<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
AMERICAN BIOGENETIC SCIENCES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 11-2655906
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1375 AKRON STREET, COPIAGUE, NY 11726
(631) 789-2600
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
--------------------------
DAVID H. MURPHREE, ESQ.
BROWN, RUDNICK, FREED & GESMER
ONE FINANCIAL CENTER
BOSTON, MA 02111
(617) 856-8200
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
--------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.[ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Amount Proposed Maximum Proposed Maximum
Title Of Each Class Of To Be Offering Price Per Aggregate Offering Amount Of
Securities To Be Registered Registered Share(1) Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $0.001 per share 400,000 shares (2) $1.59375 $637,500 $168.30
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended,
on the basis of the average of the bid and asked prices for the
registrant's Class A common stock on April 27, 2000, as reported on the
OTC Bulletin Board.
(2) Consists of 400,000 shares issuable upon exercise of outstanding
warrants. Also registered hereunder are such presently indeterminable
number of additional shares of Class A common stock as may be issued in
the event of a merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other similar change in Class A common
stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
===============================================================================
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 2, 2000
PROSPECTUS
400,000 SHARES
AMERICAN BIOGENETIC SCIENCES, INC.
CLASS A COMMON STOCK
-------------------
The stockholders of American Biogenetic Sciences, Inc. listed on page
7 of this prospectus are offering for sale 400,000 shares of our Class A common
stock under this prospectus.
The selling stockholders may offer their shares through public or
private transactions, at prevailing market prices or at privately negotiated
prices. We will not receive any proceeds from these sales. See "Plan of
Distribution."
OTC Bulletin Board Symbol
"MABA"
On April 28, 2000, the closing price of a share of our Class A common
stock on the OTC Bulletin Board was $1.75.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY CONSIDER
THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 2 OF
THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is ______, 2000
<PAGE> 3
TABLE OF CONTENTS
PROSPECTUS SUMMARY.......................................................1
RISK FACTORS.............................................................2
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS.........................6
WHERE YOU CAN FIND MORE INFORMATION ABOUT US.............................6
USE OF PROCEEDS..........................................................7
SELLING STOCKHOLDERS.....................................................7
PLAN OF DISTRIBUTION.....................................................8
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES...........................9
LEGAL MATTERS............................................................9
EXPERTS..................................................................9
ii
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PROSPECTUS SUMMARY
This summary highlights some information from this prospectus. It may
not contain all of the information important to you. To understand this offering
fully and get a better understanding of our business and operations, you should
read the entire prospectus carefully, including the risk factors and the
documents we have incorporated by reference in the section "Where You Can Find
More Information About Us."
Please note that references in this prospectus to "we", "our" or "us"
refer to American Biogenetic Sciences, Inc. and our subsidiary, Stellar Bio
Systems, Inc., not to the selling stockholders.
GENERAL INFORMATION ABOUT AMERICAN BIOGENETIC SCIENCES, INC.
We are engaged in researching, developing and marketing
cardiovascular and neurobiology products for commercial development. We
commenced selling our products during the last quarter of 1997.
Some of our products are designed to be used for IN VIVO, while
others are designed for IN VITRO, diagnostic procedures. IN VIVO diagnostic
procedures are those in which proteins or compounds are injected directly into
the body or bloodstream to assess abnormal reactions or conditions. During IN
VITRO procedures, blood, urine or other bodily fluid or tissue is extracted from
the body and the diagnostic tests are performed in a test tube or other
laboratory equipment.
Our main products are:
- Thrombus Precursor Protein test, referred to as the
TpP(TM) test. This is an IN VITRO diagnostic test used to
assess the risk of blood clots in the veins or arteries.
This test is also used to monitor the performance of
anti-clotting therapy or drugs used in the prevention of
blood clots.
- Functional Intact Fibrinogen test, referred to as the
FiF(R) test. This is an IN VITRO diagnostic test which
measures the levels of fibrinogen in blood. Fibrinogen is
a protein used in the blood-clotting process.
- Therapeutic neurocompounds. These are chemical compounds
that have been identified for the treatment of epilepsy,
migraine and mania and other diseases of the nervous
system.
- IN VITRO diagnostic products for infectious and
auto-immune diseases. These products can determine the
status of diseases such as human herpes and lupus.
- Mouse serum. This serum is a blood component that lacks
blood cells. IN VITRO diagnostic product manufacturers use
it in diagnostic tests for various purposes.
The company was incorporated in Delaware in September 1983. Our
principal executive offices are located at 1375 Akron Street, Copiague, New York
11726, and our telephone number at that address is (631) 789-2600.
As of April 20, 2000, we had 40,507,028 shares of Class A common
stock and 3,000,000 shares of Class B common stock outstanding. As of that date,
we also had 7,000 share of Series A preferred stock outstanding, which were
immediately convertible into 7,000,000 shares of our Class A common stock. This
prospectus relates to 400,000 shares of our Class A common stock that may be
issued upon exercise of certain outstanding warrants.
