
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Exhibit 2 - Incentive Stock Option Agreement dated October 25,
1991 between the Company and the Reporting Person.
Exhibit 3 - Incentive Stock Option Agreement dated October 19,
1992 between the Company and the Reporting Person.
Exhibit 4 - Incentive Stock Option Agreement dated June 1, 1995
between the Company and the Reporting Person.
SIGNATURE
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.
Dated: November 25, 1998
/s/ Alfred J. Roach
--------------------
Alfred J. Roach
CUSIP No. 024611-10-5 13D Page 8 of 36 Pages
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Exhibit 1
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AMERICAN BIOGENETIC SCIENCES, INC.
---------------------------------
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
OPTION AGREEMENT made this 19th day of August 1991, between
AMERICAN BIOGENIC SCIENCES, INC . ("Company") and Alfred J. Roach, an employee
of the Company ("Optionee"), residing at 1385 Akron Street, Copiague, NY. 11726.
W I T N E S S E T H:
WHEREAS, the Company desires, by affording the Optionee an
opportunity to purchase its common stock, $.001 par value per share (the "Common
Stock"), as hereinafter provided, to carry out the purposes of the Company's
Stock Option Plan (the "Plan"):
NOW, THEREFORE, in consideration of the premises and of the
mutual promises hereinafter contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee
an option ("Option") to purchase all or any part of an aggregate of 375,000
shares of Common Stock (such number being subject to adjustment as provided in
Section 9 hereof) an the terms and conditions hereinafter set forth. The Option
is intended to be an "incentive stock option" as defined in Section 422A of the
Internal Revenue Code of 1986 or any corresponding provisions of succeeding law
(the "Code").
2. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option shall be $4.81 per share of Common Stock, which is
not less than one
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CUSIP No. 024611-10-5 13D Page 9 of 36 Pages
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hundred percent (100%) of the fair market value of a share of Common Stock on
the date hereof. Payment shall be made in cash, check or in shares of Common
Stock in the manner prescribed in Section 10 hereof.
3. Term of Option. The term of the Option shall be for a
period of ten (10) years from the date hereof, subject to earlier termination as
provided in Sections 6, 7 and a hereof.
4. Exercisability. The option may be exercised in whole or in
part at any time and from time to time prior to the termination of the Option,
as to all or any of the shares of Common Stock then purchasable hereunder;
provided, however, that no shares of Common Stock covered by the Option may be
purchased within the first twelve months' period after the date hereof, and that
in each subsequent twelve months' period during the term of the Option, the
holder of the option may purchase a number of shares of Common Stock equal to
one 100% of the total number of shares subject to the Option until one hundred
percent of the Option shall be exercisable (1) years after the date hereof). If
fewer than the number of available shares are purchased in any period under the
Option, the holder may purchase any such unpurchased shares in any subsequent
period during the term of the Option. In no event shall the Option be exercised
after the expiration of ten (10) years from the date hereof.
Except as provided in Sections 6, 7 and 3.0 hereof, the Option
may not be exercised at any time unless the Optionee shall then be and shall
have been, at all times from the date of grant of the Option, an employee of the
Company or of a subsidiary of the Company. The term "employee" shall include
officers and directors who are employees of the Company. The holder of the
Option shall not have any of the rights of a shareholder of the Company with
respect
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CUSIP No. 024611-10-5 13D Page 10 of 36 Pages
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to the shares of Common Stock covered by the Option until one or more
certificates for such shares of Common Stock shall have been issued to him upon
the due exercise of the Option.
5. Non-transferability. The Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and the Option
may be exercised during the lifetime of the Optionee only by him, more
particularly (but without limiting the generality of the foregoing), the Option
may not be assigned, transferred (except as provided above), pledged or
hypothecated in any way, shall not be assignable by operation of law, and shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without effect.
6. Employment. The granting of the Option is in consideration
of the Optionee's continuing employment by the Company; however, nothing in this
Option shall confer upon the Optionee the right to continue in the employment of
the Company or affect the right of the Company to terminate the Optionee's
employment at any time in its sole discretion, with or without cause.
In the event that the Optionee shall cease to be so employed
for any reason other than death, retirement with the consent of the Company or
disability (as determined by the committee appointed by the Board of Directors
of the Company to administer the Plan (the "Committee") in its sole discretion,
the Option shall terminate on the date of termination of employment or on a date
not more than three (3) months after such date of termination of employment (as
determined by the Committee in its sole discretion); provided, however, that in
the event of exercise after termination of employment, the Optionee shall not be
entitled to
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purchase any shares of Common Stock in excess of the number of shares which he
would have been permitted to purchase upon exercise of the Option an his date of
termination. If the Optionee is disabled (as determined by the Committee in its
sole discretion) or retires with the consent of the Company, the Option shall
terminate one (1) year after the date of disability and not later than three (3)
months after the date of retirement (as determined by the Committee in its sole
discretion).
