-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G1hFLAH7wOJUz2GPa1pIA8SPF9FqIKw5VClYELV73JZXRd+Ufhl1K98zRV9cS8EH 2qjkI8Gbxnk8N6dC0zhdxg== 0000910680-97-000150.txt : 19970501 0000910680-97-000150.hdr.sgml : 19970501 ACCESSION NUMBER: 0000910680-97-000150 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19961231 FILED AS OF DATE: 19970430 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN BIOGENETIC SCIENCES INC CENTRAL INDEX KEY: 0000856984 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 112655906 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-19041 FILM NUMBER: 97591222 BUSINESS ADDRESS: STREET 1: 1375 AKRON STREET CITY: COPIAGUE STATE: NY ZIP: 11726 BUSINESS PHONE: (516)789-2600 10-K/A 1 AMENDMENT TO ANNUAL REPORT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A (Mark One) |X| Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (No Fee Required) For the Fiscal year ended December 31, 1996. or |_| Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (No Fee Required) for the transition period from _______________to_________________ Commission File Number: 0-19041 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 Identification No.) incorporation or organization) 1375 Akron Street, Copiague, New York 11726 - -------------------------------------- ------------------------------------ (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (516) 789-2600 Securities registered pursuant to Section 12(b) of the Act: None Securities registered pursuant to Section 12(g)of the Act: Class A Common Stock, $.001 par value ------------------------------------- (Title of Class) Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes X No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] As of the close of business on March 14, 1997, there were outstanding 17,441,654 shares of the registrant's Class A Common Stock and 1,475,500 shares of its Class B Common Stock. The approximate aggregate market value (based upon the closing price on The Nasdaq Stock Market's National Market) of shares held by non-affiliates of the registrant as of March 14, 1997 was $70,094,000. DOCUMENTS INCORPORATED BY REFERENCE None PART III -------- Item 10. Directors and Executive Officers of the Registrant - -------- -------------------------------------------------- The directors and executive officers of the Company are as follows: Name Position - ---- -------- Alfred J. Roach Chairman of the Board, Chief Executive Officer and Director Paul E. Gargan President, Chief Scientific Officer and Director Ellena M. Byrne Executive Vice President and Director Timothy J. Roach Treasurer, Secretary and Director Stephen H. Ip, Ph.D. Executive Vice President and Chief Operating Officer Joseph P. Laurino, Ph.D. Senior Vice President-Research and Development James M. McLinden, Ph.D. Vice President-Molecular Biology Josef C. Schoell Vice President-Finance and Chief Financial Officer Gustav Victor Rudolf Born, Director M.D. Joseph C. Hogan, Ph.D. Director William G. Sharwell Director ALFRED J. ROACH, 81, has been Chairman of the Board of Directors of the Company since its organization in September 1983 and, from September 1983 until October 1988, also served as President of the Company. Mr. Roach has served as Chairman of the Board and/or President of TII Industries, Inc. ("TII"), a corporation engaged in manufacturing and marketing telecommunications products, and its predecessor since its founding in 1964. Mr. Roach devotes a majority of his time to the business of the Company. PAUL E. GARGAN, Ph.D., 40, has served the Company in various capacities since 1984. He has been President and a director of the Company since January 1994 and Chief Scientific Officer since June 1996, and was Senior Vice President - - Director of Research and Development of the Company from March 1993 until January 1994. From November 1991 until March 1993, Dr. Gargan served as Vice President - Cardiovascular Products Development and, from 1984 until November 1991, Dr. Gargan served as Associate Director of Cardiovascular Research. ELLENA M. BYRNE, 46, has been a director and Executive Vice President of the Company since March 1995. From January 1986 until December 1991, Ms. Byrne served as Vice -2- President-Administration of the Company and, from December 1991 until March 1995, Ms. Byrne served in various capacities with the Company, including Director of Operations for Europe and Asia. TIMOTHY J. ROACH, 50, has been Treasurer, Secretary and a director of the Company since September 1983. He has also been affiliated with TII since 1974, serving as its President since July 1980, Chief Operating Officer since May 1987, Vice Chairman of the Board since October 1993, Chief Executive Officer since January 1995 and a director since January 1978. Mr. Roach devotes such time as is necessary to the business of the Company to discharge his duties as Treasurer, Secretary and a director. Timothy J. Roach is the son of Alfred J. Roach. STEPHEN H. IP, Ph.D., 50, has been Executive Vice President and Chief Operating Officer of the Company since January 1997. Prior to joining the Company, Dr. Ip served as Vice President, Corporate and Business Development at Paracelsian, Inc., a public company engaged in clinical and pre-clinical development of drugs and supplements for the treatment of AIDS and cancer, from 1996. From 1990 through 1995, Dr. Ip served as President, Chief Operating Officer and director of CytoMed, Inc., a biopharmaceutical company engaged in the research and development of synthetic chemical drugs and recombinant proteins for the treatment of acute and chronic diseases. From 1984 through 1989 he was Vice President and a scientific co-founder of T Cell Sciences, Inc., a biotechnology company. JOSEPH P. LAURINO, Ph.D., 39, has been Senior Vice President-Research and Development of the Company since February 1997. Prior to joining the Company, Dr. Laurino served as Director of Clinical Chemistry and Assistant Professor of Pathology in the Department of Pathology and Laboratory Medicine at Memorial Hospital of Rhode Island, Brown University, from 1990 to February 1996. Dr. Laurino was also Senior Scientist for Roche Diagnostic Systems, Inc., a multi-national diagnostic company, from 1988 to 1990, and a Research and Development Scientist at Technicon Instruments Corporation (now Bayer Corporation), a multi-national diagnostic company, from 1987 to 1988. JAMES H. McLINDEN, Ph.D., 46, has been Vice President - Molecular Biology of the Company since November 1991. Prior thereto (and since joining the Company in January 1987), Dr. McLinden served as Director of Molecular Biology of the Company. JOSEF C. SCHOELL, 47, joined the Company in July 1992 as its Controller and was elected Vice President-Finance and Chief Financial Officer of the Company in July 1995. For more than four years prior to joining the Company, Mr. Schoell served as a private consultant specializing in computerized accounting systems and networks. Prior thereto, Mr. Schoell served in various capacities, most recently Assistant Controller, with J.P. Stevens & Co., Inc., a textile manufacturing company. Mr. Schoell is a Certified Public Accountant in the State of New York. GUSTAV VICTOR RUDOLF BORN, M.D., D.Phil., F.R.C.P., F.R.S., 75, has been a director of the Company since January 1997. Since 1988, Dr. Born has been Research Director of The William Harvey Research Institute at St. Bartholomew's Hospital Medical College, London, England and Emeritus Professor of Pharmacology in the University of London. Among Dr. Born's distinctions, appointments and activities are: Fellowship and Royal Medal of the Royal Society; and Foundation President of the British Society for Thrombosis and Haemostasis. -3- JOSEPH C. HOGAN, Ph.D., 74, has been a director of the Company since December 1983. Dr. Hogan served as Dean of the College of Engineering of the University of Notre Dame from 1967 to 1981, following which he performed various services for the University of Notre Dame until 1985, where he remains Dean Emeritus. From 1985 until his retirement in 1987, Dr. Hogan was a Director of Engineering Research and Resource Development at Georgia Tech. Dr. Hogan is a director of TII. WILLIAM G. SHARWELL, 76, has been a director of the Company since October 1986. Mr. Sharwell was President of Pace University in New York from 1984 until his retirement in 1990. He was Senior Vice President of American Telephone & Telegraph Company between 1976 and 1984, and previously served as executive Vice President of Operations of New York Telephone Company. Mr. Sharwell serves as an independent general partner of Equitable Capital Partners, L.P. and Equitable Capital Partners (Retirement Fund), L.P., registered investment companies under