<PAGE> 5
RISK FACTORS
BEFORE YOU BUY SHARES OF OUR CLASS A COMMON STOCK, YOU SHOULD BE AWARE THAT
THERE ARE VARIOUS RISKS ASSOCIATED WITH THAT PURCHASE, INCLUDING THOSE DESCRIBED
BELOW. YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF
THE OTHER INFORMATION IN THIS PROSPECTUS AND THE DOCUMENTS WE HAVE INCORPORATED
BY REFERENCE IN THE SECTION "WHERE YOU CAN FIND MORE INFORMATION ABOUT US"
BEFORE YOU DECIDE TO PURCHASE SHARES OF OUR CLASS A COMMON STOCK.
RISKS ASSOCIATED WITH OUR LACK OF OPERATING HISTORY, HISTORY OF LOSSES AND
FUTURE NEED FOR CAPITAL
OUR LACK OF SIGNIFICANT REVENUES FROM PRODUCT SALES AFFECTS OUR ABILITY TO
GENERATE CASH
We are a development stage company. Although we have products at
various stages of development and have started to generate revenues, we may not
generate significant revenues from product sales to advance beyond the
development stage. Through December 31, 1999, we have received an aggregate of
$1,384,000 in licensing fees, royalties and fees under collaborative agreements.
Sales of the TpP and FiF tests and sales of Stellar's products since its
acquisition on April 23, 1998, totaled $2,708,000 through December 31, 1999.
WE HAVE A HISTORY OF LOSSES, AND IF WE DO NOT ACHIEVE PROFITABILITY, WE MAY NOT
BE ABLE TO CONTINUE OUR BUSINESS IN THE FUTURE
Our research, development, and general and administrative expenses
have resulted in significant losses in each year since our inception in 1983 and
are expected to continue to result in significant losses for the foreseeable
future. We have incurred the following losses since 1995:
Fiscal year ended:
- December 31, 1995..................... $5,607,000
- December 31, 1996..................... $7,700,000
- December 31, 1997..................... $7,147,000
- December 31, 1998..................... $7,548,000
- December 31, 1999......................$5,351,000
THE CYCLE FROM PRODUCT DEVELOPMENT TO COMMERCIALIZATION IS LENGTHY AND MAY
RESULT IN DELAYS IN THE COMMERCIALIZATION OF OUR PRODUCTS
Our existing products and our products under development are subject
to the risks inherent in the development of most biotechnology products. We are
unable to predict with any degree of certainty when, or if, we will complete the
research, development and testing of products currently under development and
future products or, if completed, whether we will obtain required regulatory
approvals. In addition, we may not be able to produce our products in commercial
quantities at reasonable costs, and our products may not be accepted by the
medical community.
WE COULD BE REQUIRED TO CUT BACK OR STOP OPERATIONS IF WE ARE UNABLE TO RAISE OR
OBTAIN NEEDED FINANCING
The research, development, commercialization, manufacturing and
marketing of our products will require financial resources that are
significantly in excess of those presently available to us. We probably will
need to seek additional financing, which may result in (1) borrowings that could
affect our results of operations and create an obligation to repay loans and (2)
the issuance of additional shares of our capital stock and/or rights to acquire
additional shares of our capital stock. Such additional issuances of capital
would result in a reduction of your percentage interest in our company. We may
not be able to arrange financing or other third party arrangements necessary to
fully develop and commercialize any of our products on acceptable terms or at
all.
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<PAGE> 6
RISKS ASSOCIATED WITH THE INDUSTRY IN WHICH WE OPERATE
IF WE DO NOT OBTAIN AND MAINTAIN NECESSARY U.S. OR FOREIGN CLEARANCES OR
MANUFACTURING AND MARKETING APPROVALS FOR OUR PRODUCTS, OUR BUSINESS AND
OPERATIONS COULD BE ADVERSELY AFFECTED
The investigation, manufacture, exportation, marketing and sale of
diagnostic and therapeutic products in or from the United States is subject to
regulation by the Food and Drug Administration, as well as by comparable foreign
and state agencies. Although we have obtained pre-market clearance for some of
our existing products, other products may not be approved by the FDA or other
applicable foreign regulatory agencies. Any FDA, foreign and state regulatory
approvals or clearances, once obtained, can be withdrawn or modified. Our
inability to obtain and maintain any necessary United States or foreign
clearances or manufacturing and marketing approvals for our products could have
a material adverse effect on our business, financial condition and results of
operations. In addition, our failure to comply with applicable government
requirements could result in, among other things, fines, injunctions, civil
penalties, recall or seizure of products, total or partial suspension of
production, failure of the government to grant pre-market clearance or
pre-market approval for those products, withdrawal of marketing or manufacturing
approvals, and criminal prosecutions.