7. Death Of Optionee,. If the Optionee shall die while in the
employ of the Company or a subsidiary of the Company, his estate, personal
representative, or beneficiary shall have the right, subject to the provisions
of Section 3 hereof, to exercise the Option (to the extent that the Optionee
would have been entitled to do so at the date of his death) at any time within
one (1) year from the date of his death.
8. Termination of Option. In the event of the institution of
any legal proceedings directed to the validity of the Plan pursuant to which the
Option is granted, or to any option granted under it, the Company may, in its
sole discretion, and without incurring any liability therefor to the Optionee or
any other person, terminate the Option.
9. Stock Splits, Mergers, Etc. In case of any stock split,
stock dividend or similar transaction which increases or decreases the number of
outstanding shares of Common Stock, appropriate adjustment sh all be made by the
Board of Directors, whose determination shall be final, to the number of shares
of Common Stock which may be purchased under the Plan and the number and option
exercise price per share which may be purchased under any outstanding options.
In the case of a merger, sale of assets or similar transaction which results in
a replacement of the Company's shares of Common Stock with stock of another
corporation, the
4
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CUSIP No. 024611-10-5 13D Page 12 of 36 Pages
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Company will make a reasonable effort, but shall not be required, to replace any
outstanding options with comparable options to purchase the stock of such other
corporation, or will provide for immediate maturity of all outstanding options,
with all options not being exercised within the time period specified by the
Board of Directors being terminated.
10. Method of Exercising Option. Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by written
notice to the Company as provided in Section 11. Such notice shall state the
election to exercise the Option and the number of shares of Common Stock in
respect of which it is being exercised. It shall be signed by the person or
persons so exercising the Option and shall be accompanied by payment of the full
purchase price of such shares in cash, by check or by the delivery of
certificates representing shares of Common Stock with fully executed stock
powers, and the Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate or certificates representing
such shares of Common Stock as soon as practicable after the notice and payment
have been received.
In the event the Option shall be exercised by any person or
persons other than the Optionee, pursuant to Section 7 hereof, such notice shall
be accompanied by appropriate proof of the right of such person or persons to
exercise the Option. All shares of Common Stock that shall be purchased upon the
exercise of the Option as provided herein shall be fully paid and
non-assessable.
11. General. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of Common Stock as
will be sufficient to satisfy the requirements of this Agreement, shall pay all
taxes with respect to the issue of shares of- Common Stock pursuant hereto and
all other fees and expenses necessarily incurred by the
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CUSIP No. 024611-10-5 13D Page 13 of 36 Pages
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Company in connection therewith, and will, from time to time, use its best
efforts to comply with all laws and regulations which, in the opinion of counsel
for the Company, shall be applicable thereto.
12. Representation of Optionee. The Optionee represents that
he and any related persons or entities, within Section 425(d) of the Code, do
not own as much as ten percent (10%) of the total combined voting power or value
of all capital stock of the Company, or any subsidiary of' the Company, and in
accepting the Option herein granted to him, agrees to the terms of the Option on
the date hereof.
13. Notices. Each notice relating to this Option Agreement
shall be in writing and delivered in person or by first class mail, postage
prepaid, to the proper address. Each notice shall be deemed to have been given
on the date it is received. Each notice to the Company shall be addressed to it
at its principal office (Attention: Treasurer). Each notice to the Optionee or
other person or persons then entitled to exercise the Option shall be addressed
to the Optionee or such other person or persons at the Optionee's address set
forth in the heading of this Agreement. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that affect.
14. Incorporation of Plan. Notwithstanding the terms and
conditions herein, any Option granted pursuant to this Agreement shall be
subject to and governed by all the terms and conditions of the Plan. A copy of
the Plan has been delivered to the Optionee and is hereby incorporated by
reference. In the event of any discrepancy or inconsistency between this
Agreement and the Plan, the terms of the Plan shall govern.
6
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CUSIP No. 024611-10-5 13D Page 14 of 36 Pages
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15. Enforceability. This Agreement shall be binding upon the
Optionee, his estate, his personal representatives and beneficiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed by one of its officers thereunto duly authorized, and the
Optionee has hereunto set his hand, all as of the day and year first above
written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Timothy J. Roach
-------------------------------
Timothy J. Roach
Title: Secretary-Treasurer
Optionee:
/s/ Alfred J. Roach
-----------------------------------
Alfred J. Roach
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CUSIP No. 024611-10-5 13D Page 15 of 36 Pages
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Exhibit 2
---------
AMERICAN BIOGENETIC SCIENCES, INC.
