Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
AQUILA BIOPHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3307818
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
365 Plantation Street
Worcester, Massachusetts 01605
(508) 797-5777
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
AQUILA BIOPHARMACEUTICALS, INC. 1996 STOCK AWARD AND OPTION PLAN
AQUILA BIOPHARMACEUTICALS, INC. 1996 DIRECTORS STOCK AWARD AND OPTION PLAN
(Full title of the Plan)
Jane V. Hawkes, Secretary
Aquila Biopharmaceuticals, Inc.
c/o Bowditch & Dewey
311 Main Street
Worcester, Massachusetts 01608
(508) 791-3511
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of each class Amount to be Proposed maximum Proposed maximum
oF securities to be registered (1) offering price per aggregate offering
registered share (2) price (2)
Common Stock, par 2,200,000 $5.00 $11,000,000
value
$.01 per share
Amount of
registration fee
$3,333
(1) The number of shares of Aquila Biopharmaceuticals, Inc. common stock is
based upon the estimated maximum number of such shares to be issued upon
exercise of all options that may be issued under the aforesaid plans.
(2) Estimated solely pursuant to Rule 457 for the purposes of calculating
the registration fee, based upon the last sale price of the common stock on
April 1, 1997, as reported by the NASDAQ National Market System.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed with the Commission
are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996;
2. The description of the Company's common stock as
contained in the Company's Registration Statement on
Form 8-A with respect to such securities and in the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996. (File No. 0-12081.)
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 subsequent to the documents enumerated above, and
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities - Not Applicable.
Item 5. Interests of Named Experts and Counsel
EXPERTS
The financial statements of the Company, incorporated by
reference in this Registration Statement have been audited by
Coopers & Lybrand L.L.P., independent certified public
accountants, as stated in their report which is also incorporated
by reference herein. Such financial statements have been so
incorporated in reliance upon the report of such firm, given upon
the authority of that firm as experts in accounting and auditing.
LEGAL OPINIONS
The legality of the common stock being offered in this
Registration Statement and certain other legal matters in
connection with this offering are being passed upon for the
Company by Bowditch & Dewey, Worcester, Massachusetts.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides
that the Company shall have the power to indemnify any director,
officer, employee or agent for expenses (including attorneys
fees) judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with any suit,
action or proceeding if such person 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
proceeding, had no reasonable cause to believe his conduct was
unlawful. In the event an action against such a person is by or
in the right of the Company and such person shall have been
adjudged to be liable to the Company, such indemnification is
permitted only to the extent that the Court of Chancery or the
court in which such action is brought shall deem proper.
Article III of the Company's By-Laws provides for
indemnification of its directors, officers, employees or agents
to the fullest extent provided by law.
Article Sixth of the Company's Restated Certificate of
Incorporation provides that a director of the Company shall not
be personally liable to the Company or its shareholders for
monetary damages for breach of fiduciary duty as a director
except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal
benefit.
The Company maintains an Executive Liability and
Indemnification Policy. Subject to the policy conditions, the
insurance provides coverage for amounts payable by the Company to
its directors and officers pursuant to the Company's By-Laws.
Item 7. Exemption from Registration Claimed - Not Applicable
Item 8. Exhibits
4.1 Specimen Certificate representing common stock of
the Company (incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K dated October 21, 1996.)
(File No. 0-12081).
o5.1 Opinion of Bowditch & Dewey
o23.1 Consent of Coopers & Lybrand L.L.P.
o23.2 Consent of Bowditch & Dewey (included in
Exhibit 5.1).
o24.1 Power of Attorney (included on signature
page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement; provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment 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.
(3) To remove from registration, by means of a post-
effective amendment, any of the securities being registered which
remain unsold at the termination of the offering.
(b) 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 the 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers, and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Worcester, Commonwealth of Massachusetts on April 1,
1997
AQUILA BIOPHARMACEUTICALS, INC.
/s/ Alison Taunton-Rigby
By: ______________________________
Alison Taunton-Rigby
President (Principal Executive
Officer)
/s/ Stephen J. DiPalma
By: ______________________________
Stephen J. DiPalma
Vice President-Finance,
Treasurer
and Chief Financial Officer
(Principal Financial Officer)
/s/ Paul Foulkrod
By: ______________________________
Paul Foulkrod
Principal Accounting Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated. Each
person whose signature appears below does hereby make, constitute
and appoint Alison Taunton-Rigby and Jane V. Hawkes, and each of
them, his true and lawful attorneys and agents with full power
and authority, on his behalf, to execute and file with the
Securities and Exchange Commission any amendment or amendments,
including post-effective amendments, to this Registration
Statement, and any and all instruments and documents which may be
necessary or desirable in connection with the registration of the
shares of common stock pursuant to this Registration Statement,
and he does hereby ratify and confirm all of his said attorneys
and agents may do or cause to be done by virtue hereof.
Signature Title Date
/s/ Alison Taunton-Rigby
______________________________ Director April 2, 1997
Alison Taunton-Rigby
/s/ Elliott D. Hillback, Jr.
______________________________ Director April 2, 1997
Elliott D. Hillback, Jr.
/s/ John M. Nelson
______________________________ Director April 2, 1997
John M. Nelson
/s/ Keith J. Dorrington
______________________________ Director April 2, 1997
Keith J. Dorrington
/s/ Jeffrey T. Beaver
______________________________ Director April 2, 1997
Jeffrey T. Beaver
EXHIBIT INDEX
4.1 Specimen Certificate representing common stock of
the Company (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on
Form 8-K dated October 21, 1996.) (File No. 0-
12081).
o5.1 Opinion of Bowditch & Dewey
o23.1 Consent of Coopers & Lybrand L.L.P.
o23.2 Consent of Bowditch & Dewey (included in
Exhibit 5.1).
o24.1 Power of Attorney (included on signature page).
____________________
oFiled herewith
EXHIBIT 5.1
OPINION OF BOWDITCH & DEWEY
[B&D LETTERHEAD]
April 2, 1997
Aquila Biopharmaceuticals, Inc.
365 Plantation Street
Worcester, MA 01605
Ladies and Gentlemen:
This opinion is delivered to you in connection with the
registration statement on Form S-8 (the "Registration Statement")
filed on April 2, 1997 by Aquila Biopharmaceuticals, Inc. (the
"Company") under the Securities Act of 1933, as amended, for
registration under said Act of 2,200,000 shares of the common
stock, $.01 par value (the "Common Stock"), of the Company.
We are familiar with the restated certificate of
incorporation and the by-laws of the Company, both as amended,
the corporate minute book of the Company, and the Registration
Statement. We have also made such further investigation as we
have deemed necessary for the purposes of this opinion.
Based upon and subject to the foregoing, we are of the
opinion that the shares of Common Stock to be originally issued
by the Company and distributed pursuant to the plans described in
the Registration Statement have been duly authorized and, when
issued, will be legally issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection
with the Registration Statement. We consent to the filing of
this opinion as an exhibit to the Registration Statement and the
reference to our firm in the Registration Statement under the
caption "Legal Opinions." In giving such consent, we do not
thereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of
1933, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Bowditch & Dewey
BOWDITCH & DEWEY, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Aquila Biopharmaceuticals, Inc. (the "Company") on Form S-8 to register
2,200,000 shares of common stock, par value $.01 per share of our report, dated
March 7, 1997, on our audits of the financial statements of Aquila Biopharma-
ceuticals, Inc. as of December 31, 1996 and 1995, and for each of the three
years in the period ended December 31, 1996, which report is included in the
1996 Annual Report on Form 10-K of the Company. We also consent to the
reference to our firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
________________________________
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
March 31, 1997
