1
Exhibit 99.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the ______
day of January, 2000, by and between American Biogenetic Sciences, Inc., a
Delaware corporation ("ABS") and Abbott Laboratories, an Illinois corporation
("Abbott").
WHEREAS, ABS and Abbott have entered into a Registration Rights Agreement
and an Exclusive License Agreement (the "License Agreement"), both of even date
herewith (collectively the "Alliance Agreements"); and
WHEREAS, subject to the terms and conditions of this Agreement and on the
basis of the representations and warranties set forth herein, ABS and Abbott
have agreed to the purchase and sale of shares of ABS's Class A common stock
$0.001 par value per share (the "Class A Common Stock").
NOW THEREFORE, ABS and Abbott agree as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to the terms and conditions of
this Agreement and on the basis of the representations and warranties set forth
herein, ABS shall issue and sell to Abbott and Abbott shall purchase from ABS at
the Share Closing provided for in SECTION 1.3, shares of ABS's Class A Common
Stock (the "Shares") having an aggregate value of One Million Five Hundred
Thousand Dollars ($1,500,000).
1.1 PRICE PER SHARE. The price per share to be paid by Abbott for
each of the Shares (the "Price per Share") shall be equal to the arithmetic
average for the twenty (20) consecutive trading day period ending on the second
day preceding the date of this Agreement of (i) the last sale price, as reported
on the Small Cap Market, of the Class A Common Stock for the days that it was
traded on that market, and (ii) the last sale price reported on the OTC Bulletin
Board, or if no sale is reported that day, the average of the bid and ask price,
of the Class A Common Stock, as reported on the OTC Bulletin Board for the days
when it was primarily traded on that market.
1.2 NUMBER OF SHARES. On the day before the Share Closing, ABS and
Abbott shall determine the number of Shares to be issued, purchased, and sold
pursuant to this Agreement by dividing:
(a) One Million Five Hundred Thousand Dollars
($1,500,000) by
(b) the Price per Share
and then rounding down to the nearest whole number the number obtained by that
division.
1.3 SHARE CLOSING. The closing of the purchase and sale of the
Shares (the "Share Closing") shall be held at the offices of Brown, Rudnick,
Freed & Gesmer, One Financial Center, Boston, MA 02111, within ten (10) business
days following the date of this Agreement, at 10:00 a.m. Eastern time, or at
such other time and place upon which ABS and Abbott shall agree.
1.4 DELIVERY. At the Share Closing, ABS will issue a certificate to
Abbott registered in Abbott's name representing the number of Shares being
purchased by Abbott against payment to ABS of One Million Five Hundred Thousand
Dollars ($1,500,000). Abbott shall pay the purchase price to ABS by wire
transfer to the bank account of ABS:
Name of Bank: Bank of New York
Name of Account: American Biogenetic Sciences, Inc.
Account Number: 041-5206748
ABA #: 021-000018
2. REPRESENTATIONS AND WARRANTIES OF ABS. Except as set forth in the
Schedule of Exceptions attached hereto as EXHIBIT - SECTION 2 (SCHEDULE OF
EXCEPTIONS), ABS hereby represents, warrants, and covenants to Abbott that:
2
2.1 AUTHORITY.
(a) ABS has full legal right power and authority to execute and
deliver this Agreement and each of the Alliance Agreements and to consummate the
transactions contemplated hereby and thereby.
(b) All corporate action on the part of ABS, its officers,
directors, and stockholders necessary for the execution and delivery of, and the
consummation of the transactions contemplated by, this Agreement and the
Alliance Agreements and the performance of all obligations of ABS hereunder and
thereunder have been taken.
(c) Assuming the due and proper execution and delivery by Abbott,
this Agreement and each of the Alliance Agreements, upon execution and delivery
by ABS, constitute legal, valid and binding obligations of ABS, enforceable in
accordance with their respective terms, except as may be limited by: (i)
applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the enforcement of creditors rights
generally, (ii) the effect of rules of law governing the availability of
equitable remedies, and (iii) the enforceability of the indemnity obligations of
SECTION 3.1 of the Registration Rights Agreement.