---------------------------------
INCENTIVE STOCK OPTION AGREEMENT
---------------------------------
OPTION AGREEMENT made this 25th day of October 1991, between
AMERICAN BIOGENETIC SCIENCES, INC. ("Company") and Alfred J. Roach, an employee
of the Company ("Optionee"), residing at P.O. Box 1001, Notre Dame, Ind. 46556
W I T N E S S E T H:
WHEREAS, the Company desires, by affording the Optionee an
opportunity to purchase its common stock, $.001 par value per share (the "Common
Stock") , as hereinafter provided, to carry out the purposes of the company's
Stock Option Plan (the "Plan"):
NOW, THEREFORE, in consideration of the premises and of the
mutual promises hereinafter contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee
an option ("Option") to purchase all or any part of an aggregate of, 350,000
shares of Common Stock (such number being subject to adjustment as provided in
Section 9 hereof) on the terms and conditions hereinafter set forth. The Option
is intended to be an "incentive stock option" as defined in Section 422A of the
Internal Revenue Code of 1986 or any corresponding provisions of succeeding law
(the "Code").
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CUSIP No. 024611-10-5 13D Page 16 of 36 Pages
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2. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option shall be $5.50 per share of Common Stock, which is
not less than one hundred percent (100%) of the fair market value of a share of
Common Stock on the date hereof. Payment shall be made in cash, check or in
shares of Common Stock in the manner prescribed in Section 10 hereof.
3. Term of Option. The term of the Option shall be for a
period of ten (10) years from the date hereof, subject to earlier termination as
provided in Sections 6, 7 and 8 hereof.
4. Exercisability. The option may be exercised in whole or in
part at any time and from time to time prior to the termination of the Option,
as to all or any of the shares of Common Stock then purchasable hereunder;
provided, however, that no shares of Common Stock covered by the Option may be
purchased within the first * months' period after the date hereof, and that in
each subsequent * months' period during the term of the Option, the holder of
the Option may purchase a number of shares of Common Stock equal to one * of the
total number of shares subject to the Option until one hundred percent of the
Option shall be exercisable on October 25, 1992. If fewer than the number of
available shares are purchased in any period under the Option, the holder may
purchase any such unpurchased shares in any subsequent period during the term of
the Option. In no event shall the Option be exercised after the expiration of
ten (10) years from the date hereof.
Except as provided in Sections 6, 7 and 10 hereof, the Option
may not be exercised at any time unless the Optionee shall then be and shall
have been, at all times from the
- --------
* 100% will become exercisable on October 25, 1992.
2
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date of grant of the Option, an employee of the Company or of a subsidiary of
the Company. The term "employee" shall include officers and directors who are
employees of the Company. The holder of the Option shall not have any of the
rights of a shareholder of the Company with respect to the shares of Common
Stock covered by the Option until one or more certificates for such shares of
Common Stock shall have been issued to him upon the due exercise of the Option.
5. Non-transferability. The Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and the Option
may be exercised during the lifetime of the Optionee only by him, more
particularly (but without limiting the generality of the foregoing), the Option
may not be assigned, transferred (except as provided above), pledged or
hypothecated in any way, shall not be assignable by operation of law, and shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without effect.
6. Employment. The granting of the Option is in consideration
of the Optionee's continuing employment by the Company; however, nothing in this
Option shall confer upon the Optionee the right to continue in the employment of
the Company or affect the right of the Company to terminate the Optionee's
employment at any time in its sole discretion, with or without cause.
In the event that the Optionee shall cease to be so employed
for any reason other than death, retirement with the consent of the Company or
disability (as determined by the committee appointed by the Board of Directors
of the Company to administer the Plan (the
3
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"Committee") in its sole discretion, the Option shall terminate on the date of
termination of employment or on a date not more than three (3) months after such
date of termination of employment (as determined by the committee in its sole
discretion); provided, however, that in the event of exercise after termination
of employment, the Optionee shall not be entitled to purchase any shares of
Common Stock in excess of the number of shares which he would have been
permitted to purchase upon exercise of the Option on his date of termination. If
the Optionee is disabled (as determined by the Committee in its sole discretion)
or retires with the consent of the Company, the Option shall terminate one (1)
year after the date of disability and not later than three (3) months after. the
date of retirement (as determined by the committee in its sole discretion).