the Investment Company Act of 1940. He also serves on the Board of Directors of TII and US Life Corporation. Directors serve until the next Annual Meeting of the Shareholders of the Company following their election and until their respective successors are elected and qualified. Each executive officer is scheduled to hold office until the 1997 Annual Meeting of Directors, which is scheduled to be held after the 1997 Annual Meeting of Shareholders. Any executive officer may be removed by the Board of Directors either with or without cause. There are no understandings between any director or executive officer and any other person pursuant to which any director or executive officer was elected as such. Ms. Byrne and Messrs. Gargan, Ip, Laurino and McLinden are parties to employment agreements with the Company. Section 16(a) Beneficial Ownership Reporting Compliance Section 16(a) of the Securities Exchange Act requires the Company's executive officers and directors, and persons who beneficially own more than 10% of the Company's common stock, to file initial reports of ownership, and reports of changes of ownership, of the Company's equity securities with the Securities and Exchange Commission and furnish copies of those reports to the Company. Based solely on a review of copies of the reports furnished to the Company, or written representation that no reports were required, the Company believes that all reports required to be filed by such persons with respect to the Company's year ended December 31, 1996 were timely filed, except that Ms. Byrne failed to timely file one report covering the receipt of a gift of Common Stock by her minor child. -4- Item 11. Executive Compensation - -------- ---------------------- Summary Compensation Table The following table sets forth information concerning the compensation for services rendered in all capacities to the Company and its subsidiaries for the year ended December 31, 1996, 1995 and 1994 by Alfred J. Roach, the Company's chief executive officer during all of 1996, and Dr. Paul Gargan, the Company's President, the only other executive officers of the Company who received cash compensation in excess of $100,000 for the year ended December 31, 1996: Annual Long-term Compensation Compensation Name and ------------ ------------ Principal Position Year Salary Options ------------------ ---- ------ ------- Alfred J. Roach, Chairman 1996 $250,000 ---- of the Board and Chief 1995 $250,000 135,000 Executive Officer 1994 $250,000 ---- Paul E. Gargan, President 1996 $162,000 ---- 1995 $150,000 31,500 1994 $148,000 50,000 Employment Agreements The Company is a party to an employment agreement dated May 10, 1996 with Dr. Paul E. Gargan, President of the Company, which provides for a term extending, subject to certain terms and conditions, until June 30, 1998 and an annual salary of $175,000. Option Exercises in Last Fiscal Year and Year-End Values No options were granted during 1996 to either of the executive officers named in the Summary Compensation Table. The following table contains information concerning options exercised during 1996, and the number of shares of Class A Common Stock underlying unexercised options held at December 31, 1996, by the executive officers named in the Summary Compensation Table: -5-
Value of Number of Unexercised Unexercised In-the-Money Options Held at Options Held at Fiscal Year-End (#) Fiscal Year-End ($) Shares Acquired Value (Exercisable/ (Exercisable/ Name on Exercise (#) Realized($)(1) Unexercisable) Unexercisable)(2) ---- --------------- -------------- --------------- ------------------- Alfred J. Roach 300,000 $127,500 1,126,250/33,750 $216,422/$72,141 Paul E. Gargan (3) ---- ---- 143,625/32,875 $ 85,570/$18,211
- -------------- (1) The closing price of the Company's Class A Common Stock on The Nasdaq Stock Market's National Market on the date of exercise of the option less the exercise price of the option. (2) The closing price of the Company's Class A Common Stock on The Nasdaq Stock Market's National Market on December 31, 1996 less the exercise price of each option. (3) Excludes options held by Dr. Gargan's wife. Remuneration of Directors Directors receive no compensation for service on the Board. Each director serving on the Audit Committee receives a fee of $600 for each meeting of that committee attended in person and not telephonically. All directors are reimbursed for travel expenses incurred in attending Board and committee meetings. The Company's 1993 Non-Employee Director Stock Option Plan, approved by stockholders at the Company's 1993 Annual Meeting of Stockholders, provides for the automatic grant of an option to purchase 10,000 shares of the Class A Common Stock to each non-employee director in office immediately after each annual meeting of stockholders. All options are exercisable at the fair market value of the Class A Common Stock on the date of grant, have a term of five years and are exercisable, on a cumulative basis, at the rate of one quarter of the number of shares subject to the option in each year commencing one year after the date of the grant. -6- Item 12. Security Holdings of Certain Stockholders And Management - -------- -------------------------------------------------------- The following table sets forth information at April 21, 1997 with respect to the beneficial ownership of the Company's Class A Common Stock and Class B Common Stock by (i) each person known by the Company to beneficially own more than 5% of the outstanding shares of Class A Common Stock and/or Class B Common Stock, (ii) each director of the Company, (iii) each executive officer named in the Summary Compensation Table and (iv) all executive officers and directors of the Company as a group. Each share of Class A Common Stock is entitled to one vote per share while each share of Class B Common Stock is entitled to ten votes per share. The Company understands that, except as noted below, each beneficial owner has sole voting and investment power with respect to all shares attributable to such owner.
Class A Common Stock(1) Class B Common Stock ----------------------- -------------------- Percent Percent Beneficial Owner No. Shares of Class No. Shares of Class - ----------------- ------------- ------- ---------- -------- Alfred J. Roach (2) 3,284,250 (2) 15.9% 1,475,500 100% Paul E. Gargan 191,000 (3) 1.1% --- --- Ellena M. Byrne 185,000 (3)(4) 1.0% --- --- Timothy J. Roach 570,000 (3) 3.1% --- --- Gustav V. R. Born 5,000 (3) * --- --- Joseph C. Hogan 40,000 (3) * --- --- William G. Sharwell 45,000 (3) * --- --- All executive officers and directors as a group (9 persons, including the foregoing) 4,516,750 (5) 20.8% 1,475,500 100%
- ---------------------------- (1) Asterisk indicates less than one percent. Shares of Class A Common Stock issuable upon the conversion of Class B Common Stock into Class A Common Stock and upon the exercise of options that were exercisable on, or become exercisable within 60 days after, April 21, 1997 are considered owned by the holder thereof and outstanding for purposes of computing the percentage of outstanding Class A Common Stock deemed beneficially owned by such person, but (except for the computation of beneficial ownership by all executive officers and directors as a group) are not considered outstanding for purposes of computing the percentage of outstanding Class A Common Stock owned by any other person. (2) The address of Mr. Roach is Route 2 - Kennedy Avenue, Guaynabo, Puerto Rico 00657. Beneficial ownership of Class A Common Stock includes 1,475,000 shares of Class A Common Stock issuable upon the conversion of the same number of shares of Class B Common Stock on a share for share basis and 1,160,000 shares of Class A Common Stock subject to outstanding options. -7- (3) Includes shares of Class A Common Stock subject to options as follows: Dr. Paul E. Gargan, 171,000 (including 7,000 subject to options held by his wife); Ellena M. Byrne, 150,000 (including 2,500 subject to options held by her husband); Timothy J. Roach, 570,000; Gustav V.R. Born, 5,000 shares; Joseph C. Hogan, 30,000; and William G. Sharwell, 35,000. (4) Includes 10,000 shares owned by Ms. Byrne's son. The inclusion of these shares should not be construed as an admission that Ms. Byrne is the beneficial owner of these shares. (5) Includes 1,475,500 shares of Class A Common Stock issuable upon the conversion of the same number of shares of Class B Common Stock and 2,298,500 shares of Class A Common Stock subject to outstanding options. Item 13. Certain Relationships and Related Transactions - -------- ---------------------------------------------- On January 17, 1997, Mr. Alfred J. Roach purchased 100,000 shares of the Company's Class B Common Stock