(d) The making and performance of this Agreement and the Alliance
Agreements by ABS and the consummation of the transactions contemplated by this
Agreement and the Alliance Agreements will not (i) violate any provision of the
organizational documents of ABS or any of its subsidiaries, (ii) result in the
creation of any lien, charge, security interest or encumbrance upon any assets
of ABS pursuant to the terms or provisions of, and will not conflict with,
result in the breach or violation of, or constitute, (either by itself or upon
notice or the passage of time or both), a default under or give rise to a right
of termination, cancellation, or acceleration of any obligation to, or loss of
benefits under any agreement, mortgage, deed of trust, lease, franchise,
licence, indenture, permit, or other instrument to which ABS or any of its
subsidiaries is a party or by which ABS or any of its subsidiaries or any of
their respective properties may be bound or affected, in each case which would
have a material adverse affect on the condition (financial or otherwise),
properties, business, prospects, or results of operations of ABS and its
subsidiaries taken as a whole (a "Material Adverse Effect") or which would
restrict the power of ABS to perform its obligations as contemplated by this
Agreement or the Alliance Agreements or, (iii) violate, to ABS's knowledge, any
statute or any authorization, judgment, decree, order, rule or regulation of any
court or any regulatory body, administrative agency, or other governmental body
applicable to ABS or any of its subsidiaries or any of their respective
properties.
(e) Except as disclosed on EXHIBIT - SECTION 2 (SCHEDULE OF
EXCEPTIONS) item 1 hereto, the Company does not have or otherwise contribute to
or participate in any employee benefit plan subject to the Employee Retirement
Income Security Act of 1974.
2.2 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
(a) ABS and each of its subsidiaries, has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority (corporate and
other) to own and lease its properties and conduct its businesses as presently
conducted and as proposed to be conducted. ABS and each of its subsidiaries is
duly qualified to do business and in good standing as a foreign corporation in
each jurisdiction in which the ownership or leasing of properties or the conduct
of its business requires such qualification, except for jurisdictions in which
the failure to so qualify would not have a Material Adverse Effect; and no
proceeding has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail such power and authority or
qualification.
(b) Except as set forth on EXHIBIT - SECTION 2 (SCHEDULE OF
EXCEPTIONS) item 2, ABS has no direct or indirect loans to any partnership,
corporation, joint venture, business association, or other entity, nor does it
own or control, directly or indirectly, any interest in any partnership,
corporation, joint venture, association, or entity which is material to its
business. With respect to any person, the term "subsidiary" means any
corporation more than fifty percent (50%) of whose total interest is, directly
or indirectly, owned by that person. The term
2
3
"affiliate" when used to indicate a relationship with a specified person, shall
mean a person that directly, or indirectly through one or more intermediaries,
control, or is controlled by, or is under common control with, such specified
person.
(c) ABS has delivered to Abbott complete and correct copies of its
Certificate of Incorporation and Bylaws as amended to the date hereof, and will
furnish to Abbott true and correct copies of any amendments thereto throughout
the term of this Agreement.
2.3 CAPITALIZATION.
(a) The authorized capital stock of ABS consists of 100,000,000
shares of Class A Common Stock, and 3,000,000 shares of Class B common stock
(the "Class B Common Stock"). The Board of Directors has approved the
solicitation of stockholder consents to amend ABS's Certificate of Incorporation
to authorize up to 10,000,000 shares of preferred stock, $.001 par value per
share (the "Preferred Stock"), of which it intends to designate 6,000 as Series
A Preferred Stock.
(b) As of January 14, 2000, there were 36,918,510 shares of Class A
Common Stock issued and outstanding, 3,000,000 shares of Class B Common Stock
issued and outstanding and no shares of Preferred Stock issued and outstanding.
All such issued an outstanding shares have been duly authorized and validly
issued and are fully paid and non-assessable and no issued and outstanding
shares are subject to preemptive rights created by statute, the ABS Certificate
of Incorporation or Bylaws, or any agreement to which ABS is a party or by which
ABS may be bound.
(c) All outstanding shares of ABS's capital stock have been issued
in compliance with applicable federal and state securities laws.