7. Death of Optionee. If the Optionees shall die while in the
employ of the Company or a subsidiary of the Company, his estate, personal
representative, or beneficiary shall have the right, subject to the provisions
of Section 3 hereof, to exercise the Option (to the extent that the Optionee
would have been entitled to do so at the date of his death) at any time within
one (1) year from the date of his death.
8. Termination of Option. In the event of the institution of
any legal proceedings directed to the validity of the Plan pursuant to which the
Option is granted, or to any option granted under it, the Company may, in its
sole discretion, and without incurring any liability therefor to the Optionee or
any other person, terminate the Option.
9. Stock Splits, Mergers, Etc. In case of any stock split,
stock dividend or similar transaction which increases or decreases the number of
outstanding shares of Common Stock, appropriate adjustment shall be made by the
Board of Directors, whose determination shall
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be final, to the number of shares of Common Stock which may be purchased the
Plan and the number and option exercise price per share which may be purchased
under any outstanding- options. In the case of a merger, sale of assets or
similar transaction which results in a replacement of the Company's shares of
Common Stock with stock of another corporation, the Company will make a
reasonable effort, but shall not be required, to replace any outstanding options
with comparable options to purchase the stock of such other corporation, or will
provide for immediate maturity of all outstanding options, with all options not
being exercised within the time period specified by the Board of Directors being
terminated.
10. Method of Exercising Option. Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by written
notice to the Company as provided in Section 11. Such notice shall state the
election to exercise the option and the number of shares of Common Stock in
respect of which it is being exercised. It shall be signed by the person or
persons so exercising the Option and shall be accompanied by payment of the full
purchase price of such shares in cash, by check or by the delivery of
certificates representing shares of Common Stock with fully executed stock
powers, and the Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate or certificates representing
such shares of Common Stock as soon as practicable after the notice and payment
have been received.
In the event the Option shall be exercised by any person or
persons other than the Optionee, pursuant to Section 7 hereof, such notice shall
be accompanied by appropriate proof of the right of such person or persons to
exercise the Option. All shares of Common Stock that shall be purchased upon the
exercise of the Option as provided herein shall be fully paid and
non-assessable.
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CUSIP No. 024611-10-5 13D Page 20 of 36 Pages
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11. General. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of Common Stock as
will be sufficient to satisfy the requirements of this Agreement, shall pay all
taxes with respect to the issue of shares of- Common Stock pursuant hereto and
all other fees and expenses necessarily incurred by the Company in connection
therewith, and will, from time to time, use its best efforts to comply with all
laws and regulations which, in the opinion of counsel for the Company, shall be
applicable thereto.
12. Representation Optionee. The optionee represents that he
and any related persons or entities, within Section 425(d) of the Code, do not
own as much as ten percent (10%) of the total combined voting power or value of
all capital stock of the Company, or any subsidiary of the Company, and in
accepting the option herein granted to him, agrees to the terms of the option on
the date hereof.
13. Notices. Each notice relating to this Option Agreement
shall be in writing and delivered in person or by first class mail, postage
prepaid, to the proper address. Each notice shall be deemed to have been given
on the date it is received. Each notice to the Company shall be addressed to it
at its principal office (Attention: Treasurer). Each notice to the Optionee or
other person or persons then entitled to exercise the Option shall be addressed
to the Optionee or such other person or persons at the Optionee's address set
forth in the heading of this Agreement. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that effect.
14. Incorporation of Plan. Notwithstanding the terms and
conditions herein, any Option granted pursuant to this Agreement shall be
subject to and governed by all the terms
6
<PAGE>
CUSIP No. 024611-10-5 13D Page 21 of 36 Pages
- --------------------------------------------------------------------------------
and conditions of the Plan. A copy of the Plan has been delivered to the
Optionee and is hereby incorporated by reference. In the event of any
discrepancy or inconsistency between this Agreement and the Plan, the terms of
the Plan shall govern.
15. Enforceability. This Agreement shall be binding upon the
Optionee, his estate, his personal representatives and beneficiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed by one of its officers thereunto duly authorized, and the
Optionee has hereunto set his hand, all as of the day and year first above
written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Timothy J. Roach
-------------------------------
Timothy J. Roach
Title: Secretary-Treasurer
Optionee:
/s/ Alfred J. Roach
----------------------------------
Alfred J. Roach
7
CUSIP No. 024611-10-5 13D Page 22 of 36 Pages
- --------------------------------------------------------------------------------
Exhibit 3
---------
AMERICAN BIOGENETIC SCIENCES, INC.
---------------------------------
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
OPTION AGREEMENT made this 19th day of October, 1992, between
AMERICAN BIOGENETIC SCIENCES, INC. ("Company"), and Alfred J. Roach, an-employee
of the Company ("Optionee"), residing at P.O. Box 1001, Notre Dame, In. 46556.