for $343,750 or $3.4375 per share, the closing bid price of the Company's Class A Common Stock (into which the Company's Class B Common Stock is convertible on a share-for-share basis) on The Nasdaq Stock Market's National Market on that date. Item 14. Exhibits, Financial Statements and Reports on Form 8-K - -------- ------------------------------------------------------ (a) 1. and 2. Financial Statements and Financial Statement Schedules The following consolidated financial statements of the Company are annexed hereto immediately following the signature page of this Report. Financial Statements Page -------------------- ---- Report on Independent Public Accountants F-2 Consolidated Balance Sheets F-3 Consolidated Statements of Operations F-4 Consolidated Statements of Cash Flows F-5 Consolidated Statements of Stockholders' Equity F-6 - F-7 Notes to Consolidated Financial Statements F-8 - F-22 Information required by schedules called for under Regulation S-X is either not applicable or the information required therein is included in the consolidated financial statements or notes thereto. -8- 3. Exhibits Exhibit No. Description - ----------- ----------- 3.1 Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of Delaware on July 30, 1996. Incorporated herein by reference to Exhibit 4.01 to the Company's Registration Statement on Form S-8, File No. 333-09473. 3.2 Amended and Restated By-Laws of the Company. Incorporated herein by reference to Exhibit 4.02 to the Company's Registration Statement on Form S-8, File No. 333- 09473. 4.1(a) Form of the Company's 8% Convertible Debentures due October 13, 1998. Incorporated herein by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated October 12, 1995 (date of earliest event reported), File No. 0-19041. 4.1(b) Form of the Company's 7% Convertible Debentures due September 30, 1998. Incorporated herein by reference to Exhibit 4.01 to the Company's Current Report on Form 8-K dated September 30, 1996 (date of earliest event reported), File No. 0- 19041. 10.1(a)+* Employment Agreement dated May 10, 1996 between the Company and Dr. Paul E. Gargan. 10.1(b)+** Employment Agreement dated October 1, 1996 between the Company and Ellena M. Byrne. 10.1(c)+** Employment Agreement dated December 16, 1996 between the Company and Stephen H. Ip, Ph.D. 10.1(d)+** Employment Agreement dated February 3, 1997 between the Company and Joseph P. Laurino, Ph.D. 10.2(a)+ The Company's Stock Option Plan, as amended. Incorporated herein by reference to Exhibit 28.1 to the Company's Registration Statement on Form S-8, File No. 33- 51240. 10.2(b)+ The Company's 1993 Non-Employee Director Stock Option Plan. Incorporated herein by reference to Exhibit 99.01 to the Company's Registration Statement on Form S-8, File No. 33-65416. 10.2(c)+ The Company's 1996 Stock Option Plan. Incorporated herein by reference to Exhibit A to the Company's Proxy Statement dated April 29, 1996 used in connection with the Company's 1996 Annual Meeting of Stockholders, File No. 0-19041. 10.3 Exclusive License Agreement dated January 24, 1992 between the Company and Yamanouchi Pharmaceutical Co., Ltd. Incorporated herein by reference to Exhibit -9- 10.29 to the Company's Current Report on Form 8-K dated January 24, 1992 (date of earliest event reported), File No. 0-19041. 10.4 Warrant dated October 25, 1995 issued to Swartz Investments, Inc. Incorporated herein by reference to Exhibit 10.13 to the Company's Current Report on Form 8-K dated October 12, 1995 (date of earliest event reported), File No. 0-19041. 21* List of Subsidiaries 24* Consent of Independent Public Accountants - ------------------------------------------ * Filed with the initial filing of this Report and incorporated herein by reference. ** Filed herewith. All other exhibits are incorporated by reference to the document following the description thereof. + Management contract or compensatory plan. (b) Reports on Form 8-K The only Report on Form 8-K filed during the fourth quarter of the year ended December 31, 1996 was dated September 30, 1996 (date of earliest event reported), reporting Item 5. Other Events. -10- SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. AMERICAN BIOGENETIC SCIENCES, INC. Dated: April 30, 1997 By: /s/ Josef C. Schoell ------------------------- Josef C. Schoell Vice President, Finance (Principal Financial and Accounting Officer) -11- EXHIBIT INDEX Exhibit No. Description - ----------- ----------- 3.1 Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of Delaware on July 30, 1996. Incorporated herein by reference to Exhibit 4.01 to the Company's Registration Statement on Form S-8, File No. 333-09473. 3.2 Amended and Restated By-Laws of the Company. Incorporated herein by reference to Exhibit 4.02 to the Company's Registration Statement on Form S-8, File No. 333- 09473. 4.1(a) Form of the Company's 8% Convertible Debentures due October 13, 1998. Incorporated herein by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated October 12, 1995 (date of earliest event reported), File No. 0-19041. 4.1(b) Form of the Company's 7% Convertible Debentures due September 30, 1998. Incorporated herein by reference to Exhibit 4.01 to the Company's Current Report on Form 8-K dated September 30, 1996 (date of earliest event reported), File No. 0- 19041. 10.1(a)+* Employment Agreement dated May 10, 1996 between the Company and Dr. Paul E. Gargan. 10.1(b)+** Employment Agreement dated October 1, 1996 between the Company and Ellena M. Byrne. 10.1(c)+** Employment Agreement dated December 16, 1996 between the Company and Stephen H. Ip, Ph.D. 10.1(d)+** Employment Agreement dated February 3, 1997 between the Company and Joseph P. Laurino, Ph.D. 10.2(a)+ The Company's Stock Option Plan, as amended. Incorporated herein by reference to Exhibit 28.1 to the Company's Registration Statement on Form S-8, File No. 33- 51240. 10.2(b)+ The Company's 1993 Non-Employee Director Stock Option Plan. Incorporated herein by reference to Exhibit 99.01 to the Company's Registration Statement on Form S-8, File No. 33-65416. -12- 10.2(c)+ The Company's 1996 Stock Option Plan. Incorporated herein by reference to Exhibit A to the Company's Proxy Statement dated April 29, 1996 used in connection with the Company's 1996 Annual Meeting of Stockholders, File No. 0-19041. 10.3 Exclusive License Agreement dated January 24, 1992 between the Company and Yamanouchi Pharmaceutical Co., Ltd. Incorporated herein by reference to Exhibit 10.29 to the Company's Current Report on Form 8-K dated January 24, 1992 (date of earliest event reported), File No. 0-19041. 10.4 Warrant dated October 25, 1995 issued to Swartz Investments, Inc. Incorporated herein by reference to Exhibit 10.13 to the Company's Current Report on Form 8-K dated October 12, 1995 (date of earliest event reported), File No. 0-19041. 21* List of Subsidiaries 24* Consent of Independent Public Accountants - ------------------------------------------ * Filed with the initial filing of this Report and incorporated herein by reference. ** Filed herewith. All other exhibits are incorporated by reference to the document following the description thereof. + Management contract or compensatory plan. -13- EX-10 2 EX.10.1(B) EMPLOYMENT AGREEMENT - ELLENA M. BYRNE EXHIBIT 10.1(b) October 1, 1996 Ellena M. Byrne Number One Castledawson Sion Hill, Blackrock Co Dublin, Ireland Dear Ellena, This letter will confirm our offer of continued employment with American Biogenetic Sciences, Inc. ("Company") and supersedes all prior agreements, understandings and arrangements between Ellena M. Byrne ("Employee") and the Company relating to such employment. The parties agree as follows: 1. Retention of Services: The Company hereby retains the services of Employee, and Employee agrees to furnish such services in Dublin, Ireland, upon the terms and conditions hereinafter set forth. 2. Term: The term of this Agreement shall be for a period of five (5) years commencing October 1, 1996 and automatically terminating on September 30, 2001 subject to earlier termination as provided herein or unless extended by mutual consent of both parties in writing sixty (60) days prior to the end of the term of this Agreement or any extension thereof. Nothing herein shall require the Company or the Employee to agree to any specific term or condition or to any continuation of Employee's employment beyond September 30, 2001. 