WE MAY HAVE TO LOWER PRICES OR SPEND MORE MONEY TO EFFECTIVELY COMPETE AGAINST
COMPANIES WITH GREATER RESOURCES THAN OURS, WHICH COULD RESULT IN LOWER REVENUES
AND/OR PROFITS
The biotechnology industry is characterized by rapid technological
advances, evolving industry standards and technological obsolescence. While our
TpP is a unique diagnostic test that measures the beginning stages of active
clot formation, a feature which we believe has competitive advantages, this
product faces competition from other diagnostic tests that measure blood clots
during the breakdown stage after the blood clot has formed or that measure other
clotting factors that assess the risk of future clots. Our FiF test faces
competition from several other fibrinogen tests. Most of our competitors have
financial resources and research and development staffs and facilities
substantially greater than ours. We may not be able to compete successfully
given this competitive environment. For example, if our competitors offer lower
prices, we could be forced to lower our prices, which would result in reduced
margins and may affect our revenues if we do not compensate for the reduced
margins by increasing our sales volume. On the other hand, if we do not lower
our prices with our competitors, we could lose sales and market share. In either
case, if we are unable to compete against companies that can afford to cut
prices, we would not be able to generate sufficient revenues to grow the company
or reverse our history of losses.
In addition, our competitors and others may develop products that may
render our products obsolete or that have advantages over our products, such as
greater accuracy and precision or greater acceptance by the medical community.
Competing products may also get through the regulatory approval process sooner
than our products, enabling our competitors to market their products earlier
than we can. Usually, the first person to market a product has a significant
marketplace advantage. In addition, other products now in use, presently
undergoing the regulatory approval process or under development by others may
perform functions similar to those of our existing products or products that we
have under development.
A LACK OF ACCEPTANCE OF OUR PRODUCTS BY THE MEDICAL COMMUNITY COULD RESULT IN
LOWER REVENUES
The commercial success of our products is substantially dependent on
acceptance and use of our products by the medical community. Our products may
not be accepted by the medical community, or it may take a lengthy period of
time to gain the necessary acceptance. Widespread acceptance of our products as
useful additional tools for diagnosis and treatment will require educating the
medical community about the products' benefits, reliability and effectiveness.
In addition, the existence or development of competing products, which may be as
or more effective than our products for a specific use, may adversely affect
acceptance of our products.
WE MAY HAVE INCREASED EXPENSES IF OUR MARKETING EFFORTS ARE NOT SUCCESSFUL
Our strategy is to seek arrangements with large pharmaceutical
companies to market our products. In the event we are unable to enter into those
arrangements in the future, or if our arrangements are not successful, we may
seek to market our products through independent distributors or through sales
representatives. Independent
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distributors may require us to develop a marketing program to support sales. In
that event, we may incur additional expenses for the development of promotional
literature and aides, promotional activities, the hiring of sales
representatives and the conduct of additional studies in order to promote the
interests of distributors in our products. We may not be able to develop those
marketing arrangements on satisfactory terms, and we may not have the working
capital necessary to establish the sales support generally required by
independent distributors.
RISKS ASSOCIATED WITH OUR INTERNAL OPERATIONS AND POLICIES
SINCE WE DO NOT INTEND TO DECLARE DIVIDENDS IN THE FORESEEABLE FUTURE, THE
RETURN ON YOUR INVESTMENT WILL DEPEND UPON APPRECIATION OF THE MARKET PRICE OF
YOUR SHARES
Our board of directors does not intend to declare any dividends in
the foreseeable future, but intends to retain all earnings, if any, for use in
our business operations. As a result, your return on your investment in our
company will depend upon the appreciation, if any, in the market price of our
common stock. The holders of our Series A preferred stock and our Class A and
Class B common stock are entitled to receive dividends when, as and if declared
by the board of directors out of funds legally available for dividend payments.
To date, we have not paid any cash dividends. The payment of dividends, if any,
in the future is within the discretion of our board of directors and will depend
upon our earnings, capital requirements and financial condition, and other
relevant factors.
THE LOSS OF THE SERVICES OF MR. ROACH OR MR. NORTH COULD ADVERSELY AFFECT OUR
BUSINESS AND PROSPECTS AND OUR ABILITY TO RECRUIT OR RETAIN QUALIFIED PERSONNEL
Our success may depend upon the efforts of (1) Alfred J. Roach, the
Chairman of our board of directors and one of our major stockholders, and (2)
Mr. John S. North, our President and Chief Executive Officer. Mr. Roach is not
subject to any employment agreement. Our employment agreement with Mr. North
expires on November 15, 2001. Each of these executives is subject to earlier
termination in certain cases. We do not maintain life insurance on the lives of
Mr. Roach or Mr. North. The loss of the services of Mr. Roach or Mr. North could
adversely affect our business and prospects. In addition, because of the nature
of our business, our success depends upon our ability to attract and retain
technologically qualified personnel, particularly research scientists. There is
substantial competition for qualified personnel, including competition from
companies with substantially greater resources than ours. We may not be
successful in recruiting or retaining personnel of the requisite caliber or in
adequate numbers to enable us to conduct our business and effectively compete in
our industry, and the loss of Mr. Roach or Mr. North could make recruitment and
retention even more difficult.