(d) ABS has reserved for issuance an aggregate of approximately
8,248,000 shares of Class A Common Stock for issuance in connection with options
and warrants.
(e) Except (i) as set forth in Section 2.3(d) above and on EXHIBIT -
SECTION 2 (SCHEDULE OF EXCEPTIONS) item 3, and (ii) for the right of Abbott to
acquire the Shares under this Agreement, there are no other options, warrants,
conversion privileges, or other contractual rights presently outstanding or in
existence to purchase or otherwise acquire any authorized but unissued shares of
ABS's capital stock or other securities or the capital stock or other securities
of any subsidiary of ABS.
2.4 SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW. The
purchase and sale of the Shares pursuant to this Agreement has been approved by
the Board of Directors of ABS prior to the date of this Agreement for the
purposes of Section 203 of the Delaware General Corporation Law ("Section 203")
such that after the date of this Agreement, neither Abbott nor any of its
affiliates will be subject to the restrictions on business combination
transactions set forth in Section 203 with respect to ABS on account of such
purchase.
2.5 VALID ISSUANCE OF CLASS A COMMON STOCK. The Shares have been
duly authorized and, when issued, delivered, and paid for in the manner set
forth in this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and Abbott shall have good and marketable title to the Shares
free of any liens or restrictions (unless created by Abbott), other than the
restrictions expressly set forth in this Agreement or the Alliance Agreements or
under applicable state and federal securities laws. No preemptive rights or
other rights to subscribe for or purchase exist with respect to the issuance and
sale of the Shares by ABS pursuant to this Agreement.
2.6 GOVERNMENTAL CONSENTS. Other than compliance with the Securities
Act of 1933, as amended (the "Securities Act") and such filings as may be
required to be made with the National Association of Securities Dealers, no
consent, approval order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority on the part of ABS is required in connection with the
consummation of the transactions contemplated by this Agreement.
3
4
2.7 OFFERING. Subject in part to the truth and accuracy of Abbott's
representations set forth in SECTION 3 of this Agreement, the offer, sale, and
issuance of the Class A Common Stock as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act, and neither ABS
nor any authorized agent acting on its behalf will take any action hereafter
that would cause the loss of such exemption.
2.8 LITIGATION. Other than as disclosed in its SEC Documents, there
are no legal or governmental actions, suits or proceedings pending or, to ABS's
knowledge, threatened to which ABS or any of its subsidiaries is or may be a
party or of which property owned or leased by ABS or any of its subsidiaries is
or may be the subject, which actions, suits or proceedings might, individually
or in the aggregate, prevent or adversely affect the transactions contemplated
by this Agreement or result in a Material Adverse Effect. ABS is not a party or
subject to the provisions of any material injunction, judgment, decree or order
of any court, regulatory body, administrative agency, or other governmental
body. There are no material legal or governmental actions, suits, or proceedings
pending or, to ABS's knowledge, threatened against any executive officers or
directors of ABS.
2.9 DISCLOSURE. ABS has provided Abbott with all the information
that Abbott has requested for deciding whether to purchase the Class A Common
Stock. Neither this Agreement, nor any other statements or certificates made or
delivered in connection herewith or therewith contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
herein or therein not misleading.
2.10 CHANGES. Since September 30, 1999, except as otherwise
disclosed in the Schedule of Exceptions:
(a) ABS has not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business;
(b) ABS has not sustained any material loss or interference with its
business or properties from fire, flood, windstorm, accident, or other calamity,
whether or not covered by insurance;
(c) ABS has not paid or declared any dividends or other
distributions with respect to its capital stock and ABS is not in default in the
payment of principal or interest on any outstanding debt obligations;
(d) there has not been any change in the capital stock or, other
than in the ordinary course of business, indebtedness material to ABS; and
(e) there has not been any event, change or development resulting in
or which may reasonably be expected to result in a Material Adverse Event.
2.11 SEC DOCUMENTS.
(a) Since January 1, 1997 ABS has filed each statement, annual,
quarterly, and other report, registration statement and definitive proxy
statement required to be filed (other than preliminary material) by ABS with the
United States Securities and Exchange Commission (the "SEC Documents"). As of
their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Securities Exchange Act") as the case may be, and
none of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading.
