SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
American Biogenetic Sciences, Inc.
--------------------------------------------------
(Name of Issuer)
Class A Common Stock, par value $.001 per share
(Title of Class of Securities)
024611 10 5
-----------
(CUSIP Number)
Leonard W. Suroff, Esq.
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
516-789-2600
------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 5, 1999
-------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ]
Page 1 of 18
<PAGE>
- --------------------------------------------------------------------------------
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Alfred J. Roach
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds (See Instructions) PF
- --------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e) [ ]
- --------------------------------------------------------------------------------
6. Citizenship or Place of Organization United States
- --------------------------------------------------------------------------------
Number of 7. Sole Voting Power 8,832,250
Shares Bene- --------------------------------------------------------------
ficially Owned 8. Shared Voting Power -0-
By Each --------------------------------------------------------------
Reporting 9. Sole Dispositive Power 8,832,250
Person With --------------------------------------------------------------
10. Shared Dispositive Power -0-
- --------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
8,832,250 shares (includes 3,000,000 shares issuable upon conversion of
Class B Common Stock and 1,310,000 issuable upon exercise of options)
- --------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
- --------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
20.1% (50.5% of voting power of all outstanding securities)
- --------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions)
IN
- --------------------------------------------------------------------------------
Page 2 of 18
<PAGE>
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 207
Inlet Drive, Lindenhurst, New York 11757.
(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 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
Page 3 of 18
<PAGE>
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, as a result of the market price of the Company's
Common Stock not exceeding $1.00 per share for ten consecutive trading days, the
Company's Class A Common Stock has delisted from the Nasdaq Stock Market
inter-dealer quotation system and is presently traded on Nasdaq's OTC Bulletin
Board; the Company has appealed Nasdaq's determination); (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.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The following information is as at January 31, 2000:
(a)(i) Amount Beneficially Owned: 8,832,250
Consists of (i) 4,522,250 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) 1,310,000 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 January 31, 2000. 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: 20.1% of Class A Common Stock and 50.5% 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 39,708,907 shares of Class A Common Stock
outstanding on January 31, 2000 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
Page 4 of 18
<PAGE>
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 - 8,832,250
(ii) shared power to vote or to direct the vote - 0
(iii)sole power to dispose or to direct the disposition of -
8,832,250
(iv) shared power to dispose or to direct the disposition of
- 0
(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>
Number of Shares
Date of ---------------- 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
01/12/99 Class A 20,000 $1.02 Open Market
01/14/99 Class A 50,000 $1.02 Open Market
01/20/99 Class A 30,000 $1.02 Open Market
03/05/99 Class A 440,000 $1.125 From Company
11/24/99 Class A 50,000 N/A Gift
12/16/99 Class A 2,000 N/A Gift
01/06/00 Class A 1,000 N/A Gift
</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
Page 5 of 18
<PAGE>
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
<TABLE>
<CAPTION>
<S> <C>
Exhibit 1 - Incentive Stock Option Agreement dated August 19, 1991 between the
Company and the Reporting Person.
Exhibit 2 - Incentive Stock Option Agreement dated October 25, 1991 between the
Company and the Reporting Person. (1)
Exhibit 3 - Incentive Stock Option Agreement dated October 19, 1992 between the
Company and the Reporting Person. (1)
Exhibit 4 - Incentive Stock Option Agreement dated June 1, 1995 between the
Company and the Reporting Person. (1)
Exhibit 5 - Incentive Stock Option Agreement dated October 27, 1998 between the
Company and the Reporting Person.(2)
Exhibit 6 - Incentive Stock Option Agreement dated May 25, 1999 between the
Company and the Reporting Person. (2)
Exhibit 7 - Incentive Stock Option Agreement dated October 20, 1999 between the
Company and the Reporting Person. (2)
</TABLE>
-------------------
(1) Filed with the initial filing of this Statement.
(2) Filed with this Amendment No. 1.
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: January 31, 2000
/s/ Alfred J. Roach
-------------------
Alfred J. Roach
Page 6 of 18
EXHIBIT 5
---------
AMERICAN BIOGENETIC SCIENCES, INC.