W I T N E S S E T H:
WHEREAS, the Company desires, by affording the Optionee an
opportunity to purchase its common stock, $.001 par value per share (the "Common
Stock"), as hereinafter provided, to carry out the purposes of the Company's
Stock option Plan (the "Plan"):
NOW, THEREFORE, in consideration of the premises and of the
mutual promises hereinafter contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee
an option ("Option"') to purchase all or any part of an aggregate of 300,000
shares of Common Stock (such number being subject to adjustment as provided in
Section 9 hereof) on the terms and conditions hereinafter set forth. The Option
is intended to be an "incentive stock option" as defined in Section 422A of the
Internal Revenue Code of 1986 or any corresponding provisions of succeeding law
(the "Code").
<PAGE>
CUSIP No. 024611-10-5 13D Page 23 of 36 Pages
- --------------------------------------------------------------------------------
2. Purchase Price. The purchase price of the shares of Common
Stock covered by the option shall be $5.09 per share of Common Stock, which is
not less than one hundred percent (100%) of the fair market value of a share of
Common Stock on the date hereof. Payment shall be made in cash, check or in
shares of Common Stock in the manner prescribed in Section 10 hereof.
3. Term of Option. The term of the option shall be for a
period of ten (10) years from the date hereof, subject to earlier termination as
provided in Sections 6, 7 and 8 hereof.
4. Exercisability. The Option may be exercised in whole or in
part at any time and f rom time to time prior to the termination of the Option,
as to all or any of the shares of Common Stock then purchasable hereunder;
provided, however, that no shares of Common Stock covered by the Option may be
purchased within the first twelve months' period after the date hereof, and that
in each subsequent twelve months' period during the term of the Option, the
holder of the Option may purchase a number of shares of Common Stock equal to
one quarter of the total number of shares subject to the Option until one
hundred percent of the Option shall be exercisable (4) years after the date
hereof). If fewer than the number of available shares are purchased in any
period under the Option, the holder may purchase any such unpurchased shares in
any subsequent period during the term of the Option. In no event shall the
Option be exercised after the expiration of ten (10) years from the date hereof.
Except as provided in Sections 6, 7 and 10 hereof, the Option
may not be exercised at any time unless the Optionee shall then be and shall
have been, at all times from the date of grant of the Option, an employee of the
Company or of a subsidiary of the Company. The
2
<PAGE>
CUSIP No. 024611-10-5 13D Page 24 of 36 Pages
- --------------------------------------------------------------------------------
term "employee" shall include officers and directors who are employees of the
Company. The holder of the Option shall not have any of the rights of a
shareholder of the Company with respect to the shares of Common Stock covered by
the Option until one or more certificates for such shares of Common Stock shall
have been issued to him upon the due exercise of the Option.
5. Non-transferability. The Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and the Option
may be exercised during the lifetime of the Optionee only by him, more
particularly (but without limiting the generality of the foregoing), the Option
may not be assigned, transferred (except as provided above), pledged or
hypothecated in any way, shall not be assignable by operation of law, and shall
not be subject to execution, attachment or similar process. Any attempted
assignment transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without effect.
6. Employment. The granting of the Option is in consideration
of the Optionee's continuing employment by the Company; however, nothing in this
Option shall confer upon the Optionee the right to continue in the employment of
the Company or affect the right of the Company to terminate the Optionee's
employment at any time in its sole discretion, with or without cause.
In the event that the Optionee shall cease to be so employed
for any reason other than death, retirement with the consent of the Company or
disability (as determined by the committee appointed by the Board of Directors
of the Company to administer the Plan (the "Committee") in its sole discretion,
the Option shall terminate on the date of termination of employment or on a date
not more than three (3) months after such date of termination of
3
<PAGE>
CUSIP No. 024611-10-5 13D Page 25 of 36 Pages
- --------------------------------------------------------------------------------
employment (as determined by the Committee in its sole discretion); provided,
however, that in the event of exercise after termination of employment, the
optionee shall not be entitled to purchase any shares of Common Stock in excess
of the number of shares which he would have been permitted to purchase upon
exercise of the Option on his date of termination. If the Optionee is disabled
(as determined by the Committee in its sole discretion) or retires with the
consent of the Company, the Option shall terminate one (1) year after the date
of disability and not later than three (3) months after the date of retirement
(as determined by the Committee in its sole discretion).