RISKS WHICH MAY DILUTE THE VALUE OF YOUR SHARES OF OUR COMMON STOCK OR LIMIT THE
EFFECT OF YOUR VOTING POWER
OUR COMMON STOCK IS ONLY TRADED ON THE OVER-THE-COUNTER MARKET, AND NASDAQ MAY
DENY OUR REQUEST FOR REINSTATEMENT ON THE NASDAQ SMALLCAP MARKET, WHICH COULD
NEGATIVELY AFFECT THE PRICE AND LIQUIDITY OF THE COMMON STOCK
On January 6, 2000, the Nasdaq Stock Market, Inc. delisted our Class
A common stock from the Nasdaq SmallCap Market. Our Class A common stock
currently trades on the OTC Bulletin Board. We have requested review of the
delisting decision, and we are seeking reinstatement on the Nasdaq SmallCap
Market. If we fail to obtain reinstatement of our Nasdaq SmallCap Market
listing, the market value of our Class A common stock could decline, certain
regulatory rules will apply, and stockholders may find it more difficult to
dispose of their shares.
THE PRICE OF OUR COMMON STOCK IS HIGHLY VOLATILE
The price of our Class A common stock is highly volatile. During the
period from January 1, 1999 to April 20, 2000, the closing bid price of our
Class A common stock has ranged from a high of $6.41 in March 2000 to a low of
$0.25 in September 1999. We believe that the volatile fluctuations of the market
price are based on a number of factors, including (1) the number of shares in
the market at the time as well as the number of shares we may be required to
issue in the future, compared to the market demand for our shares; (2) our
performance, including the
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<PAGE> 8
development and commercialization of our products and proposed products; and (3)
general economic and market conditions. Following periods of volatility in the
market price of a company's securities, securities class action lawsuits have
often been instituted against such a company. If similar litigation were
instituted against us, it could result in substantial costs and a diversion of
our management's attention and resources, which could have an adverse effect on
our business.
AMERICAN BIOGENETIC SCIENCES, INC. IS CONTROLLED BY ALFRED J. ROACH, WHO MAY
SUBSTANTIALLY DETERMINE THE OUTCOME OF PROPOSALS SUBMITTED TO THE STOCKHOLDERS
As of April 20, 2000, Alfred J. Roach, the Chairman of our Board of
Directors, owned and had the power to vote all 3,000,000 outstanding shares of
our Class B common stock and 4,472,250 shares of our Class A common stock. Each
share of Class B common stock is entitled to ten votes, while each share of
Class A common stock is entitled to one vote. Accordingly, as of April 20, 2000,
Mr. Roach was entitled to cast approximately 48.9% of all votes at meetings of
stockholders or by consent without a meeting. As a result, Mr. Roach will be
able to exercise significant control over our company through his practical
ability to determine the outcome of votes of stockholders regarding, among other
things, nomination and election of directors and approval of significant
transactions. Mr. Roach's holdings could increase in the future through
conversion of his 1,000 shares of Series A preferred stock into 1,000,000 shares
of Class A common stock, and through his exercise of options and warrants to
purchase an additional 2,410,000 shares of our Class A common stock, which he
may exercise at any time.
WE HAVE A SUBSTANTIAL NUMBER OF SHARES RESERVED FOR FUTURE ISSUANCE WHICH, WHEN
ISSUED, WILL REDUCE YOUR PERCENTAGE OF OWNERSHIP AND VOTING POWER AND MAY AFFECT
THE PRICE OF YOUR SHARES OF OUR COMMON STOCK
The issuance of a significant number of shares of stock would dilute
the percentage ownership of existing stockholders and could have a significant
adverse effect on the market price of our Class A common stock. As of April 20,
2000, we had outstanding 40,507,028 shares of Class A common stock. On that
date, we had an additional 24,768,340 shares of Class A common stock reserved
for possible future issuance upon conversion of our Class B common stock and
Series A preferred stock and upon exercise of outstanding options and warrants,
including the 400,000 shares of Class A common stock covered by this prospectus.
In addition, we may in the future seek additional financing, which
may result in the issuance of additional shares of our capital stock and/or
rights to acquire additional shares of our capital stock.
A SIGNIFICANT NUMBER OF RESTRICTED SHARES MAY BE RESOLD UNDER THIS PROSPECTUS OR
RULE 144, WHICH MAY AFFECT THE MARKET PRICE OF OUR COMMON STOCK
Future sales of substantial amounts of shares in the public market,
or the perception that those sales could occur, could adversely affect the
market price of our Class A common stock. Of the 40,507,028 shares of Class A
common stock outstanding as of April 20, 2000, approximately 36,141,101 shares
are presently freely transferable without restriction under the Securities Act
and 4,365,927 shares are "restricted shares" that may be sold under an exemption
from registration under the Securities Act. In addition, the selling
stockholders may exercise outstanding warrants to purchase 400,000 shares of
Class A common stock and sell those shares under this prospectus.