1996 STOCK OPTION PLAN
INCENTIVE STOCK OPTION CONTRACT
THIS INCENTIVE STOCK OPTION CONTRACT entered into as of
October 27, 1998 between AMERICAN BIOGENETIC SCIENCES, INC., a Delaware
corporation (the "Company"), and Alfred J. Roach (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
1 The Company, in accordance with the allotment made by the
Compensation Committee of the Company's Board of Directors (the "Committee") and
subject to the terms and conditions of the 1996 Stock Option Plan of the Company
(the "Plan"), grants to the Optionee an option to purchase an aggregate of
100,000 shares of the Class A Common Stock, $.001 par value per share, of the
Company ("Common Stock") at an exercise price of $0.275 per share, being at
least equal to 110% of the fair market value of such shares of Common Stock on
the date hereof. This option is intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), although the Company makes no representation or warranty
as to such qualification.
2 The term of this option shall be five years from the date
hereof, subject to earlier termination as provided in the Plan. However, this
option shall not be exercisable until April 27, 1999, at which time it shall
become exercisable as to 25,000 shares of Common Stock, and as to an additional
25,000 shares of Common Stock every six (6) months thereafter. The right to
purchase shares of Common Stock under this option shall be cumulative, so that
if the full number of shares purchasable in a period shall not be purchased, the
balance may be purchased at any time or from time to time thereafter, but not
after the expiration of the option. Notwithstanding the foregoing, in no event
may a fraction of a share of Common Stock be purchased under this option.
3 This option shall be exercised by giving written notice to the
Company at its then New York office, presently 1375 Akron Street, Copiague, New
York 11726, Attention: Vice President, Finance, stating that the Optionee is
exercising the option hereunder, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor (a)
in cash or by certified check, (b) with previously acquired shares of Common
Stock which have been held by the Optionee for at least six months, or (c) a
combination of the foregoing.
Page 7 of 18
<PAGE>
4 The Company and/or any Subsidiary may withhold cash and/or
shares of Common Stock to be issued to the Optionee in the amount which the
Company determines is necessary to satisfy its obligation to withhold taxes or
other amounts incurred by reason of the grant or exercise of this option or the
disposition of the underlying shares of Common Stock. Alternatively, the Company
may require the Optionee to pay the Company such amount in cash promptly upon
demand.
5 In the event of any disposition of the shares of Common Stock
acquired pursuant to the exercise of this option within two years from the date
hereof or one year from the date of transfer of such shares to him, the Optionee
shall notify the Company thereof in writing within 30 days after such
disposition. In addition, the Optionee shall provide the Company on demand with
such information as the Company shall reasonably request in connection with
determining the amount and character of the Optionee's income, the applicable
deduction and the obligation to withhold taxes or other amount incurred by
reason of such disqualifying disposition, including the amount thereof. The
Optionee shall pay the Company and/or the Subsidiary, as the case may be, in
cash on demand the amount, if any, which the Company determines is necessary to
satisfy such withholding obligation.
6 Notwithstanding the foregoing, this option shall not be
exercisable by the Optionee unless (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act") with respect to the
shares of Common Stock to be received upon the exercise of this option shall be
effective and current at the time of exercise or (b) there is an exemption from
registration under the Securities Act for the issuance of the shares of Common
Stock upon such exercise. The Optionee hereby represents and warrants to the
Company that, unless such a Registration Statement is effective and current at
the time of exercise of this option, the shares of Common Stock to be issued
upon the exercise of this option will be acquired by the Optionee for his own
account, for investment only and not with a view to the resale or distribution
thereof. In any event, the Optionee will notify the Company of any proposed
resale of the shares of Common Stock issued to him upon exercise of this option.