7. Death Of Optionee. If the Optionee shall die while in the
employ of the Company or a subsidiary of the Company, his estate, personal
representative, or beneficiary shall have the right, subject to the provisions
of Section 3 hereof, to exercise the Option (to the extent that the Optionee
would have been entitled to do so at the date of his death) at any time within
one (1) year from the date of his death.
8. Termination of Option. In the event of the institution of
any legal proceedings directed to the validity of the Plan pursuant to which the
Option is granted, or to any option granted under it, the Company may, in its
sole discretion, and without incurring any liability therefor to the Optionee or
any other person, terminate the Option.
9. Stock Splits, Mergers, Etc. In case of any stock split,
stock dividend or similar transaction which increases or decreases the number of
outstanding shares of Common Stock, appropriate adjustment shall be made by the
Board of Directors, whose determination shall be final, to the number of shares
of Common Stock which may be purchased under the Plan and the number and option
exercise price per share which may be purchased under any outstanding
4
<PAGE>
CUSIP No. 024611-10-5 13D Page 26 of 36 Pages
- --------------------------------------------------------------------------------
options. In the case of a merger, sale of assets or similar transaction which
results in a replacement of the Company's shares of Common Stock with stock of
another corporation, the Company will make a reasonable effort, but shall not be
required, to replace any outstanding options with comparable options to purchase
the stock of such other corporation, or will provide for immediate maturity of
all outstanding options, with all options not being exercised within the time
period specified by the Board of Directors being terminated.
10. Method of Exercising Option. Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by written
notice to the Company as provided in Section 11. Such notice shall state the
election to exercise the Option and the number of shares of Common Stock in
respect of which it is being exercised. It shall be signed by the person or
persons so exercising the Option and shall be accompanied by payment of the full
purchase price of such shares in cash, by check or by the delivery of
certificates representing shares of Common Stock with fully executed stock
powers, and the Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate or certificates representing
such shares Common Stock as soon as practicable after the notice and payment
have been received.
In the event the Option shall be exercised by any person or
persons other than the Optionee, pursuant to Section 7 hereof, such notice shall
be accompanied by appropriate proof of the right of such person or persons to
exercise the Option. All shares of Common Stock that shall be purchased upon the
exercise of the Option as provided herein shall be fully paid and
non-assessable.
11. General. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of Common Stock as
will be sufficient to satisfy
5
<PAGE>
CUSIP No. 024611-10-5 13D Page 27 of 36 Pages
- --------------------------------------------------------------------------------
the requirements of this Agreement, shall pay all taxes with respect to the
issue of shares of Common Stock pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith, and will, from time
to time, use its best efforts to comply with all laws and regulations which, in
the opinion of counsel for the Company, shall be applicable thereto.
12. Representation Of Optionee. The Optionee represents that
he and any related persons or entities, within Section 425(d) of the Code, do
not own as much as ten percent (10%) of the total combined voting power or value
of all capital stock of the Company, or any subsidiary of the Company, and in
accepting the Option herein granted to him, agrees to the terms of the Option on
the date hereof.
13. Notices. Each notice relating to this Option Agreement
shall be in writing and delivered in person or by first class mail, postage
prepaid, to the proper address. Each notice shall be deemed to have been given
on the date it is received. Each notice to the Company shall be addressed to it
at its principal office (Attention: Treasurer). Each notice to the Optionee or
other person or persons then entitled to exercise the Option shall be addressed
to the Optionee or such other person or persons at the Optionee's address set
forth in the heading of this Agreement. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that effect.
14. Incorporation of Plan. Notwithstanding the terms and
conditions herein, any Option granted pursuant to this Agreement shall be
subject to and governed by all the terms and conditions of the Plan. A copy of
the Plan has been delivered to the Optionee and is hereby
6
<PAGE>
CUSIP No. 024611-10-5 13D Page 28 of 36 Pages
- --------------------------------------------------------------------------------
incorporated by reference. In the event of any discrepancy or inconsistency
between this Agreement and the Plan, the terms of the Plan shall govern.
15. Enforceability. This Agreement shall be binding upon the
Optionee, his estate, his personal representatives and beneficiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed by one of its officers thereunto duly authorized, and the
Optionee has hereunto set his hand, all as of the day and year first above
written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Timothy J. Roach
--------------------------------
Timothy J. Roach
Title: Secretary-Treasurer
Optionee:
/s/ Alfred J. Roach
-----------------------------------
Alfred J. Roach
7
CUSIP No. 024611-10-5 13D Page 29 of 36 Pages
- --------------------------------------------------------------------------------
Exhibit 4
---------
AMERICAN BIOGENETIC SCIENCES, INC.