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<PAGE> 9
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus and in the documents we
have incorporated by reference may contain forward-looking statements made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Those statements can generally be identified by the use of
forward-looking words like "may," "will," "expect," "anticipate," "intend,"
"estimate," "continue," "believe," or other similar words. These statements
discuss future expectations, or state other "forward-looking" information. When
considering those statements, you should keep in mind the risk factors and other
cautionary statements in this prospectus and in the other documents filed with
the SEC that we have referred you to. The risk factors noted in this section and
other factors noted in this prospectus could cause our actual results to differ
materially from those contained in any forward-looking statements.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
over the Internet at the SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 to
register the shares being offered. This prospectus is part of that registration
statement and, as permitted by the SEC's rules, does not contain all the
information included in the registration statement. For further information with
respect to us and our Class A common stock, you should refer to the registration
statement and to the exhibits and schedules filed as part of the registration
statement, as well as the documents discussed below.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update or supersede this information.
This prospectus may contain summaries of contracts or other
documents. Because they are summaries, they will not contain all of the
information that may be important to you. If you would like complete information
about a contract or other document, you should read the copy filed as an exhibit
to the registration statement or incorporated in the registration statement by
reference.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 (File No. 0-19041) until all of the shares
are sold:
- Annual Report on Form 10-K for the year ended December 31,
1999; and
- The description of our Class A common stock contained in
the registration statement on Form 8-A filed on February
26, 1991, including all amendments or reports filed for
the purpose of updating that description.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Attention: Chief Financial Officer
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
(631) 789-2600
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You can review and copy the registration statement, its exhibits and
schedules, as well as the documents listed below, at the public reference
facilities maintained by the SEC as described above. The registration statement,
including its exhibits and schedules, are also available on the SEC's web site.
USE OF PROCEEDS
The selling stockholders are selling all of the shares covered by
this prospectus for their own account. Accordingly, we will not receive any
proceeds from the resale of the shares.
We prepared this prospectus to satisfy our obligations to the selling
stockholders to register their shares. We will bear the expenses relating to
this registration, other than selling discounts and commissions, which will be
paid by the selling stockholders.
SELLING STOCKHOLDERS
The selling stockholders named below may offer and sell up to 400,000
shares of our Class A common stock under this prospectus. We will not receive
any proceeds from those sales.
The 400,000 shares of our Class A common stock that we are
registering under this prospectus consist of shares that may be issued to the
selling stockholders upon the exercise of certain warrants. We issued the
warrants to the selling stockholders as compensation for financial consulting
services under a financial advisory agreement that we entered into with M.H.
Meyerson & Co., Inc., on August 13, 1998. The warrants expire on August 12, 2002
and are exercisable at prices ranging from $0.75 to $1.50 per share. We agreed
to register these shares under the Securities Act at our expense, other than
selling discounts and commissions, which will be paid for by the selling
stockholders.
The following table lists information regarding the selling
stockholders' beneficial ownership of shares of our Class A common stock as of
April 20, 2000, and as adjusted to reflect the sale of the shares.
Information concerning the selling stockholders, their pledgees,
donees and other non-sale transferees who may become selling stockholders may
change from time to time. To the extent the selling stockholders or any of their
representatives advise us of such changes, we will report those changes in a
prospectus supplement to the extent required. See "Plan of Distribution."
<TABLE>
<CAPTION>
SHARES OF SHARES OF CLASS A COMMON
COMMON STOCK STOCK BENEFICIALLY
OWNED PRIOR SHARES OF OWNED AFTER THE OFFERING
TO THE COMMON STOCK ------------------------
NAME OFFERING TO BE SOLD NUMBER PERCENT
- ---- ------------ ------------ ------ -------
<S> <C> <C> <C> <C>
Jeffrey Berg 41,129(1) 2,000 39,129 *
Martan & Co. 149,600(2) 149,600 0 *
David Nagelberg 112,200(3) 112,200 0 *
Ronald I. Heller 112,200(3) 112,200 0 *
Michael Silvestri 20,000(4) 20,000 0 *
Eugene Whitehouse 4,000(5) 4,000 0 *
</TABLE>
- -----------------------
* Less than 1%
(1) Includes 2,000 shares of Class A common stock issuable upon exercise
of currently exercisable stock purchase warrants.
(2) Consists of 149,600 shares of Class A common stock issuable upon
exercise of currently exercisable stock purchase warrants.
(3) Consists of 112,200 shares of Class A common stock issuable upon
exercise of currently exercisable stock purchase warrants.
(4) Consists of 20,000 shares of Class A common stock issuable upon
exercise of currently exercisable stock purchase warrants.
(5) Consists of 4,000 shares of Class A common stock issuable upon
exercise of currently exercisable stock purchase warrants.
7
<PAGE> 11
PLAN OF DISTRIBUTION
The selling stockholders and their pledgees, donees, transferees and
other non-sale transferees may offer their shares at various times in one or
more of the following transactions:
- in the over-the-counter market; or
- in privately negotiated transactions
at prevailing market prices at the time of sale, at prices related to those
prevailing market prices, at negotiated prices or at fixed prices.
The selling stockholders may also sell the shares under Rule 144
instead of under this prospectus, if Rule 144 is available for those sales.