If (i) the Optionee is an "affiliate" of the Company within the meaning of the
Securities Act at the time of any such resale or (ii) at the time of exercise of
this option the shares issued were not subject to a current and effective
Registration Statement under the Securities Act covering their issuance, then
any subsequent resale or distribution of shares of Common Stock by the Optionee
will be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the Optionee's sale of shares
of Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the Optionee
shall, prior to any offer of sale or sale of such shares of Common Stock,
provide the Company (unless waived by the Company) with a favorable written
opinion of counsel, in form and substance satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representations and warranties shall also be deemed to be made by the Optionee
upon each exercise of this option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this option under the
Securities Act.
7 Notwithstanding anything herein to the contrary, if at any time
the Committee shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on any
securities exchange or under any applicable law, or
Page 8 of 18
<PAGE>
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition to, or in connection with, the granting of an option or
the issue of shares of Common Stock hereunder, this option may not be exercised
in whole or in part unless such listing, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
8 The Company may affix appropriate legends upon the certificates
for shares of Common Stock issued upon exercise of this option and may issue
such "stop transfer" instructions to its transfer agent in respect of such
shares as it determines, in its discretion, to be necessary or appropriate to
(a) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act, (b) implement the provisions of the Plan or
this Contract or any other agreement between the Company and the Optionee with
respect to such shares of Common Stock, or (c) permit the Company to determine
the occurrence of a "disqualifying disposition," as described in Section 421(b)
of the Code, of the shares of Common Stock transferred upon the exercise of this
option.
9 Nothing in the Plan or herein shall confer upon the Optionee any
right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate such employment at any time for any reason
whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
10 The Company and the Optionee agree that they will both be
subject to and bound by all of the terms and conditions of the Plan, a copy of
which is attached hereto and made a part hereof. Any capitalized term not
defined herein shall have the meaning ascribed to it in the Plan. In the event
of a conflict between the terms of this Contract and the terms of the Plan, the
terms of the Plan shall govern.
11 The Optionee represents and agrees that he will comply with all
applicable laws relating to the Plan and the grant and exercise of this option
and the disposition of the shares of Common Stock acquired upon exercise of the
option, including without limitation, federal and state securities and "blue
sky" laws.
12 This option is not transferable by the Optionee otherwise than
by will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
13 This Contract shall be binding upon and inure to the benefit of
any successor or assign of the Company and to any heir, distributee, executor,
administrator or legal representative entitled to the Optionee's rights
hereunder.
14 This Contract shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules thereof.
Page 9 of 18
<PAGE>
15 The invalidity or illegality of any provision herein shall not
affect the validity of any other provision.
16 The Optionee agrees that the Company may amend the Plan and the
options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract
as of the day and year first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By:/s/ Timoth J. Roach
-------------------------------------
Timothy J. Roach, Secretary-Treasurer
/s/ Alfred J. Roach
-------------------------------------
Alfred J. Roach, Optionee
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
Page 10 of 18
EXHIBIT 6
---------
AMERICAN BIOGENETIC SCIENCES, INC.
1996 STOCK OPTION PLAN
INCENTIVE STOCK OPTION CONTRACT
-------------------------------
THIS INCENTIVE STOCK OPTION CONTRACT entered into as of May
25, 1999 between AMERICAN BIOGENETIC SCIENCES, INC., a Delaware corporation (the
"Company"), and Alfred J. Roach (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
1. The Company, in accordance with the allotment made by the
Compensation Committee of the Company's Board of Directors (the "Committee") and
subject to the terms and conditions of the 1996 Stock Option Plan of the Company
(the "Plan"), grants to the Optionee an option to purchase an aggregate of
200,000 shares of the Class A Common Stock, $.001 par value per share, of the
Company ("Common Stock") at an exercise price of $1.10 per share, being at least
equal to 110% of the fair market value of such shares of Common Stock on the
date hereof. This option is intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), although the Company makes no representation or warranty
as to such qualification.
2. The term of this option shall be five years from the date
hereof, subject to earlier termination as provided in the Plan. However, this
option shall not be exercisable until November 25, 1999, at which time it shall
become exercisable as to 100,000 shares of Common Stock, and as to an additional
100,000 shares of Common Stock six (6) months thereafter. The right to purchase
shares of Common Stock under this option shall be cumulative, so that if the
full number of shares purchasable in a period shall not be purchased, the
balance may be purchased at any time or from time to time thereafter, but not
after the expiration of the option. Notwithstanding the foregoing, in no event
may a fraction of a share of Common Stock be purchased under this option.
