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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON September 12, 2000
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)
2000 STOCK OPTION PLAN
(Full title of the plan)
DAVID H. MURPHREE, ESQ.
BROWN RUDNICK FREED & GESMER
ONE FINANCIAL CENTER
BOSTON, MA 02111
(Name and address of agent for service)
(617) 856-8200
(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 maximum
Title of each class of securities Amount to Proposed maximum aggregate offering Amount of
to be registered be Registered(1) offering price per Share price(2) registration fee(3)
Class A Common Stock,
par value $.001 per share 3,000,000 shares $1.844/share $5,532,000 $1,460.45
================================================================================================================================
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
2000 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(h)(1) and 457(c), on the basis of the average of the
high and low sales prices per share of the Registrant's Class A Common
Stock on the Nasdaq SmallCap Market on September 5, 2000.
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(3) Calculated pursuant to Rule 457(h)(1).
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
American Biogenetic Sciences, Inc., which is referred to herein as the
"Registrant," incorporates by reference in this Registration Statement the
following documents and information previously filed with the Securities and
Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed March 30, 2000 pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "1934 Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000, filed May 12, 2000 pursuant to Section 13 of the 1934 Act;
(c) The Registrant's Amended Quarterly Report on Form 10-Q/A for the fiscal
quarter ended March 31, 2000, filed May 16, 2000 pursuant to Section 13 of the
1934 Act;
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2000, filed August 10, 2000 pursuant to Section 13 of the 1934
Act; and
(e) The Registrant's Current Report on Form 8-K filed July 27, 2000,
relating to the listing of the Registrant's Class A Common Stock on the NASDAQ
SmallCap Market; and
(f) The description of the Registrant's Class A Common Stock contained in
the Registrant'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.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act on or after the date of this Registration Statement
and 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 part hereof from the date of filing of such
documents.
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
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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 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
5.1 Opinion and consent of Brown Rudnick Freed & Gesmer P.C. 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 P.C. (contained in Exhibit 5.1).
24.1 Power of Attorney (included in the signature page to this Registration
Statement)
99.1 American Biogenetic Sciences, Inc. 2000 Stock Option Plan.
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:
(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
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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
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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 day of
September 12, 2000.
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Alfred J. Roach
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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 to this registration
statement (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 attorney-in-facts 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 below by the following persons in the
capacities indicated on the 12th day of September, 2000.
Signature Title
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/s/ Alfred J. Roach
- ------------------------------- Chairman of the Board and Director
Alfred J. Roach
/s/ John S. North
- ------------------------------- President, Chief Executive Officer
John S. North and Director
/s/ Timothy J. Roach
- ------------------------------- Secretary, Treasurer and Director
Timothy J. Roach
/s/ Josef C. Schoell
- ------------------------------- Vice President-Finance (Principal Financial
Josef C. Schoell and Accounting Officer)
/s/ Ellena M. Byrne
- ------------------------------- Director
Ellena M. Byrne
/s/ Glenna M. Crooks
- ------------------------------- Director
Glenna M. Crooks
/s/ Joseph C. Hogan
- ------------------------------- Director
Joseph C. Hogan
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EXHIBIT INDEX
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Exhibit
Number
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5.1 Opinion and consent of Brown Rudnick Freed & Gesmer P.C. 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 P.C. (contained in Exhibit
5.1).
24.1 Power of Attorney (included in the signature page to this Registration
Statement)
99.1 American Biogenetic Sciences, Inc. 2000 Stock Option Plan.