The transactions in the shares covered by this prospectus may be
carried out by one or more of the following methods:
- ordinary brokerage transactions and transactions in which
the broker solicits purchasers;
- purchases by a broker or dealer as principal, and the
resale by that broker or dealer for its account as part
of the distribution under this prospectus, including
resale to another broker or dealer;
- block trades in which the broker or dealer will attempt to
sell the shares as agent but may position and resell a
portion of the block as principal in order to facilitate
the transaction; or
- negotiated transactions between selling stockholders and
purchasers, with or without a broker or dealer.
The selling stockholders and any broker-dealers or other persons
acting on the behalf of parties that participate in the distribution of the
shares may be deemed to be underwriters. Any commissions or profits they receive
on the resale of the shares may be deemed to be underwriting discounts and
commissions under the Securities Act.
As of the date of this prospectus, we are not aware of any agreement,
arrangement or understanding between any broker or dealer and any of the selling
stockholders with respect to the offer or sale of the shares under this
prospectus.
We have advised the selling stockholders that, during the time each
is engaged in distributing shares covered by this prospectus, each must comply
with the requirements of the Securities Act and the Exchange Act, including Rule
10b-5 and Regulation M (to the extent that it may apply to sales under this
prospectus). Under those rules and regulations, they:
- may not engage in any stabilization activity in connection
with our securities;
- must furnish each broker that offers Class A common stock
covered by this prospectus with the number of copies of
this prospectus that are required by each broker; and
- may not bid for or purchase any of our securities or
attempt to induce any person to purchase any of our
securities other than as permitted under the Exchange Act.
8
<PAGE> 12
In the financial advisory agreement we entered into with M.H.
Meyerson & Co., Inc., and under the terms of each of the warrants, we agreed to
indemnify and hold harmless each selling stockholder against liabilities under
the Securities Act, which may be based upon, among other things, any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact, unless made or omitted in reliance upon
written information provided to us by that selling stockholder for use in this
prospectus. We have agreed to bear the expenses incident to the registration of
the shares, other than selling discounts and commissions.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the Delaware General Corporation Law allows companies
to indemnify their directors and officers against expenses, judgments, fines and
amounts paid in settlement, under the conditions and limitations described in
the law, with respect to various lawsuits and other proceedings to which they
become a party by reason of the fact that they were serving as our officer,
director, employee or agent or of another enterprise at our request. Our
certificate of incorporation authorizes us to indemnify our officers, directors
and other agents to the fullest extent permitted under Delaware law.
Our certificate of incorporation provides that a director is not
personally liable for monetary damages to us or our stockholders for breach of
his or her fiduciary duties as a director. However, a director will be held
liable for a breach of his or her duty of loyalty to us or our stockholders, his
or her intentional misconduct or willful violation of law, actions or inactions
not in good faith, an unlawful stock purchase or payment of a dividend under
Delaware law, or transactions from which the director derives an improper
personal benefit. This limitation of liability does not affect the availability
of equitable remedies against the director, including injunctive relief or
rescission.
We have purchased a directors and officers liability and
reimbursement policy that covers liabilities of our directors and officers
arising out of claims based upon acts or omissions in their capacities as
directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to our directors, officers or
controlling persons pursuant to the foregoing provisions, or otherwise, we have
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
LEGAL MATTERS
For the purposes of this offering, Brown, Rudnick, Freed & Gesmer
will pass upon the validity of the shares of Class A common stock covered under
this prospectus.
EXPERTS
The audited consolidated financial statements, including the related
notes to those statements, incorporated by reference in this prospectus and
elsewhere in the registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
to those statements. Those financial statements and report are incorporated by
reference herein in reliance upon the authority of Arthur Andersen LLP as
experts in accounting and auditing in giving said reports.
9
<PAGE> 13
================================================================================
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS IS NOT AN OFFER TO
SELL NOR IS IT SOLICITING AN OFFER TO BUY ANY SHARES IN ANY JURISDICTION WHERE
THE OFFER OR SALE IS NOT PERMITTED. THE INFORMATION IN THIS PROSPECTUS IS
CURRENT AS OF _____________, 2000.
-----------------
TABLE OF CONTENTS
-----------------
Page
Prospectus Summary 1
Risk Factors 2
Information Regarding
Forward-Looking Statements 6
Where You Can Find More
Information About Us 6
Use of Proceeds 7
Selling Stockholders 7
Plan of Distribution 8
Indemnification for Securities
Act Liabilities 9
Legal Matters 9
Experts 9
400,000 Shares
American Biogenetic Sciences, Inc.
Class A Common Stock
----------
PROSPECTUS
----------
________ __, 2000
================================================================================
10
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Listed below is an estimate of the fees and expenses payable in
connection with the proposed offering and sale of the shares. We will bear all
of the costs of issuance and distribution as follows:
SEC Registration Fee $ 168.30
Accounting Fees and Expenses $ 2,000.00
Legal Fees and Expenses $ 7,500.00
Costs of Printing and Engraving $ 6,000.00
Miscellaneous $ 1,331.70
----------
TOTAL $17,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as our company, may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, other than a derivative action by or in
the right of the corporation, by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by that person in connection with
that action, suit or proceeding if that person acted in good faith and in a
manner that the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that the person's conduct was
unlawful. In the case of a derivative action, a Delaware corporation may
indemnify that person against expenses actually and reasonably incurred by that
person in connection with the defense or settlement of that action or suit if
that person acted in good faith and in a manner that person reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which that person shall have been adjudged to be liable to the corporation
unless and only to the extent that the court determines that the person is
fairly and reasonably entitled to indemnity for those expenses.
