EXHIBIT 99
FORM OF PURCHASE AND INVESTMENT AGREEMENT
October 27, 1998
American Biogenetic Sciences, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Gentlemen:
The following will constitute our agreement between American Biogenetic
Sciences, Inc. ("Company") and the undersigned (the "Purchaser").
1. Purchaser purchases from the Company _______________ shares of the
Company's Class A Common Stock, $.001 par value, (the "Shares") at a price of
$0.25 per share, for a total purchase price of
$---------------.
2. The company shall deliver to Purchaser a certificate registered in
the name of Purchaser, representing the Share within five (5) business days
after Purchaser shall have paid to the Company the full purchase price of the
Shares of Common Stock in the above amount payable to the Company.
3. To induce the Company to issue the Shares, Purchaser represents that
(a) Purchaser is acquiring the Shares for investment only and not with a view to
the distribution of all or any part thereof, as the phrases "investment only"
and "distribution" have meaning under the Securities Act of 1933, as amended
(the "Act"); and (b) Purchaser has been informed that the Shares have not been
registered under the Act; that the Shares must be held unless they are
subsequently registered under the Act or an exemption from such registration is
available; that any sales of the Shares made in reliance upon Rule 144 of the
Securities and Exchange Commission (the "Commission") can be made only in
amounts in accordance with the terms and conditions of that rule; that in case
the rule is not applicable to a disposition of the Shares, compliance with
Regulation A of the Commission of some other disclosure exemption will be
required; and that the Company is under no obligation to register the Shares
under the Act.
4. In connection with the purchase of the Shares, the Purchaser
acknowledges that the Company will be relying on the information and on the
representations set forth herein, and represents, warrants, agrees and
acknowledges that:
(a) The Purchaser is an Accredited Investor under rule 501(a) of
Regulation under the Securities Act of 1933, as amended.
(b) the Purchaser has had substantial experience in previous
private and public purchases of securities and has sufficient
knowledge and experience in financial and business matters so
that the Purchaser is able to evaluate, alone, the merits and
risks of purchasing the Shares;
(c) The Purchaser does not require the funds being used to
purchase the shares for liquidity needs, has adequate means to
provide for the Purchaser's personal needs, possesses the
ability to bear the economic risk of holding the Shares
indefinitely, and can afford a complete loss on the purchase
of the Shares; and
(d) Purchaser has received a copy of the company's Form 10-K for
the year ended December 31, 1997, its Quarterly Reports of
Form 10-Q, for the periods ending March 31, 1998 and June 30,
1998, its proxy statement for the 1998 Annual Meeting of
Stockholders and all reports on Form 8-K filed since January
1, 1998 (collectively "SEC Reports"), has had an opportunity
to obtain such additional information necessary to verify the
accuracy of and to appropriately supplement the information
set forth in such SEC Reports as Purchaser has requested
through discussions with officers and directors of the
Company. The Purchaser does not require any other documents or
information prior to completing the Purchase of the Shares.
5. Purchaser agrees that the certificates evidencing the Shares may
bear the following legend restricting their transferability under the Act:
LEGEND
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("ACT"). NO SALE, OFFER TO SELL OR TRANSFER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE SHALL BE MADE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT, OR AN
OPINION OF COUNSEL TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
UNDER THE ACT.
6. Purchaser agrees to give the Company written notice before effecting
any proposed disposition of the Shares, describing therein the manner of
proposed disposition and such other information as the Company or its Counsel
may request. Such notice shall not contain any untrue statement nor omit any
statement necessary to make the statements made not false or misleading.
7. This Agreement may not be changed unless in writing and signed by
both parties and supersedes all prior agreements between the parties with
respect to its subject matter. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York. A signed
photocopy or facsimile copy of the Agreement is valid and binding as if it were
an original.