---------------------------------
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
OPTION AGREEMENT made this 1st day of June, 1995, between AMERICAN
BIOGENETIC SCIENCES, INC. ("Company"), and Alfred J. Roach, an employee of the
Company ("Optionee"), residing at 1365 Akron Street, Copiague, New York 11726.
W I T N E S S E T H :
WHEREAS, the Company desires, by affording the Optionee an
opportunity to purchase its common stock, $.001 par value per share (the "Common
Stock"), as hereinafter provided, to carry out the purposes of the Company's
Stock Option Plan (the "Plan"):
NOW, THEREFORE, in consideration of the premises and of the
mutual promises hereinafter contained, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee
an option ("Option") to purchase all or any part of an aggregate of 135,000
shares of Common Stock (such number being subject to adjustment as provided in
Section 9 hereof) on the terms and conditions hereinafter set forth. The Option
is intended to be an "incentive stock option" as defined in Section 422A of the
Internal Revenue Code of 1986 or any corresponding provisions of succeeding law
(the "Code").
<PAGE>
CUSIP No. 024611-10-5 13D Page 30 of 36 Pages
- --------------------------------------------------------------------------------
2. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option shall be $1.925 per share of Common Stock, which is
not less than one hundred and ten percent (l10%) of the fair market value of a
share of Common Stock on the date hereof. Payment shall be made in cash, check
or in shares of Common Stock in the manner prescribed in Section 10 hereof.
3. Term of Option. The term of the Option shall be for a
period of five (5) years from the date hereof, subject to earlier termination as
provided in Sections 6, 7 and 8 hereof.
4. Exercisability. The Option may be exercised in whole or in
part at any time and from time to time prior to the termination of the Option,
as to all or any of the shares of Common Stock purchasable hereunder; provided,
however, that no shares of Common Stock covered by the Option may be purchased
within the first six months' period after the date hereof, and that in each
subsequent six months' period during the term of the option, the holder of the
Option may purchase a number of shares of Common Stock equal to one quarter of
the total number of shares subject to the option until one hundred percent of
the Option shall be exercisable two (2) years after the date thereof. If fewer
than the number of available shares are purchased under the Option, the holder
may purchase any such unpurchased shares during the term of the Option. In no
event shall the Option be exercised after the expiration of five (5) years from
the date hereof.
2
<PAGE>
CUSIP No. 024611-10-5 13D Page 31 of 36 Pages
- --------------------------------------------------------------------------------
Except as provided in Sections 6, 7 and 10 hereof, the Option
may not be exercised at any time unless the Optionee shall then be and shall
have been, at all times from the date of grant of the Option, an employee of the
Company or of a subsidiary of the Company. The term "employee" shall include
officers and directors who are employees of the Company. The holder of the
Option shall not have any of the rights of a shareholder of the Company with
respect to the shares of Common Stock covered by the Option until one or more
certificates for such shares of Common Stock shall have been issued to him upon
the due exercise of the Option.
5. Non-transferability. The Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and the Option
may be exercised during the lifetime of the Optionee only by him, more
particularly (but without limiting the generality of the foregoing), the Option
may not be assigned, transferred (except as provided above), pledged or
hypothecated in any way, shall not be assignable by operation of law, and shall
not be subject to execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without effect.
3
<PAGE>
CUSIP No. 024611-10-5 13D Page 32 of 36 Pages
- --------------------------------------------------------------------------------
6. Employment. The granting of the Option is in consideration
of the Optionee's continuing employment by the Company; however, nothing in this
Option shall confer upon the Optionee the right to continue in the employment of
the Company or affect the right of the Company to terminate the Optionee's
employment at any time in its sole discretion, with or without cause.
In the event that the Optionee shall cease to be so employed
for any reason other than death, retirement with the consent of the Company or
disability (as determined by the committee appointed by the Board of Directors
of the Company to administer the Plan (the "Committee") in its sole discretion),
the Option shall terminate on the date of termination of employment or on a date
not more than three (3) months after such date of termination of employment (as
determined by the Committee it its sole discretion); provided, however, that in
the event of exercise after termination of employment, the Optionee shall not be
entitled to purchase any shares of Common Stock in excess of the number of
shares which he would have been permitted to purchase upon exercise of the
Option on his date of termination. If the Optionee is disabled (as determined by
the Committee in its sole discretion) or retires with the consent of the
Company, the Option shall terminate one (1) year after the date of disability
and not later than three (3) months after the date of retirement (as determined
by the Committee in its sole discretion).