Article VII of the registrant's By-laws provides for indemnification
of our directors, officers, employees and agents to the fullest extent permitted
under Delaware law. In addition, Article TENTH of the registrant's Restated
Certificate of Incorporation provides, in general, that no director of the
registrant shall be personally liable to the registrant or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (which provides that under certain circumstances,
directors may be jointly and severally liable for willful or negligent
violations of the DGCL provisions regarding the payment of dividends or stock
repurchases or redemptions), as the same exists or hereafter may be amended, or
(iv) for any transaction from which the director derived an improper personal
benefit.
ABS has purchased a Directors and Officers Liability and
Reimbursement policy that covers liabilities of directors and officers of ABS
arising out of claims based upon acts or omissions in their capacities as
directors and officers.
11
<PAGE> 15
ITEM 16. EXHIBITS
Exhibit
Number Document
- ------- --------
*4 Form of Warrant issued to several individuals under ABS'
Financial Advisory Agreement with M.H. Meyerson & Co., Inc.,
dated as of August 13, 1998 and schedule of holders thereof
(filed as Exhibit 4.1(e) to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No.
0-19041).
5 Opinion of Brown, Rudnick, Freed & Gesmer as to the legality of
the Class A Common Stock being offered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer (included in Exhibit
5).
24 Power of Attorney (contained on Signature Page to the
Registration Statement).
- -----------------------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant
to the Securities Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which are
incorporated by reference herein.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information included in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in this
Registration Statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by us under Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
12
<PAGE> 16
(b) The undersigned Registrant undertakes that, for purposes of
determining any liability under the Securities Act, each filing of our annual
report under Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons under our by-laws, or otherwise, we have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by us of expenses incurred or paid by our
directors, officers or controlling persons in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
13
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Copiague, State of New York, on the 1st day of May,
2000.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Alfred J. Roach
--------------------------
Alfred J. Roach,
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Alfred J. Roach, Josef C. Schoell
and Timothy J. Roach and each of them with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments (including
post-effective amendments) and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact or their
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated on the 1st day of May, 2000.
Signature Title
--------- -----
/s/ Alfred J. Roach Chairman of the Board and Director
- ----------------------------
Alfred J. Roach
/s/ John S. North President, Chief Executive Officer and
- ---------------------------- Director
John S. North
/s/ Timothy J. Roach Secretary, Treasurer and Director
- ----------------------------
Timothy J. Roach
/s/ Josef C. Schoell Vice President-Finance (Principal
- ---------------------------- Financial and Accounting Officer)
Josef C. Schoell
- ---------------------------- Director
Gustav Victor Rudolph Born
/s/ Ellena M. Byrne Director
- ----------------------------
Ellena M. Byrne
/s/ Joseph C. Hogan Director
- ----------------------------
Joseph C. Hogan
/s/ Glenna M. Crooks Director
- ----------------------------
Glenna M. Crooks
14
<PAGE> 18
EXHIBIT INDEX
Exhibit
Number Document
- ------ --------
*4 Form of Warrant issued to several individuals under ABS' Financial
Advisory Agreement with M.H. Meyerson & Co., Inc., dated as of
August 13, 1998 and schedule of holders thereof (filed as Exhibit
4.1(e) to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, File No. 0-19041).
5 Opinion of Brown, Rudnick, Freed & Gesmer as to the legality of the
Class A Common Stock being offered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer (included in Exhibit 5).
24 Power of Attorney (contained on Signature Page to the Registration
Statement).
- -----------------------
* Not filed herewith. In accordance with Rule 411 promulgated
pursuant to the Securities Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which are incorporated by
reference herein.
15
<PAGE> 1
EXHIBIT 5
May 2, 2000
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
Attn: John S. North, President and Chief Executive Officer
RE: Registration Statement on Form S-3 filed on May 1, 2000
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to American Biogenetic Sciences, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of a Registration Statement
on Form S-3 (the "Registration Statement") pursuant to which the Company is
registering under the Securities Act of 1933, as amended (the "Act"), a total of
400,000 shares of Class A Common Stock, par value $.001 per share (the
"Shares"). This opinion is being rendered in connection with the filing of the
Registration Statement.