3. Employment: Subject to the terms and conditions and for the compensation hereinafter set forth, the Company employs the Employee for and during the term of this Agreement. Employee is hereby employed by the Company, her powers and duties of an executive nature shall be determined only by the Chairman of the Board or the Board of Directors or their duly authorized designee, from time to time; and the Employee does hereby accept such employment and agrees to use her best efforts and to devote all her normal business time, during the term of this Agreement, to the performance of her duties faithfully, diligently and to the best of her abilities upon the conditions hereinafter set forth. Employee shall report to the Chairman of the Board and Board of Directors (collectively hereinafter referred to as the "Board") of the Company. 4. Compensation: During the term of this Agreement, the Company agrees to pay Employee, and Employee agrees to accept, an annual gross compensation of Eighteen Thousand and Two Thousand Dollars (US$18,200.) and Fifty Thousand Irish Pounds (-50,000) per year, for all services rendered by Employee hereunder including being a Director of the Company which may be increased from time to time by the Compensation Committee of the Board of Directors. 1 5. Expenses: The Company shall reimburse Employee, not less often than monthly, for all reasonable and actual business expenses incurred by her in connection with her service to the Company, upon submission by Employee of appropriate vouchers and expense account reports. 6. Benefits: In addition to the compensation to be paid to Employee hereunder, the Company shall continue to provide medical insurance in accordance with the Company's Plan(s). The Employee shall be entitled to a four (4) weeks annual vacation. The Company shall maintain a life insurance policy for Employee's beneficiary for One Hundred Thousand Irish Pounds. 7. Employee Covenant: The "Employee's Confidentiality and Non-Competition Agreement" with the Company dated January 6, 1985 is in full force and effect, and is incorporated herein by reference as if fully set forth herein. 8. Return of Company Property: Employee agrees that following the termination of her employment for any reason, she shall return all property of the Company which is then in or thereafter comes into her possession, including, but not limited to, documents, contracts, agreements, plans, photographs, books, notes, electronically stored data and all copies of the foregoing as well as any other materials or equipment supplied by the Company to the Employee. 9. Termination: [A] Death: In the event of the Employee's death during the term of her employment, this Agreement shall automatically terminate on the date of death, and Employee's estate shall be entitled to payment of Employee's compensation until date of death. [B] Disability: In the event the Employee, by reason of physical or mental incapacity, shall be disabled for a period of at least two (2) consecutive months in any of the years of this Agreement or any extension hereof, the Company shall have the option at any time thereafter, to terminate Employee's employment and to terminate this Agreement; such termination to be effective ten (10) days after the Company gives written notice of such termination to the Employee, and all obligations of the Company hereunder shall cease upon the date of such termination. "Incapacity" as used herein shall mean the inability of the Employee to perform her normal duties as an executive officer of the Company. [C] Company's Rights To Terminate This Agreement: [a] The Company shall have the right, before the expiration of the term of this Agreement, to terminate this Agreement and to discharge Employee for cause (hereinafter "Cause"), and all compensation to Employee shall cease to accrue upon discharge of the Employee for Cause. For the purposes of this Agreement, the term "Cause" shall mean the Employee's (i) violation of the Company's written policy or specific written directions of the Chairman of the Board which directions are consistent with normally acceptable business practices or the failure to observe, or the failure or refusal to perform any obligations required to be performed in accordance with this Agreement. (ii) admission or conviction of a serious crime involving moral turpitude or (iii) if the Chairman of the Board determines that employee has committed a demonstrable act (or omission) of malfeasance seriously detrimental to this Company (which shall not include any exercise of business judgment in good faith). 2 [b] If the Company, elects to terminate Employee's employment for Cause, under Section 9[C][a](i), the Company shall first give Employee written notice and a period of thirty (30) days to cure such Cause, and if such Cause is not cured in said thirty (30) days, such termination shall be effective five (5) days after the Company gives written notice of such termination to the Employee. In the event of a termination of the Employee's employment for Cause in accordance with the provisions of Section 9[C][a](i), (ii) or (iii), the Company shall have no further obligation to the Employee, except for the payment of compensation through the date of such termination from employment. 10. Waiver: Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any other breach or default hereof. 11. Governing Law: The validity of this Agreement or of any of the provisions hereof shall be determined under and according to the laws of the State of New York, and this Agreement and its provisions shall be construed according to the laws of the State of New York without reference to its choice of law rules. 12. Notice: Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and by registered or certified mail and mailed to the following addresses: Company: American Biogenetic Sciences, Inc. 1375 Akron Street Copiague, New York 11726 Attention: Alfred J. Roach Chairman and CEO Employee: Ellena M. Byrne Number One Castledawson Sion Hill, Blackrock Co Dublin, Ireland 13. Assignment: The Employee's assignment of this Agreement or any interest herein, or any monies due or to become due by reason of the terms hereof, without the prior written consent of the Company shall be void. This Agreement shall be binding upon the Company, its successors (including any transferee of the good will of the Company) or assigns. 14. Prior Agreements Superseded: This Agreement supersedes any employment agreements, oral or written, entered into between Employee and the Company prior to the date of this Agreement. 15. Miscellaneous: This Agreement contains the entire understanding between the parties hereto and supersedes all other oral and written agreements or understandings between them. No modification or addition hereto or waiver or cancellation of any provision shall be valid except by a writing signed by the party to be charged therewith. 16. Obligations of a Continuing Nature: It is expressly understood and agreed that the covenants, agreements and restrictions undertaken by or imposed on Employee hereunder, which are stated to exist or continue after termination of Employee's employment with the Company, shall exist and continue irrespective of the method or circumstances of such termination from employment or termination of this Agreement. 3 17. Severability: Employee agrees that if any of the covenants, agreements or restrictions on the part of Employee are held to be invalid by any court of competent jurisdiction, such holding will not invalidate any of the other covenants, agreements and/or restrictions herein contained and such invalid provisions shall be severable so that the invalidity of any such provision shall not invalidate any others. Moreover, if any one or more of the provisions contained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable law. 18. Descriptive Headings. The paragraphs headings contained herein are for reference purposes only and shall not in any affect the meaning or interpretation of this Agreement. If the foregoing is in accordance with your understanding of the agreement between us, will you kindly signify same by signing this Agreement in the space provided below. Sincerely, AMERICAN BIOGENETIC SCIENCES, INC. /s/Alfred J. Roach ------------------ Alfred J. Roach Chairman of the Board AGREED AND ACCEPTED as of the above date /s/Ellena M. Byrne - ------------------ Ellena M. Byrne 4 EX-10 3 EX.10.1(C) EMPLOYMENT AGREEMENT - DR.STEPHEN H. IP EXHIBIT 10.1(c) EMPLOYMENT AGREEMENT -------------------- DR. STEPHEN H. IP AND AMERICAN BIOGENETIC SCIENCES, INC. -------------------------------------------------------- AGREEMENT, dated as of the 16th day of December, 1996, by and between AMERICAN BIOGENETIC SCIENCES, INC., a Delaware corporation, having a place of business at 1375 Akron Street, Copiague, New York 11726 (hereinafter designated and referred to as "Company"), and Stephen H. Ip, Ph.D. of 11 Singing Hills Circle, Sunbury, Massachusetts 01776 (hereinafter designated and referred to as "Employee"). WHEREAS, the Company desires to employ the Employee in the capacity of Executive Vice President of the Company; and WHEREAS, Employee is willing to accept such employment by the Company, all in accordance with provisions hereinafter set forth. NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, the parties hereto agree as follows: 1. Term: The term of this Agreement shall be for a period of three (3) years commencing January 1, 1997 and automatically terminating on December 31, 1999 subject to earlier termination as provided herein or unless extended by mutual consent of both parties in writing four (4) months prior to the end of the term of this Agreement or any extension thereof, but nothing herein shall require the Company to agree to any specific term or condition or to any continuation of your employment beyond December 31, 1999. 