Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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AMERICAN BIOGENETIC SCIENCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2655906
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1375 Akron Street, Copiague, New York 11726
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
Timothy J. Roach, Treasurer
American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, New York 11726
(Name and address of agent for service)
(516) 789-2600
(Telephone number, including area code, of agent for service)
with a copy to:
Leonard W. Suroff, Esq.
1375 Akron Street
Copiague, New York 11726
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum Amount
each class Amount offering aggregate of
of securities to be price per offering registration
to be registered registered(1) share price fee
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Class A Common
Stock, par value 100,000 shares $4.78 $ 478,000 $ 164.83
$.001 per share 900,000 shares $4.78 4,302,000 1,483.45
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Total 1,000,000 shares $ 4,780,000 $1,648.28
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(a) Pursuant to Rule 416(b), there shall also be deemed covered hereby
all additional securities resulting from anti-dilution adjustments
under the 1996 Stock Option Plan.
(b) Estimated solely for the purpose of calculating the registration fee
on the basis of, pursuant to Rule 457(h): (i) with respect to options
heretofore granted to purchase 100,000 shares, the exercise price
thereof of $4.78 per share and (ii) with respect to the remaining
900,000 shares, the average of the high and low sales prices per
share of the registrant's Common Stock on the NASDAQ National Market
System on July 30, 1996.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 and the Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 heretofore filed by the Company with the Commission (File No.
0-19041) pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"1934 Act"), and the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on February 25, 1991 under
the 1934 Act, including any amendment or report filed for the purpose of
updating such description, are incorporated herein by reference.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as the registrant, may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than a derivative action
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably
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believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court determines such person
is fairly and reasonably entitled to indemnity for such expenses. Section 7 of
Article VII of the registrant's By-laws provides for indemnification of
directors, officers, employees and agents of the Company to the extent permitted
by the DGCL. In addition, Article 9 of the registrant's Restated Certificate of
Incorporation provides, in general, that no director of the registrant shall be
liable to the registrant or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL (which
provides that under certain circumstances, directors may be jointly and
severally liable for willful or negligent violations of the DGCL provisions
regarding the payment of dividends or stock repurchases or redemptions), or (iv)
for any transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number
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4.01 Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of Delaware on July 30, 1996.
4.02 By-Laws of the Company, as amended.
5.01 Opinion and consent of Leonard W. Suroff, Esq. as to the legality of
the Class A Common Stock being offered.
23.01 Consent of Arthur Andersen LLP
23.02 Consent of Leonard W. Suroff, Esq. (contained in Exhibit 5.01).
*99.01 American Biogenetic Sciences, Inc. 1996 Stock Option Plan.
Incorporated by reference to Exhibit A to the Company's Proxy
Statement dated April 29, 1996 used in connection with the Company's
1996 Annual Meeting of Stockholders (File No. 0-19041).
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* Filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Copiague, State of New York, on the 31st day of July,
1996.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Alfred J. Roach
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Alfred J. Roach, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 31st day of July, 1996.
Signature Title
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/s/Alfred J. Roach Chairman of the Board (Chief Executive Officer)
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Alfred J. Roach
/s/ Josef C. Schoell Vice President, Finance (Principal Financial and
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Josef C. Schoell
/s/ Paul E. Gargan Director
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Paul E. Gargan
/s/ Ellena M. Byrne Director
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Ellena M. Byrne
/s/ Joseph C. Hogan Director
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Joseph C. Hogan
/s/ Timothy J. Roach Director
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Timothy J. Roach
/s/ William G. Sharwell Director
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William G. Sharwell
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EXHIBIT INDEX
Exhibit
Number
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4.01 Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of Delaware on July 30, 1996.
4.02 By-Laws of the Company, as amended.
5.01 Opinion and consent of Leonard W. Suroff, Esq. as to the legality of
the Class A Common Stock being offered.
23.01 Consent of Arthur Andersen LLP
23.02 Consent of Leonard W. Suroff, Esq. (contained in Exhibit 5.01).
*99.01 American Biogenetic Sciences, Inc. 1996 Stock Option Plan.
Incorporated by reference to Exhibit A to the Company's Proxy
Statement dated April 29, 1996 used in connection with the Company's
1996 Annual Meeting of Stockholders (File No. 0-19041).
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* Filed herewith.