EXHIBIT 2
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 Xxxxxx 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 Xxxxxx and Xxxxxx
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, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, 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 Xxxxxx'x 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: 041-0000000
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:
2.1 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 "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 Xxxxxx 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.
2.7 OFFERING. Subject in part to the truth and accuracy of
Xxxxxx'x 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
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 XXXXXX. Xxxxxx
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 Xxxxxx'x representation to ABS, which by
Xxxxxx'x execution of this Agreement Abbott hereby confirms, that the shares
to be received by Abbott will be acquired for investment for Xxxxxx'x 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.
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 XXXXXX'X OBLIGATIONS AT SHARE CLOSING. Xxxxxx'x
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.
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 Xxxxx X. Xxxxx, 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 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.
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chairman
with a copy (which will not constitute notice) to:
Brown, Rudnick, Freed & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxxx: Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxx. 000, Xxxx. XX00
Xxxxxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President,
Pharmaceutical Operations
with a copy (which will not constitute notice) to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxx. 364, Bldg. AP6D
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
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, enforceablity 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.
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
By: ____________________
Xxxxxx X. Xxxxx
Chairman
XXXXXX LABORATORIES:
By: __________________
Title: __________________
EXHIBIT - SECTION 2
SCHEDULE OF EXCEPTIONS
1. SECTION 2.1(e) - EMPLOYEE BENEFIT PLANS
2. SECTION 2.2(b) - LOANS / SUBSIDIARIES AND AFFILIATES
NAME PERCENTAGE OWNERSHIP AMOUNT OF LOAN
3. SECTION 2.3(e) - OPTIONS, WARRANTS, CONVERSION PRIVILEGES OR OTHER
CONTRACTUAL RIGHTS