2. Employment: Subject to the terms and conditions and for the compensation hereinafter set forth, the Company employs the Employee for and during the term of this Agreement. Employee is hereby employed by the Company as its Executive Vice President, his powers and duties of an executive nature which are appropriate for an Executive Vice President shall be determined only by the Chairman of the Board or the Board of Directors or their duly authorized designee, from time to time; and the Employee does hereby accept such employment and agrees to use his best efforts and to devote all his normal business time, during the term of this Agreement, to the performance of his duties faithfully, diligently and to the best of his abilities upon the conditions hereinafter set forth. Employee shall report to the Chairman of the Board and Board of Directors (collectively hereinafter referred to as the "Board") of the Company. 3. Compensation: During the term of this Agreement, the Company agrees to pay Employee, and Employee agrees to accept, an initial first year annual salary of One Hundred and Fifty Thousand Dollars ($150,000.00) per year less all applicable taxes, payable every two weeks, for all services rendered by Employee hereunder including being a Director of the Company if elected to the Board of Directors. In addition, the Employee shall receive a one time sign on payment of Twenty Five Thousand Dollars ($25,000) payable on July 1, 1997 provided Employee is still an Employee and has not given notice of termination in accordance with Section 12[E]. The Employee shall be entitled to an annual bonus of up to twenty percent (20%) of his annual salary based on goals mutually agreed to between the parties. 1 4. Expenses: The Company shall reimburse Employee, not less often than monthly, for all reasonable and actual business expenses incurred by him in connection with his service to the Company, upon submission by him of appropriate vouchers and expense account reports. Specially, but without limitation, Employee shall be paid his reasonable expenses on trips to Long Island, New York. 5. Benefits: In addition to the salary to be paid to Employee hereunder, the Company shall provide medical and dental insurance and allow the Employee to participate in any disability, pension, retirement or other qualified plans adopted for the benefit of its employees, and in accordance with the Company's Plan(s). The Employee shall be entitled to a two (2) weeks annual vacation. 6. Extent of Service: The Employee during the term of this Agreement shall devote his full normal business time, attention and energy and render his best efforts and skill to the business of the Company. 7. Restrictive Covenant: (A) Employee acknowledges that (i) the business in which the Company is engaged is intensely competitive and that his employment by the Company will require that he have access to and knowledge of confidential information of the Company, including, but not limited to, certain of the Company's confidential plans for the creation, acquisition or disposition of products, expansion plans, product development plans, financial status, and plans and personnel information and trade secrets, which are of vital importance to the success of the Company's business; (ii) the direct or indirect disclosure of any such confidential information to existing or potential competitors of the Company would place the Company at a competitive disadvantage and would cause damage, financial and otherwise, to the Company's business; and (iii) by his training, experience and expertise, some of his services to the Company will be special and unique. (B) Employee agrees that, during the term of this Agreement and if the Agreement is terminated by the Company for cause, for a period of one (1) year after the termination of this Agreement, he will not directly or indirectly become affiliated as an officer, director, employee or consultant or as a substantial security holder with any other company or entity in a business which is directly competitive with any business then being conducted by the Company or its subsidiaries within the Continental United States or in countries abroad participating in the Company's Global Network. For the purpose hereof, "substantial security holder" shall mean ownership, directly or indirectly, of more than 5% of any class of securities of a company or partnership interest in any partnership. 8. Discoveries, etc.: [A] The Company shall be the owner, without further compensation, of all rights of every kind in and with respect to any reports, materials, inventions, processes, discoveries, improvements, modifications, know-how or trade secrets hereafter made, prepared, invented, discovered, acquired, suggested or reduced to practice (hereinafter designated and referred to as "Property Rights") by Employee in connection with Employee's performance of his duties pursuant to this Agreement, and the Company shall be entitled to utilize and dispose of such in such manner as it may determine. [B] The Employee agrees to and shall promptly disclose to the Board all Property Rights (whether or not patentable) made, discovered or conceived of by him, alone or with others, at any time during his employment with the Company. Any such Property Rights will be the sole and exclusive property of the Company, and Employee will execute any assignments requested by the Company of his right, title or interest in any such Property Rights. In addition, the Employee will also provide the Company with any other instruments or documents requested by the Company, at the Company's expense, as may be necessary or desirable in applying for and obtaining patents with respect thereto in the United States and all foreign 2 countries. The Employee also agrees to cooperate with the Company in the prosecution or defense of any patent claims or litigation or proceedings involving inventions, trade secrets, trademarks, services marks, secret processes, discoveries or improvements, whether or not he is employed by the Company at the time. 9. Confidential Information: Employee recognizes and acknowledges that the Company, through the expenditure of considerable time and money, will acquire, has developed and will continue to develop in the future, information, skills, confidential information, know-how, formulae, technical expertise and methods relating to or forming part of the Company's services and products and conduct of its business, and that the same are confidential and proprietary, and are "trade secrets" of the Company. Employee understands and agrees that such trade secrets give or may give the Company a significant competitive advantage. Employee further recognizes that the success of the Company depends on keeping confidential both the trade secrets already developed or to be acquired and any future developments of trade secrets. Employee understands that in his capacity with the Company he will be entrusted with knowledge of such trade secrets and, in recognition of the importance thereof and in consideration of his employment by the Company hereunder, agrees that he will not, without the consent of the Board, make any disclosure of trade secrets now or hereafter possessed by the Company to any person, partnership, corporation or entity either during or after the term hereunder, except to such employees of the Company or its subsidiaries or affiliates, if any, as may be necessary in the regular course of business and except as may be required pursuant to any court order, judgment or decision from any court of competent jurisdiction. The provisions of this Section shall continue in full force and effect notwithstanding any termination of this Agreement. 