3. This option shall be exercised by giving written notice to the
Company at its then New York office, presently 1375 Akron Street, Copiague, New
York 11726, Attention: Vice President, Finance, stating that the Optionee is
exercising the option hereunder, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor (a)
in cash or by certified check, (b) with previously acquired shares of Common
Stock which have been held by the Optionee for at least six months, or (c) a
combination of the foregoing.
4. The Company and/or any Subsidiary may withhold cash and/or
shares of Common Stock to be issued to the Optionee in the amount which the
Company determines is
<PAGE>
necessary to satisfy its obligation to withhold taxes or other amounts incurred
by reason of the grant or exercise of this option or the disposition of the
underlying shares of Common Stock. Alternatively, the Company may require the
Optionee to pay the Company such amount in cash promptly upon demand.
5. In the event of any disposition of the shares of Common Stock
acquired pursuant to the exercise of this option within two years from the date
hereof or one year from the date of transfer of such shares to him, the Optionee
shall notify the Company thereof in writing within 30 days after such
disposition. In addition, the Optionee shall provide the Company on demand with
such information as the Company shall reasonably request in connection with
determining the amount and character of the Optionee's income, the applicable
deduction and the obligation to withhold taxes or other amount incurred by
reason of such disqualifying disposition, including the amount thereof. The
Optionee shall pay the Company and/or the Subsidiary, as the case may be, in
cash on demand the amount, if any, which the Company determines is necessary to
satisfy such withholding obligation.
6. Notwithstanding the foregoing, this option shall not be
exercisable by the Optionee unless (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act") with respect to the
shares of Common Stock to be received upon the exercise of this option shall be
effective and current at the time of exercise or (b) there is an exemption from
registration under the Securities Act for the issuance of the shares of Common
Stock upon such exercise. The Optionee hereby represents and warrants to the
Company that, unless such a Registration Statement is effective and current at
the time of exercise of this option, the shares of Common Stock to be issued
upon the exercise of this option will be acquired by the Optionee for his own
account, for investment only and not with a view to the resale or distribution
thereof. In any event, the Optionee will notify the Company of any proposed
resale of the shares of Common Stock issued to him upon exercise of this option.
If (i) the Optionee is an "affiliate" of the Company within the meaning of the
Securities Act at the time of any such resale or (ii) at the time of exercise of
this option the shares issued were not subject to a current and effective
Registration Statement under the Securities Act covering their issuance, then
any subsequent resale or distribution of shares of Common Stock by the Optionee
will be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the Optionee's sale of shares
of Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the Optionee
shall, prior to any offer of sale or sale of such shares of Common Stock,
provide the Company (unless waived by the Company) with a favorable written
opinion of counsel, in form and substance satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representations and warranties shall also be deemed to be made by the Optionee
upon each exercise of this option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this option under the
Securities Act.
7. Notwithstanding anything herein to the contrary, if at any time
the Committee shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on any
securities exchange or under any applicable law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a condition to,
or in connection with, the granting of an option or the issue of shares of
Common
Page 12 of 18
<PAGE>
Stock hereunder, this option may not be exercised in whole or in part unless
such listing, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
8. The Company may affix appropriate legends upon the certificates
for shares of Common Stock issued upon exercise of this option and may issue
such "stop transfer" instructions to its transfer agent in respect of such
shares as it determines, in its discretion, to be necessary or appropriate to
(a) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act, (b) implement the provisions of the Plan or
this Contract or any other agreement between the Company and the Optionee with
respect to such shares of Common Stock, or (c) permit the Company to determine
the occurrence of a "disqualifying disposition," as described in Section 421(b)
of the Code, of the shares of Common Stock transferred upon the exercise of this
option.