(b) The audited consolidated financial statements and unaudited
consolidated interim financial statements of ABS included in ABS's SEC Documents
fairly present in all material respects in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
in the notes thereto), the consolidated financial position of ABS as of the
dates thereof and ABS's consolidated results of
4
5
operations and cash flows for the periods then ended. Except as reflected or
reserved against in the consolidated balance sheet of ABS at September 30, 1999
or the Schedule of Exceptions, ABS has no liabilities of any nature (whether
accrued, absolute, contingent or otherwise), except for liabilities incurred in
the ordinary course of business since that date and liabilities which would not,
individually or in the aggregate, have a Material Adverse Effect.
2.12 USE OF PROCEEDS. ABS will use the proceeds from the sale of the
Shares for research and development and for working capital.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ABBOTT. Abbott hereby
represents, warrants, and covenants to ABS that:
3.1 AUTHORIZATION. Abbott has full power and authority to execute
and deliver, and to consummate the transactions contemplated by the Share
Closing and this Agreement. All corporate action on the part of Abbott necessary
for (i) the execution and delivery of, and the consummation of the transactions
contemplated by, this Agreement; and (ii) as of the Share Closing, the
performance of all obligations of Abbott under this Agreement, has been taken.
Assuming the due and proper execution and delivery by ABS, this Agreement, upon
execution and delivery by Abbott, constitutes a legal, valid and binding
obligation of Abbott, enforceable in accordance with its terms, except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization, or other laws
of general application relating to or affecting the enforcement of creditors
rights generally, and (ii) the effect of rules of law governing the availability
of equitable remedies.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
Abbott in reliance upon Abbott's representation to ABS, which by Abbott's
execution of this Agreement Abbott hereby confirms, that the shares to be
received by Abbott will be acquired for investment for Abbott's own account, not
as a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that Abbott has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, Abbott further represents that Abbott does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares.
3.3 GOVERNMENTAL CONSENTS. Other than compliance with the Securities
Act, the Securities Exchange Act, and such filings as may be required to be made
with the Securities and Exchange Commission or the National Association of
Securities Dealers, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of Abbott is required
in connection with the consummation of the transactions contemplated by this
Agreement.
3.4 NO CONSENT. No consent, approval, waiver or other action by any
entity under any material contract, agreement, indenture, lease, instrument, or
other document to which Abbott is a party or by which it is bound is required or
necessary for the execution, delivery and performance of, or the consummation of
the transactions contemplated by, this Agreement by Abbott.
3.5 DISCLOSURE OF INFORMATION. Abbott believes it has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Shares. Abbott further represents that it has had an opportunity to
ask questions and receive answers from ABS regarding the terms and conditions of
the offering of the Shares and the business, properties, prospects, and
financial condition of ABS. The foregoing, however, does not limit or modify the
representations and warranties of ABS in SECTION 2 of this Agreement or the
right of Abbott to rely on those representations and warranties.
3.6 INVESTMENT EXPERIENCE. Abbott is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Shares. Abbott has not been organized
for the purpose of acquiring the Shares.
5
6
3.7 RESTRICTED SECURITIES. Abbott understands that the Shares it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from ABS in a transaction
not involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the
Securities Act only in certain limited circumstances. In this connection, Abbott
represents that it is familiar with Securities and Exchange Commission Rule 144,
as presently in effect, and understands the resale limitations imposed thereby
and by the Securities Act.
3.8 LEGENDS.
(a) Each certificate or instrument representing Shares shall bear
legends in substantially the following forms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED
UNDER THE SECURITIES ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED
FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT, OR (II) IN COMPLIANCE WITH RULE 144, OR (III)
PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF
THESE SECURITIES THAT SUCH REGISTRATION OR COMPLIANCE IS NOT
REQUIRED AS TO SUCH SALE, OFFER OR DISTRIBUTION".
(b) The certificate shall also bear any other legends required by
Delaware law or applicable blue sky or state securities laws.
Except as provided in the Registration Rights Agreement, ABS need not register a
transfer of any of the Shares and may also instruct its transfer agent not to
register a transfer of any Shares, unless the conditions specified in the
foregoing legends are satisfied to the extent applicable.