10. Irreparable Harm: Employee agrees that any breach or threatened breach by Employee of provisions set forth in Sections seven (7), eight (8) and nine (9) of this Agreement, would cause the Company irreparable harm and the Company may obtain injunctive relief against such actual or threatened conduct and without the necessity of a bond. 11. Return of Company Property: Employee agrees that following the termination of his employment for any reason, he shall return all property of the Company which is then in or thereafter comes into his possession, including, but not limited to, documents, contracts, agreements, plans, photographs, books, notes, electronically stored data and all copies of the foregoing as well as any other materials or equipment supplied by the Company to the Employee. 12. Termination: [A] Death: In the event of the Employee's death during the term of his employment, this Agreement shall automatically terminate on the date of death, and Employee's estate shall be entitled to payment of Employee's salary until date of death. [B] Disability: In the event the Employee, by reason of physical or mental incapacity, shall be disabled for a period of at least two (2) consecutive months in any of the years of this Agreement or any extension hereof, the Company shall have the option at any time thereafter, to terminate Employee's employment and to terminate this Agreement; such termination to be effective ten (10) days after the Company gives written notice of such termination to the Employee, and all obligations of the Company hereunder shall cease upon the date of such termination. "Incapacity" as used herein shall mean the inability of the Employee to perform his normal duties as Executive Vice President. [C] Company's Rights To Terminate This Agreement: 3 [a] The Company shall have the right, before the expiration of the term of this Agreement, to terminate this Agreement and to discharge Employee for cause (hereinafter "Cause"), and all compensation to Employee shall cease to accrue upon discharge of the Employee for Cause. For the purposes of this Agreement, the term "Cause" shall mean the Employee's (i) violation of the Company's written policy or specific written directions of the Board which directions are consistent with normally acceptable business practices or the failure to observe, or the failure or refusal to perform any obligations required to be performed in accordance with this Agreement. (ii) admission or conviction of a serious crime involving moral turpitude or (iii) if the Chairman of the Board determines that employee has committed a demonstrable act (or omission) of malfeasance seriously detrimental to this Company (which shall not include any exercise of business judgment in good faith or any illegal or unethical act). [b] If the Company, elects to terminate Employee's employment for Cause, under Section 12 [C] [a](i), the Company shall first give Employee written notice and a period of thirty (30) days to cure such Cause, and if such Cause is not cured in said thirty (30) days, such termination shall be effective five (5) days after the Company gives written notice of such termination to the Employee. In the event of a termination of the Employee's employment for Cause in accordance with the provisions of Section 12 [C][a][b](ii) or (iii), the Company shall have no further obligation to the Employee, except for the payment of salary through the date of such termination from employment. [D] Termination Without Cause by the Company: [a] The Company shall have the right to terminate the Agreement without cause on thirty (30) days' written notice to the Employee. [b] In the event the Agreement is terminated pursuant to subsection 12 [D][a], the Company shall pay the Employee his then existing compensation for one (1) year payable monthly commencing with the day following the day the notice becomes effective and Employee shall be available for on call consulting services during such one year period at no additional compensation. If during such one year period Employee enters into a full time employment relationship with a third party then (i) no further compensation shall be due to Employee hereunder and (ii) Employee shall no longer be required to provide on call consulting services. [E] Termination Without Cause by the Employee: Employee after July 1, 1997 may give the Company sixty (60) days written notice of termination under this Agreement without cause. 13. Travel: Employee agrees to work out of the offices of the Company in Boston, Massachusetts and spend so much of his normal business time at the facilities of the Company at Copiague, New York, as is necessary to properly fulfill his duties as its Executive Vice President. Employee agrees to relocate if so required and relocation expenses shall be paid by the Company. In addition, the Employee agrees that to the extent required he shall travel both domestically and internationally for the Company. 14. Waiver: Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any other breach or default hereof. 15. Governing Law: The validity of this Agreement or of any of the provisions hereof shall be determined under and according to the laws of the State of New York, and this Agreement and its provisions 4 shall be construed according to the laws of the State of New York without reference to its choice of law rules. 16. Notice: Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and by registered or certified mail and mailed to the following addresses: Company: American Biogenetic Sciences, Inc. 1375 Akron Street Copiague, New York 11726 Attention: Alfred J. Roach Chairman and CEO Employee: Stephen H. Ip, Ph.D. 11 Singing Hills Circle Sunbury, Massachusetts 01776 17. Assignment: The Employee's assignment of this Agreement or any interest herein, or any monies due or to become due by reason of the terms hereof, without the prior written consent of the Company shall be void. This Agreement shall be binding upon the Company, its successors (including any transferee of the good will of the Company) or assigns. 18. Miscellaneous: This Agreement contains the entire understanding between the parties hereto and supersedes all other oral and written agreements or understandings between them. No modification or addition hereto or waiver or cancellation of any provision shall be valid except by a writing signed by the party to be charged therewith. 19. Obligations of a Continuing Nature: It is expressly understood and agreed that the covenants, agreements and restrictions undertaken by or imposed on Employee hereunder, which are stated to exist or continue after termination of Employee's employment with the Company, shall exist and continue. 20. Severability: Employee agrees that if any of the covenants, agreements or restrictions on the part of Employee are held to be invalid by any court of competent jurisdiction, such holding will not invalidate any of the other covenants, agreements and/or restrictions herein contained and such invalid provisions shall be severable so that the invalidity of any such provision shall not invalidate any others. Moreover, if any one or more of the provisions contained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable law. 21. Representation: Employee represents and warrants that he has the legal right to enter into this Agreement and to perform all of the obligations on his part to be performed hereunder in accordance with its terms and that he is not a party to any agreement or understanding, written or oral, which prevents him from entering into this Agreement or performing all of his obligations hereunder. In the event of a breach of such representation or warranty on his part or if there is any other legal impediment which prevents him from entering into this Agreement or performing all of his obligations hereunder, the Company shall have the right to terminate this Agreement in accordance with Section 12[C][a]; in which event the "Cause" shall not be deemed curable under Section 12[C][b], and Employee will save harmless the Company in the event of legal action by former employers for injunction relief or damages. 5 22. Stock Option: Employee and the Company agree to execute a stock option agreement that Employee shall have a right to purchase an aggregate of 200,000 shares of Class A Common Stock of the Company in accordance with the Company's Stock Option Plan ("Plan"), exercisable at the rate of 33 1/3% after the first year and 16 2/3% for each six months thereafter. The options will be exercisable at the average of the closing bid and asked prices of such shares on the first business day after the commencement date of this Agreement. The options will be subject to all of the terms and conditions of the Plan and Employee hereby agrees to all such terms and conditions. 