9. Nothing in the Plan or herein shall confer upon the Optionee
any right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate such employment at any time for any reason
whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
10. The Company and the Optionee agree that they will both be
subject to and bound by all of the terms and conditions of the Plan, a copy of
which is attached hereto and made a part hereof. Any capitalized term not
defined herein shall have the meaning ascribed to it in the Plan. In the event
of a conflict between the terms of this Contract and the terms of the Plan, the
terms of the Plan shall govern.
11. The Optionee represents and agrees that he will comply with
all applicable laws relating to the Plan and the grant and exercise of this
option and the disposition of the shares of Common Stock acquired upon exercise
of the option, including without limitation, federal and state securities and
"blue sky" laws.
12. This option is not transferable by the Optionee otherwise than
by will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
13. This Contract shall be binding upon and inure to the benefit
of any successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled to the Optionee's
rights hereunder.
14. This Contract shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules thereof.
15. The invalidity or illegality of any provision herein shall not
affect the validity of any other provision.
16. The Optionee agrees that the Company may amend the Plan and
the
Page 13 of 18
<PAGE>
options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the day and year first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By:/s/ Timothy J. Roach
---------------------------------
Timothy J. Roach, Secretary-Treasurer
/s/ Alfred J. Roach
---------------------------------
Alfred J. Roach, Optionee
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
Page 14 of 18
EXHIBIT 7
---------
AMERICAN BIOGENETIC SCIENCES, INC.
1996 STOCK OPTION PLAN
INCENTIVE STOCK OPTION CONTRACT
THIS INCENTIVE STOCK OPTION CONTRACT entered into as of
October 20, 1999 between AMERICAN BIOGENETIC SCIENCES, INC., a Delaware
corporation (the "Company"), and Alfred J. Roach (the "Optionee"), residing at
207 Inlet Drive, Lindenhurst, New York 11757.
W I T N E S S E T H:
- - - - - - - - - -
1. The Company, in accordance with the allotment made by the
Compensation Committee of the Company's Board of Directors (the "Committee") and
subject to the terms and conditions of the 1996 Stock Option Plan of the Company
(the "Plan"), grants to the Optionee an option to purchase an aggregate of
100,000 shares of the Class A Common Stock, $.001 par value per share, of the
Company ("Common Stock") at an exercise price of $0.308 per share, being at
least equal to 110% of the fair market value of such shares of Common Stock on
the date hereof. This option is intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), although the Company makes no representation or warranty
as to such qualification.
2. The term of this option shall be five years from the date
hereof, subject to earlier termination as provided in the Plan. However, this
option shall not be exercisable until April 20, 2000, at which time it shall
become fully exercisable. The right to purchase shares of Common Stock under
this option shall be cumulative, so that if the full number of shares
purchasable in a period shall not be purchased, the balance may be purchased at
any time or from time to time thereafter, but not after the expiration of the
option. Notwithstanding the foregoing, in no event may a fraction of a share of
Common Stock be purchased under this option.
3. This option shall be exercised by giving written notice to the
Company at its then New York office, presently 1375 Akron Street, Copiague, New
York 11726, Attention: Vice President, Finance, stating that the Optionee is
exercising the option hereunder, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor (a)
in cash or by certified check, (b) with previously acquired shares of Common
Stock which have been held by the Optionee for at least six months, or (c) a
combination of the foregoing.
4. The Company and/or any Subsidiary may withhold cash and/or
shares of Common Stock to be issued to the Optionee in the amount which the
Company determines is
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necessary to satisfy its obligation to withhold taxes or other amounts incurred
by reason of the grant or exercise of this option or the disposition of the
underlying shares of Common Stock. Alternatively, the Company may require the
Optionee to pay the Company such amount in cash promptly upon demand.
5. In the event of any disposition of the shares of Common Stock
acquired pursuant to the exercise of this option within two years from the date
hereof or one year from the date of transfer of such shares to him, the Optionee
shall notify the Company thereof in writing within 30 days after such
disposition. In addition, the Optionee shall provide the Company on demand with
such information as the Company shall reasonably request in connection with
determining the amount and character of the Optionee's income, the applicable
deduction and the obligation to withhold taxes or other amount incurred by
reason of such disqualifying disposition, including the amount thereof. The
Optionee shall pay the Company and/or the Subsidiary, as the case may be, in
cash on demand the amount, if any, which the Company determines is necessary to
satisfy such withholding obligation.
