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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 2000.
REGISTRATION NO. 333-48358
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARQULE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 04-3221586
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
19 PRESIDENTIAL WAY
WOBURN, MASSACHUSETTS 01801
(781) 994-0300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DR. STEPHEN A. HILL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ARQULE, INC.
19 PRESIDENTIAL WAY
WOBURN, MASSACHUSETTS 01801
(781) 994-0300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH COPIES TO:
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<S> <C>
MICHAEL E. LYTTON, ESQ. JONATHAN L. KRAVETZ, ESQ.
PALMER & DODGE LLP MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE BEACON STREET ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02108-3190 BOSTON, MASSACHUSETTS 02111
(617) 573-0100 (617) 542-6000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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EXPLANATORY NOTE
The sole purpose of this amendment is to file Exhibit 1.1 Form of Underwriting
Agreement.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be borne by the Company in connection with the securities being
registered are as follows:
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<S> <C>
SEC registration fee........................................ $ 14,353
NASD Filing Fee............................................. 6,000
Accounting fees and expenses................................ 25,000
Legal fees and expenses..................................... 30,000
Printing and photocopying expenses.......................... 75,000
Miscellaneous expenses...................................... 4,647
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Total................................................... $155,000
========
</TABLE>
All of the above figures, except the SEC registration, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law grants the Company the power
to indemnify each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that he is or was a director, officer, employee or agent of the Company, or is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, provided, however, no
indemnification shall be made in connection with any proceeding brought by or in
the right of the Company where the person involved is adjudged to be liable to
the Company except to the extent approved by a court. Article V of our Amended
and Restated By-laws provides that the Company shall, to extent legally
permitted, indemnify each person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
by reason of the fact that he is or was, or has agreed to become, a director or
officer of the Company, or is or was serving, or has agreed to serve, at the
request of the Company, as a director, officer or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust or other
enterprise. The indemnification provided for in Article V is expressly not
exclusive of any other rights to which those seeking indemnification may be
entitled under any law, agreement or vote of stockholders or disinterested
directors or otherwise, and shall inure to the benefit of the heirs, executors
and administrators of such persons. Article V also provides that the Company
shall have the power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company, as a director, officer or trustee of,
or in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against and incurred
by such person in any such capacity.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Laws, Section
7 of Article FIFTH of our Restated Certificate eliminates a director's personal
liability for monetary damages to the Company and its stockholders for breaches
of fiduciary duty as a director, except in circumstances involving a breach of a
director's duty of loyalty to the Company or its stockholders, acts or omissions
not in good faith,
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PART II
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intentional misconduct, knowing violations of the law, self-dealing or the
unlawful payment of dividends or repurchase of stock.
ITEM 16. EXHIBITS
See the Exhibit Index immediately following the signature page.
ITEM 17. UNDERTAKINGS
(a) The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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Signatures
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT TO
BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF WOBURN, COMMONWEALTH OF MASSACHUSETTS, ON NOVEMBER 15, 2000.
ArQule, Inc.
By: *
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Stephen A. Hill
President and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
* President and Chief Executive November 15, 2000
------------------------------------------------ Officer (Principal Executive
Stephen A. Hill Officer)
* Senior Vice President of Research November 15, 2000
------------------------------------------------ and Development, Chief Scientific
Philippe Bey Officer
* Vice President, Chief Financial November 15, 2000
------------------------------------------------ Officer and Treasurer (Principal
David C. Hastings Financial Officer and Principal
Accounting Officer)
* Director November 15, 2000
------------------------------------------------
Laura Avakian
* Director November 15, 2000
------------------------------------------------
Werner Cautreels
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
* Director November 15, 2000
------------------------------------------------
Ariel Elia
* Director November 15, 2000
------------------------------------------------
L. Patrick Gage
* Director November 15, 2000
------------------------------------------------
Tuan Ha-Ngoc
* Director November 15, 2000
------------------------------------------------
Michael Rosenblatt
</TABLE>
*By: /s/ MICHAEL LYTTON
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Michael Lytton
Attorney-in-fact
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Exhibit Index
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<CAPTION>
NUMBER DESCRIPTION
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<C> <S>
1.1 Form of Underwriting Agreement. Filed herewith.
4.1 Specimen Common Stock Certificate. Filed as Exhibit 4.1 to
our Registration Statement on Form S-1 (File No. 333-11105)
and incorporated herein by reference.
5.1 Opinion of Palmer & Dodge LLP. Previously filed.
10.1+ Compound Discovery Collaboration Agreement between ArQule
and Genome Therapeutics Corporation dated October 17, 2000.
Previously filed.
23.1 Consent of Counsel (contained in opinion of Palmer & Dodge
LLP filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP. Previously filed.
24 Power of Attorney. Included on signature page to
Registration Statement filed October 20, 2000.
</TABLE>
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+ This Exhibit has been filed separately with the Commission pursuant to an
application for confidential treatment. The confidential portions of this
Exhibit have been omitted and are marked by an asterisk.
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