23. Descriptive Headings. The headings contained herein are for reference purposes only and shall not in any affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. AMERICAN BIOGENETIC SCIENCES, INC. By:/s/Alfred J. Roach --------------------- Alfred J. Roach Chairman and CEO By:/s/ Stephen H. Ip -------------------- Stephen H. Ip, Ph.D. Employee 6 EX-10 4 EX.10.1(D) EMPLOYMENT AGT. - DR.JOSEPH P.LAURINO EXHIBIT 10.1(d) EMPLOYMENT AGREEMENT -------------------- DR. JOSEPH P. LAURINO AND AMERICAN BIOGENETIC SCIENCES, INC. ------------------------------------------------------------ AGREEMENT, dated as of the 3rd day of February, 1997, by and between AMERICAN BIOGENETIC SCIENCES, INC., a Delaware corporation, having a place of business at 1375 Akron Street, Copiague, New York 11726 (hereinafter designated and referred to as "Company"), and Joseph P. Laurino, Ph.D. of 10 Eagle Nest Drive, Lincoln, RI 02865 (hereinafter designated and referred to as "Employee"). WHEREAS, the Company desires to employ the Employee in the capacity of Senior Vice President Research and Development of the Company; and WHEREAS, Employee is willing to accept such employment by the Company, all in accordance with provisions hereinafter set forth. NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, the parties hereto agree as follows: 1. Term: The term of this Agreement shall be for a period of five (5) years commencing February 3, 1997 and automatically terminating on February 3, 2002 subject to earlier termination as provided herein or unless extended by mutual consent of both parties in writing sixty (60) days prior to the end of the term of this Agreement or any extension thereof, but nothing herein shall require the Company to agree to any specific term or condition or to any continuation of your employment beyond February 3, 2002. 2. Employment: Subject to the terms and conditions and for the compensation hereinafter set forth, the Company employs the Employee for and during the term of this Agreement. Employee is hereby employed by the Company as its Senior Vice President - Research and Development, his powers and duties of an executive nature which are appropriate for an Senior Vice President - Research and Development shall be determined only by the Chairman of the Board or the Board of Directors or their duly authorized designee, from time to time; and the Employee does hereby accept such employment and agrees to use his best efforts and to devote all his normal business time, during the term of this Agreement, to the performance of his duties faithfully, diligently and to the best of his abilities upon the conditions hereinafter set forth. Employee shall report to the Chairman of the Board and Board of Directors (collectively hereinafter referred to as the "Board") of the Company. 3. Compensation: During the term of this Agreement, the Company agrees to pay Employee, and Employee agrees to accept, an annual salary of One Hundred and Fifty Thousand Dollars ($150,000.00) per year less all applicable taxes, payable every two weeks, for all services rendered by Employee hereunder including being a Director of the Company if elected to the Board of Directors. The Employee shall be entitled to an annual bonus of up to twenty percent (20%) of his annual salary based on goals mutually agreed to between the parties. 4. Expenses: The Company shall reimburse Employee, not less often than monthly, for all reasonable and actual business expenses incurred by him in connection with his service to the Company, upon 1 submission by him of appropriate vouchers and expense account reports. Specially, but without limitation, Employee shall be paid his reasonable expenses on trips to Long Island, New York. 5. Benefits: In addition to the salary to be paid to Employee hereunder, the Company shall provide medical and dental insurance and any disability, pension, retirement or other qualified plans adopted for the benefit of its employees, and in accordance with the Company's Plan(s). The Employee shall be entitled to a two (2) weeks annual vacation. 6. Extent of Service: The Employee during the term of this Agreement shall devote his full normal business time, attention and energy and render his best efforts and skill to the business of the Company, but employee shall be permitted all reasonable time necessary to perform his obligations under an existing contract with the Memorial Hospital of Rhode Island. 7. Restrictive Covenant: (A) Employee acknowledges that (i) the business in which the Company is engaged is intensely competitive and that his employment by the Company will require that he have access to and knowledge of confidential information of the Company, including, but not limited to, certain of the Company's confidential plans for the creation, acquisition or disposition of products, expansion plans, product development plans, financial status, and plans and personnel information and trade secrets, which are of vital importance to the success of the Company's business; (ii) the direct or indirect disclosure of any such confidential information to existing or potential competitors of the Company would place the Company at a competitive disadvantage and would to damage, financial and otherwise, to the Company's business; and (iii) by his training, experience and expertise, some of his services to the Company will be special and unique. (B) Employee agrees that, during the term of this Agreement and if the Agreement is terminated by the Company for cause, for a period of one (1) year after the termination of this Agreement, he will not directly or indirectly become affiliated as an officer, director, employee or consultant or as a substantial security holder with any other company or entity whose business is directly competitive with any business then being conducted by the Company or its subsidiaries within the Continental United States or in countries abroad participating in the Company's Global Network. For the purpose hereof, "substantial security holder" shall mean ownership, directly or indirectly, of more than 5% of any class of securities of a company or partnership interest in any partnership other than the existing patent contract between the employee and the Memorial Hospital of Rhode Island. 8. Discoveries, etc.: [A] The Company shall be the owner, without further compensation, of all rights of every kind in and with respect to any reports, materials, inventions, processes, discoveries, improvements, modifications, know-how or trade secrets hereafter made, prepared, invented, discovered, acquired, suggested or reduced to practice (hereinafter designated and referred to as "Property Rights") by Employee in connection with Employee's performance of his duties pursuant to this Agreement, and the Company shall be entitled to utilize and dispose of such in such manner as it may determine. [B] The Employee agrees to and shall promptly disclose to the Board all Property Rights (whether or not patentable) made, discovered or conceived of by him, alone or with others, at any time during his employment with the Company. Any such Property Rights will be the sole and exclusive property of the Company, and Employee will execute any assignments requested by the Company of his right, title or interest in any such Property Rights. In addition, the Employee will also provide the Company with any other instruments or documents requested by the Company, at the Company's expense, as may be necessary or desirable in applying for and obtaining patents with respect thereto in the United States and all foreign countries. The Employee also agrees to cooperate with the Company and to devote reasonable time to the 2 prosecution or defense of any patent claims or litigation or proceedings involving inventions, trade secrets, trademarks, services marks, secret processes, discoveries or improvements, whether or not he is employed by the Company at the time. 9. Confidential Information: Employee recognizes and acknowledges that the Company, through the expenditure of considerable time and money, will acquire, has developed and will continue to develop in the future, information, skills, confidential information, know-how, formulae, technical expertise and methods relating to or forming part of the Company's services and products and conduct of its business, and that the same are confidential and proprietary, and are "trade secrets" of the Company. Employee understands and agrees that such trade secrets give or may give the Company a significant competitive advantage. Employee further recognizes that the success of the Company depends on keeping confidential both the trade secrets already developed or to be acquired and any future developments of trade secrets. Employee understands that in his capacity with the Company he will be entrusted with knowledge of such trade secrets and, in recognition of the importance thereof and in consideration of his employment by the Company hereunder, agrees that he will not, without the consent of the Board, make any disclosure of trade secrets now or hereafter possessed by the Company to any person, partnership, corporation or entity either during or after the term hereunder, except to such employees of the Company or its subsidiaries or affiliates, if any, as may be necessary in the regular course of business and except as may be required pursuant to any court order, judgment or decision from any court of competent jurisdiction. The provisions of this Section shall continue in full force and effect notwithstanding any termination of this Agreement. 