6. Notwithstanding the foregoing, this option shall not be
exercisable by the Optionee unless (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act") with respect to the
shares of Common Stock to be received upon the exercise of this option shall be
effective and current at the time of exercise or (b) there is an exemption from
registration under the Securities Act for the issuance of the shares of Common
Stock upon such exercise. The Optionee hereby represents and warrants to the
Company that, unless such a Registration Statement is effective and current at
the time of exercise of this option, the shares of Common Stock to be issued
upon the exercise of this option will be acquired by the Optionee for his own
account, for investment only and not with a view to the resale or distribution
thereof. In any event, the Optionee will notify the Company of any proposed
resale of the shares of Common Stock issued to him upon exercise of this option.
If (i) the Optionee is an "affiliate" of the Company within the meaning of the
Securities Act at the time of any such resale or (ii) at the time of exercise of
this option the shares issued were not subject to a current and effective
Registration Statement under the Securities Act covering their issuance, then
any subsequent resale or distribution of shares of Common Stock by the Optionee
will be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the Optionee's sale of shares
of Common Stock being sold, or (y) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption, the Optionee
shall, prior to any offer of sale or sale of such shares of Common Stock,
provide the Company (unless waived by the Company) with a favorable written
opinion of counsel, in form and substance satisfactory to the Company, as to the
applicability of such exemption to the proposed sale or distribution. Such
representations and warranties shall also be deemed to be made by the Optionee
upon each exercise of this option. Nothing herein shall be construed as
requiring the Company to register the shares subject to this option under the
Securities Act.
7. Notwithstanding anything herein to the contrary, if at any time
the Committee shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on any
securities exchange or under any applicable law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a condition to,
or in connection with, the granting of an option or the issue of shares of
Common
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<PAGE>
Stock hereunder, this option may not be exercised in whole or in part unless
such listing, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
8. The Company may affix appropriate legends upon the certificates
for shares of Common Stock issued upon exercise of this option and may issue
such "stop transfer" instructions to its transfer agent in respect of such
shares as it determines, in its discretion, to be necessary or appropriate to
(a) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act, (b) implement the provisions of the Plan or
this Contract or any other agreement between the Company and the Optionee with
respect to such shares of Common Stock, or (c) permit the Company to determine
the occurrence of a "disqualifying disposition," as described in Section 421(b)
of the Code, of the shares of Common Stock transferred upon the exercise of this
option.
9. Nothing in the Plan or herein shall confer upon the Optionee
any right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate such employment at any time for any reason
whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
10. The Company and the Optionee agree that they will both be
subject to and bound by all of the terms and conditions of the Plan, a copy of
which is attached hereto and made a part hereof. Any capitalized term not
defined herein shall have the meaning ascribed to it in the Plan. In the event
of a conflict between the terms of this Contract and the terms of the Plan, the
terms of the Plan shall govern.
11. The Optionee represents and agrees that he will comply with
all applicable laws relating to the Plan and the grant and exercise of this
option and the disposition of the shares of Common Stock acquired upon exercise
of the option, including without limitation, federal and state securities and
"blue sky" laws.
12. This option is not transferable by the Optionee otherwise than
by will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
13. This Contract shall be binding upon and inure to the benefit
of any successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled to the Optionee's
rights hereunder.
14. This Contract shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules thereof.
15. The invalidity or illegality of any provision herein shall not
affect the validity of any other provision.
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<PAGE>
16. The Optionee agrees that the Company may amend the Plan and
the options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract
as of the day and year first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By:/s/ Timothy J. Roach
------------------------------------
Timothy J. Roach, Secretary-Treasurer
/s/ Alfred J. Roach
------------------------------------
Alfred J. Roach, Optionee
207 Inlet Drive
Lindenhurst, New York 11757
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