3.9 ACCREDITED INVESTOR. Abbott is an "accredited investor" within
the meaning of Securities and Exchange Commission Rule 501 of Regulation D, as
now in effect.
4. CONDITIONS OF ABBOTT'S OBLIGATIONS AT SHARE CLOSING. Abbott's
obligations to purchase the Shares at the Share Closing are subject to
fulfillment, on or prior to the Share Closing with respect to the Shares, of
each of the following conditions unless waived by Abbott.
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of ABS contained in SECTION 2 shall be true and correct when made and
at the Share Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Share Closing.
4.2 PERFORMANCE. ABS shall have performed and complied with all
agreements, obligations, and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Share Closing.
4.3 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and effective as of
the Share Closing.
4.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated at the Share Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Abbott, and it shall have received all such counterpart original
and certified or other copies of such documents as it may reasonably request.
6
7
4.5 ALLIANCE AGREEMENTS. The parties shall have entered into each of
the Alliance Agreements and the Alliance Agreements remain in full force and
effect.
4.6 OPINION OF COUNSEL TO ABS. Abbott shall have received from
Brown, Rudnick, Freed & Gesmer, counsel to ABS, an opinion addressed to it,
dated as of the date of the Share Closing and in substantially the form of
EXHIBIT 4.6.
4.7 NO ORDER PENDING. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement or the
Alliance Agreements.
4.8 COMPLIANCE CERTIFICATE. ABS shall have delivered to Abbott a
certificate, in substantially the form of EXHIBIT 4.8, executed on behalf of ABS
by the Chief Executive Officer of ABS, dated as of the date of the Share Closing
and certifying to the fulfillment of the conditions specified in SECTION 4.1.
5. CONDITIONS OF ABS'S OBLIGATIONS AT SHARE CLOSING. ABS's obligations to
issue and sell the Shares at the Share Closing are subject to fulfillment, on or
prior to the Share Closing with respect to the Shares, of each of the following
conditions unless waived by ABS.
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Abbott contained in SECTION 3 shall be true and correct when made
and at the Share Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Share Closing.
5.2 PAYMENT OF PURCHASE PRICE. Abbott shall have delivered the
purchase price for the Shares.
5.3 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and effective as of
the Share Closing for those shares.
5.4 ALLIANCE AGREEMENTS. The parties shall have entered into each of
the Alliance Agreements and the Alliance Agreements remain in full force and
effect.
5.5 OPINION OF COUNSEL TO ABBOTT. ABS shall have received from Brian
J. Smith, Divisional Vice President, Domestic Legal Operations and Assistant
Secretary, an opinion addressed to it, dated as of the date of the Share Closing
and certifying, in substantially the form of EXHIBIT 5.5.
5.6 NO ORDER PENDING. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement or the
Alliance Agreements.
5.7 COMPLIANCE CERTIFICATE. Abbott shall have delivered to ABS a
certificate, in substantially the form of EXHIBIT 5.7, executed on behalf of
Abbott by an officer of Abbott, dated as of the date of the Share Closing and
certifying to the fulfillment of the conditions specified in SECTION 5.1.
6. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of ABS and Abbott contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the Share Closing
and shall in no way be affected by any investigation of the subject matter
thereof made by or on behalf of Abbott or ABS.
6.2 ENTIRE AGREEMENT; CONTROLLING DOCUMENT. This Agreement and the
Alliance Agreements constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede
7
8
any and all prior negotiations, correspondence and understandings between the
parties with respect to the subject matter hereof, whether oral or in writing.
6.3 ASSIGNMENT: SUCCESSORS AND ASSIGNS. No provision of this
Agreement may be assigned without the prior written consent of the other party
hereto. Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any of the
Shares). Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 DELAY AND WAIVER. No delay on the part of either party in
exercising any right under this Agreement shall operate as a waiver of such
right. The waiver by either party of any other term or condition of this
Agreement shall not be construed as a waiver of a subsequent breach or failure
of the same term or condition or a waiver of any other term or condition
contained in this Agreement.