In connection with this opinion, we have examined the following
documents (collectively, the "Documents"):
(i) the Restated Certificate of Incorporation of the Company,
as amended, and Certificate of Designation, as certified
by the Secretary of State of the State of Delaware on
April 27, 2000, and a certificate of the Secretary of the
Company dated May 1, 2000, that there have been no
amendments thereto;
(ii) the Amended and Restated By-laws of the Company, certified
by the Secretary of the Company as presently being in
effect;
(iii) a Certificate of the Secretary of the Company dated May 1,
2000, which certifies the adoption of certain resolutions
by the Board of Directors of the Company;
(iv) a Financial Advisory Agreement dated as of August 13,
1998, by and between the Company and M.H. Meyerson & Co.,
Inc., as amended as of October 1, 1998 (the "Financial
Advisory Agreement");
(v) warrants to purchase a total of 400,000 shares of Class A
Common Stock, each dated as of August 13, 1998, issued
pursuant to the Financial Advisory Agreement (the
"Warrants"); and
(vi) a letter dated April 20, 2000, from Continental Stock
Transfer & Trust Company, the Company's transfer agent, as
to the number of issued and outstanding shares of the
Company.
We have, without independent investigation, relied upon the
representations and warranties of the various parties as to matters of objective
fact contained in the Documents.
We have not made any independent review or investigation of orders,
judgments, rules or other
<PAGE> 2
regulations or decrees by which the Company or any of its property may be bound,
nor have we made any independent investigation as to the existence of actions,
suits, investigations or proceedings, if any, pending or threatened against the
Company.
With your concurrence, the opinions hereafter expressed, whether or
not qualified by language such as "to our knowledge," are based solely upon (1)
our review of the Documents and (2) such review of published sources of law as
we have deemed necessary.
This firm, in rendering legal opinions, customarily makes certain
assumptions which are described in Schedule A hereto. In the course of our
representation of the Company in connection with preparation of the Registration
Statement, nothing has come to our attention which causes us to believe reliance
upon any of those assumptions is inappropriate, and, with your concurrence, the
opinions hereafter expressed are based upon those assumptions.
We express no legal opinion upon any matter other than that
explicitly addressed in the second following paragraph, and our express opinion
therein contained shall not be interpreted to be an implied opinion upon any
other matter.
Our opinion contained herein is limited to the Delaware General
Corporation Law and the Federal law of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized and, when issued and delivered in
accordance with the terms of the Financial Advisory Agreement and the Warrants,
will be validly issued, fully paid and non-assessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an Exhibit
to said Registration Statement and to the reference to our firm wherever it
appears in the Registration Statement, including the prospectus constituting a
part thereof and any amendments thereto. This opinion may be used in connection
with the offering of the Shares only while the Registration Statement, as it may
be amended from time to time, remains effective under the Act.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: BROWN, RUDNICK, FREED & GESMER, P.C., a Partner
By: /s/ David H. Murphree
---------------------------------------
David H. Murphree, A Member
Duly Authorized
2
<PAGE> 3
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
------------------------------
In rendering legal opinions in third party transactions, Brown,
Rudnick, Freed & Gesmer makes certain customary assumptions described below:
1. Each natural person executing any of the Documents has
sufficient legal capacity to enter into such Documents and
perform the transactions contemplated thereby.
2. The Company holds requisite title and rights to any
property involved in the transactions described in the
Documents and purported to be owned by it.
3. Each person other than the Company has all requisite power
and authority and has taken all necessary corporate or
other action to enter into those Documents to which it is
a party or by which it is bound, to the extent necessary
to make the Documents enforceable against it.
4. Each person other than the Company has complied with all
legal requirements pertaining to its status as such status
relates to its rights to enforce the Documents against the
Company.
5. Each Document is accurate, complete and authentic, each
original is authentic, each copy conforms to an authentic
original and all signatures are genuine.
6. All official public records are accurate, complete and
properly indexed and filed.
7. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress, or undue influence by or
among any of the parties to the Documents.
8. The conduct of the parties to the transactions described
in the Documents has complied in the past and will comply
in the future with any requirement of good faith, fair
dealing and conscionability.
9. Each person other than the Company has acted in good faith
and without notice of any defense against the enforcement
of any rights created by, or adverse claim to any property
or security interest transferred or created as part of,
the transactions described in the Documents.
10. There are no agreements or understandings among the
parties to or bound by the Documents, and there is no
usage of trade or course of prior dealing among such
parties, that would define, modify, waive, or qualify the
terms of any of the Documents.
11. The Company will not in the future take any discretionary
action (including a decision not to act) permitted under
any Document that would result in a violation of law or
constitute a breach or default under that or any other
Document or court or administrative orders, writs,
judgments and decrees that name the Company and are
specifically directed to it or its property.
12. The Company will obtain all permits and governmental
approvals not required at the time of the closing of the
transaction contemplated by the Documents but which are
subsequently required, and will take all actions similarly
required, relevant to subsequent consummation of the
transaction contemplated by the Document or performance of
the Documents.
13. All parties to or bound by the Documents will act in
accordance with, and will refrain from taking any action
that is forbidden by, the terms and conditions of the
Documents.
3
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
March 10, 2000, included in American Biogenetic Sciences, Inc.'s Form 10-K for
the year ended December 31, 1999, and to all references to our firm included in
this Registration Statement.
/s/ Arthur Andersen LLP
Melville, New York
May 1, 2000