10. Irreparable Harm: Employee agrees that any breach or threatened breach by Employee of provisions set forth in Sections seven (7), eight (8) and nine (9) of this Agreement, would cause the Company irreparable harm and the Company may obtain injunctive relief against such actual or threatened conduct and without the necessity of a bond. 11. Return of Company Property: Employee agrees that following the termination of his employment for any reason, he shall return all property of the Company which is then in or thereafter comes into his possession, including, but not limited to, documents, contracts, agreements, plans, photographs, books, notes, electronically stored data and all copies of the foregoing as well as any other materials or equipment supplied by the Company to the Employee. 12. Termination: [A] Death: In the event of the Employee's death during the term of his employment, this Agreement shall automatically terminate on the date of death, and Employee's estate shall be entitled to payment of Employee's salary until date of death. [B] Disability: In the event the Employee, by reason of physical or mental incapacity, shall be disabled for a period of at least two (2) consecutive months in any of the years of this Agreement or any extension hereof, the Company shall have the option at any time thereafter, to terminate Employee's employment and to terminate this Agreement; such termination to be effective ten (10) days after the Company gives written notice of such termination to the Employee, and all obligations of the Company hereunder shall cease upon the date of such termination. "Incapacity" as used herein shall mean the inability of the Employee to perform his normal duties as Senior Vice President - Research and Development. 3 [C] Company's Rights To Terminate This Agreement: [a] The Company shall have the right, before the expiration of the term of this Agreement, to terminate this Agreement and to discharge Employee for cause (hereinafter "Cause"), and all compensation to Employee shall cease to accrue upon discharge of the Employee for Cause. For the purposes of this Agreement, the term "Cause" shall mean the Employee's (i) violation of the Company's written policy or specific written directions of the Chairman of the Board which directions are consistent with normally acceptable business practices or the failure to observe, or the failure or refusal to perform any obligations required to be performed in accordance with this Agreement. (ii) admission or conviction of a serious crime involving moral turpitude or (iii) if the Chairman of the Board determines that employee has committed a demonstrable act (or omission) of malfeasance seriously detrimental to this Company (which shall not include any exercise of business judgment in good faith). [b] If the Company, elects to terminate Employee's employment for Cause, under Section 12 [C] [a](i), the Company shall first give Employee written notice and a period of thirty (30) days to cure such Cause, and if such Cause is not cured in said thirty (30) days, such termination shall be effective five (5) days after the Company gives written notice of such termination to the Employee. In the event of a termination of the Employee's employment for Cause in accordance with the provisions of Section 12 [C][a](ii) or (iii), the Company shall have no further obligation to the Employee, except for the payment of salary through the date of such termination from employment. 13. Travel: Employee agrees to work out of the offices of the Company in Boston, Massachusetts and spend so much of his normal business time at the facilities of the Company at Copiague, New York, as is necessary to properly fulfill his duties as its Senior Vice President - Research and Development. Employee agrees to relocate if so required and reasonable relocation expenses shall be paid by the Company. In addition, the Employee agrees that to the extent required he shall travel both domestically and internationally for the Company. 14. Waiver: Any waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any other breach or default hereof. 15. Governing Law: The validity of this Agreement or of any of the provisions hereof shall be determined under and according to the laws of the State of New York, and this Agreement and its provisions shall be construed according to the laws of the State of New York without reference to its choice of law rules. 16. Notice: Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and by registered or certified mail and mailed to the following addresses: Company: American Biogenetic Sciences, Inc. 1375 Akron Street Copiague, New York 11726 Attention: Alfred J. Roach Chairman and CEO Employee: Joseph P. Laurino, Ph.D. 10 Eagle Nest Drive Lincoln, Rhode Island 02864 4 17. Assignment: The Employee's assignment of this Agreement or any interest herein, or any monies due or to become due by reason of the terms hereof, without the prior written consent of the Company shall be void. This Agreement shall be binding upon the Company, its successors (including any transferee of the good will of the Company) or assigns. 18. Miscellaneous: This Agreement contains the entire understanding between the parties hereto and supersedes all other oral and written agreements or understandings between them. No modification or addition hereto or waiver or cancellation of any provision shall be valid except by a writing signed by the party to be charged therewith. 19. Obligations of a Continuing Nature: It is expressly understood and agreed that the covenants, agreements and restrictions undertaken by or imposed on Employee hereunder, which are stated to exist or continue after termination of Employee's employment with the Company, shall exist and continue irrespective of the method or circumstances of such termination from employment or termination of this Agreement. 20. Severability: Employee agrees that if any of the covenants, agreements or restrictions on the part of Employee are held to be invalid by any court of competent jurisdiction, such holding will not invalidate any of the other covenants, agreements and/or restrictions herein contained and such invalid provisions shall be severable so that the invalidity of any such provision shall not invalidate any others. Moreover, if any one or more of the provisions contained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable law. 21. Representation: Employee represents and warrants that he has the legal right to enter into this Agreement and to perform all of the obligations on his part to be performed hereunder in accordance with its terms and that he is not a party to any agreement or understanding, written or oral, which prevents him from entering into this Agreement or performing all of his obligations hereunder. In the event of a breach of such representation or warranty on his part or if there is any other legal impediment which prevents him from entering into this Agreement or performing all of his obligations hereunder, the Company shall have the right to terminate this Agreement in accordance with Section 12[C][a]; in which event the "Cause" shall not be deemed curable under Section 12[C][b], and Employee will save harmless the Company in the event of legal action by former employers for injunction relief or damages. 22. Stock Option: Employee and the Company agree that a stock option has been granted to purchase 100,000 shares of Class A Common Stock of the Company in accordance with the Company's Stock Option Plan ("Plan"), exercisable at the rate of 25% per year. The options will be subject to all of the terms and conditions of the Plan and Employee hereby agrees to all such terms and conditions. 23. Descriptive Headings. The paragraphs headings contained herein are for reference purposes only and shall not in any affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written. 5 AMERICAN BIOGENETIC SCIENCES, INC. By:/s/ Alfred J. Roach ---------------------- Alfred J. Roach Chairman and CEO By:/s/ Joseph P. Laurino ------------------------ Joseph P. Laurino, Ph.D. Employee 6 -----END PRIVACY-ENHANCED MESSAGE-----