6.6 ASSIGNMENT: SUCCESSORS AND ASSIGNS. No provision of this
Agreement may be assigned without the prior written consent of the other party
hereto. Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.7 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware without regard to conflict of law
principles.
6.8 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by personal delivery,
facsimile, overnight courier or mailed by certified or registered mail, postage
prepaid, return receipt requested, to the facsimile number or address as
follows:
ABS: American Biogenetic Sciences, Inc.
1375 Akron Street
Copiague, NY 11726
Telephone: (516) 789-2600
Facsimile: (516) 789-1661
Attention: Chairman
with a copy (which will not constitute notice) to:
Brown, Rudnick, Freed & Gesmer
One Financial Square
Boston, MA 02111
Telephone: (617) 856-8327
Facsimile: (617) 856-8201
Attention: Mark A. Hofer, Esq.
Abbott: Abbott Laboratories
100 Abbott Park Road
Dept. 309, Bldg. AP30
Abbott Park, IL 60064-3537
8
9
Telephone: (847) 938-6863
Facsimile: (847) 938-5383
Attention: Senior Vice President, Pharmaceutical
Operations
with a copy (which will not constitute notice) to:
Abbott Laboratories
100 Abbott Park Road
Dept. 364, Bldg. AP6D
Abbott Park, Illinois 60064-6049
Telephone: (847) 937 - 8906
Facsimile: (847) 938 - 6277
Attention: Senior Vice President, Secretary and
General Counsel
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this SECTION 6.8. Such notices or other
communications shall be deemed delivered upon receipt, in the case of overnight
delivery, personal delivery or facsimile transmission (as evidenced by the
confirmation thereof), or 2 days after deposit in the mails (as determined by
reference to the postmark).
6.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.10 EXPENSES. Irrespective of whether either of the Share Closing
is effected, each party shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement.
6.11 ALTERNATIVE DISPUTE RESOLUTION. The parties shall attempt to
resolve amicably disputes arising between them regarding the validity,
construction, enforceability or performance of the terms of this Agreement and
any differences or disputes in the interpretation of the rights, obligations,
liabilities and/or remedies under this Agreement, that have been identified in a
written notice from one party to the other, by good faith settlement discussions
between the Senior Vice President, Pharmaceutical Operations of Abbott and the
Chief Executive Officer of ABS. The parties agree that any dispute that arises
in connection with the Agreement, that cannot be resolved amicably by such
representatives within thirty (30) days after the receipt of such written
notice, shall be resolved by binding Alternative Dispute Resolution in the
manner described in EXHIBIT C to the License Agreement.
6.12 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of ABS and Abbott. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities and ABS.
6.13 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.14 FURTHER ASSURANCES. ABS and Abbott shall do and perform or
cause to be performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments or documents as the
other party may reasonably request from time to time in order to carry out the
intent and purposes of this Agreement and the consummation of the transactions
contemplated by the Agreement. Neither ABS nor Abbott shall voluntarily
undertake any course of action inconsistent with the satisfaction of the
requirements applicable to them as set forth in this Agreement, and each shall
promptly do all such acts and take all such measures as may be appropriate to
enable them to perform as early as practicable their obligations under this
Agreement.
9
10
6.15 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall create
or be deemed to create any rights in any person or entity not a party to his
Agreement.
6.16 MUTUAL DRAFTING. This Agreement is the joint product of ABS and
Abbott and each provision of the Agreement has been subject to consultation,
negotiation and agreement of ABS and Abbott and their respective legal counsel
and advisers and any rule of construction that a document shall be interpreted
or construed against the drafting party shall not apply.
6.17 FINDER'S FEE.
(a) Each party represents that it neither is nor will be obligated
for any finder's fee or commission in connection with this transaction. Abbott
agrees to indemnify and hold harmless ABS from any liability for any commission
or compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which such Abbott or
any of its officers, partners, employees or representatives is responsible.
(b) ABS agrees to indemnify and hold harmless Abbott from any
liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which ABS or any of its officers, employees or representatives is
responsible.
10
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: _________________________________
Alfred J. Roach
Chairman
ABBOTT LABORATORIES:
By:: _________________________________
Title: _______________________________
11