4
<PAGE>
CUSIP No. 024611-10-5 13D Page 33 of 36 Pages
- --------------------------------------------------------------------------------
7. Death of Optionee. If the Optionee shall die while in the
employ of the Company or a subsidiary of the Company, his estate, personal
representative, or beneficiary shall have the right, subject to the provisions
of Section 3 hereof, to exercise the Option (to the extent that the Optionee
would have been entitled to do so at the date of his death) at any time within
one (1) year from the date of his death.
8. Termination of Option. In the event of the institution of
any legal proceedings directed to the validity of the Plan pursuant to which the
Option is granted, or to any option granted under it, the Company may, in its
sole discretion, and without incurring any liability therefor to the Optionee or
any other person, terminate the Option.
9. Stock Splits, Mergers, Etc. In case of any stock split,
stock dividend or similar transaction which increases or decreases the number of
outstanding shares of Common Stock, appropriate adjustment shall be made by the
Board of Directors, whose determination shall be final, to the number of shares
of Common Stock which may be purchased under the Plan and the number and option
exercise price per share which may be purchased under any outstanding options.
In the case of a merger, sale of assets or similar transaction which results in
a replacement of the Company's shares of Common Stock with stock of another
corporation, the Company will make a reasonable effort, but shall not be
required, to replace any outstanding options with comparable options to purchase
the stock of such other
5
<PAGE>
CUSIP No. 024611-10-5 13D Page 34 of 36 Pages
- --------------------------------------------------------------------------------
corporation, or will provide for immediate maturity of all outstanding options,
with all options not being exercised within the time period specified by the
Board of Directors being terminated.
10. Method of Exercising Option. Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by written
notice to the Company as provided in Section 11. Such notice shall state the
election to exercise the Option and the number of shares of Common Stock in
respect of which it is being exercised. It shall be signed by the person or
persons so exercising the Option and shall be accompanied by payment of the full
purchase price of such shares in cash, by check or by the delivery of
certificates representing shares of Common Stock with fully executed stock
powers, and the Company shall issue, in the name of the person or persons
exercising the Option, and deliver a certificate or certificates representing
such shares of Common Stock as soon as practicable after the notice and payment
have been received.
In the event the Option shall be exercised by any person or
persons other than the Optionee, pursuant to Section 7 hereof, such notice shall
be accompanied by appropriate proof of the right of such person or persons to
exercise the Option. All shares of Common Stock that shall be purchased upon the
exercise of the Option as provided herein shall be fully paid and
non-assessable.
6
<PAGE>
CUSIP No. 024611-10-5 13D Page 35 of 36 Pages
- --------------------------------------------------------------------------------
11. General. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of Common Stock as
will be sufficient to satisfy the requirements of this Agreement, shall pay all
taxes with respect to the issue of shares of Common Stock pursuant hereto and
all other fees and expenses necessarily incurred by the Company in connection
therewith, and will, from time to time, use its best efforts to comply with all
laws and regulations which, in the opinion of counsel for the Company, shall be
applicable thereto.
12. Representation of Optionee. The Optionee represents that
he and any related persons or entities, within Section 425(d) of the Code, do
not own as much as ten percent (l0%) of the total combined voting power or value
of all capital stock of the Company, or any subsidiary of the Company, and in
accepting the option herein granted to him, agrees to the terms of the Option on
the date hereof.
13. Notices. Each notice relating to this Option Agreement
shall be in writing and delivered in person or by first class mail, postage
prepaid, to the proper address. Each notice shall be deemed to have been given
on the date it is received. Each notice to the Company shall be addressed to it
at its principal office (Attention: Treasurer). Each notice to the Optionee or
other person or persons then entitled to exercise the Option shall be addressed
to the Optionee or such other person or persons at the Optionee's address set
forth in the heading of this Agreement. Anyone to whom a notice may be given
under this
7
<PAGE>
CUSIP No. 024611-10-5 13D Page 36 of 36 Pages
- --------------------------------------------------------------------------------
Agreement may designate a new address by notice to that effect.
14. Incorporation of Plan. Notwithstanding the terms and
conditions herein, any Option granted pursuant to this Agreement shall be
subject to and governed by all the terms and conditions of the Plan. A copy of
the Plan has been delivered to the Optionee and is hereby incorporated by
reference. In the event of any discrepancy or inconsistency between this
Agreement and the Plan, the terms of the Plan shall govern.
15. Enforceability. This Agreement shall be binding upon the
Optionee, his estate, his personal representatives and beneficiaries.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed by one of its officers thereunto duly authorized, and the
Optionee has hereunto set his hand, all as of the day and year first above
written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Timothy J. Roach
------------------------------------
Timothy J. Roach
Title: Secretary-Treasurer
Optionee:
/s/ Alfred J. Roach
-----------------------------------
Alfred J. Roach
8