8. The Company shall register under a registration statement
("Registration Statement") filed pursuant to the Act and such state "Blue Sky"
laws of those states as are reasonably selected by the Purchaser, the Shares
(hereinafter, the "Registrable Securities"). The Company agrees to file the
Registration Statement on or before 60 days of the date hereof. The Company
agrees to use its best efforts to have the Registration Statement declared
effective within six months of the date hereof. The Company shall keep the
Registration Statement effective and current until all the securities registered
thereunder are sold or until all such securities may be sold by the Purchasers
thereof under Rule 144 without volume limitations.
The Company shall bear all the expenses and pay all the fees
it incurs in connection with the preparation, filing and modification or
amendment of the Registration Statement with the Securities and Exchange
Commission, selected states and the NASD, including but not limited to all
registration and filing fees, printing expenses, fees and disbursements of
counsel and the fees and disbursements of one counsel, selected by a majority of
the Purchasers, to review the Registration Statement and assist in the clearance
of the registration with the NASD. Moreover, if the Company willfully fails to
comply with the provisions of this Section 8, the Company shall, in addition to
any other equitable or other relief available to the Purchaser, be liable for
any and all incidental, special and consequential damages and damages due to
loss of profits sustained by the Purchaser.
To the extent permitted by law, the Company will indemnify and
hold harmless each holder of the Registrable Securities ("Holder"), the officers
and directors of each Holder and each person, if any, who controls such Holder
within the meaning of the Act or Securities Exchange Act of 1934, as amended
("Exchange Act") against any losses, claims, damages, or liabilities to which
they may become subject under the Act, the Exchange Act or any state securities
law or regulation (including all reasonable attorneys' fees and other expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever incurred by the indemnified party in any action or proceeding between
the indemnitor and indemnified party or between the indemnified party and any
third party or otherwise) to which any of them may become subject under the Act,
the Exchange Act or any other statute or common law or otherwise under the laws
of foreign countries, arising from such registration statement or based upon any
untrue statement or alleged untrue statement of a material fact contained in (i)
any preliminary prospectus, the registration statement or prospectus (as from
time to time each may be amended and supplemented); (ii) in any post-effective
amendment or amendments or any new registration statement and prospectus in
which it included the Registrable Securities; or (iii) any application or other
document or written communication (collectively called "application") executed
by the Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Registrable Securities under the securities
laws thereof or filed with the Securities and Exchange Commission, any state
securities commission or agency, Nasdaq or any securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such statement
or omission is made in reliance upon, and in strict conformity with, written
information furnished to the Company with respect to such Holder expressly for
use in any preliminary prospectus, such registration statement or prospectus, or
any amendment or supplement thereof, or in any application, as the case may be.
The Company agrees promptly to notify the Holder of the Registrable Securities
of the commencement of any litigation or proceedings against the Company or any
of its officers, directors or controlling persons in connection with the issue
and sale or resale of the Registrable Securities or in connection with any such
registration statement or prospectus.
9. The Company represent and warrants: (a) that the SEC Reports taken
as a whole, do not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (b) that the Shares have been duly and validly authorized and,
upon payment therefore in accordance with the terms of this Agreement, will be
fully paid and nonassessable; and (c) this Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid and binding
obligation of the Company enforceable in accordance with its terms.
10. The Company covenants and agrees that (a) the proceeds of the sale
of the Shares will be used solely for the purpose of redeeming the Company's
outstanding convertible debentures ("Debentures") within 30 days of the date
hereof; and (b) it shall take such action as is necessary to have the Shares
approved for listing on the Nasdaq National Market System promptly after the
date hereof. If the Company does not redeem the Debentures within such 30 day
period, the Purchaser shall have the right to rescind the purchase within 60
days thereafter and the Company shall be required to purchase the Shares from
each rescinding Purchaser.
This letter serves as an offer by the undersigned to purchase the
Shares and is subject to acceptance by the Company.
American Biogenetic Sciences, Inc. Purchaser
By: ______________________ _____________________________
Name: Xxxxx X. Xxxxxxx Name: Signature
Title: Vice President Finance Name Printed: _______________
Address: _________________
_________________
Soc. Sec. No.: ______________
