Registration No. 333-80093
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-2/A
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 of (I.R.S. Employer
incorporation or organization) Identification Number)
175 Crossing Boulevard
Framingham, Massachusetts 01702
(508) 628-0100
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
______________________
ATTORNEY JANE V. HAWKES
BOWDITCH & DEWEY, LLP
311 Main Street
Worcester, Massachusetts 01608
(508) 791-3511
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
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.
SUBJECT TO COMPLETION DATED JUNE 4, 1999
PROSPECTUS
750,000 SHARES
AQUILA BIOPHARMACEUTICALS, INC.
COMMON STOCK
All shares of common stock offered hereby are being sold by Aquila.
The price of such shares will be determined by negotiations between Aquila and
the purchasers.
Aquila's common stock is traded on the NASDAQ National Market System
under the symbol "AQLA". On June 2, 1999, the last reported sale price for
the common stock on the NASDAQ National Market was $2.00 per share.
INVESTMENT IN THE SHARES INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" COMMENCING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS JULY ___, 1999.
The information in this Prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This Prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and current
reports, proxy materials and other information with the SEC. You may read and
copy these reports, proxy materials and other information at the SEC's public
reference rooms at 450 Fifth Street, N.W., Washington, DC 20549, New York, NY,
and Chicago, IL. You can request copies of these documents by writing to the
SEC and paying a fee for the copying costs. Please call the SEC at 1-800-SEC-
0330 for more information about the operation of the public reference rooms.
Our SEC filings are also available at the SEC's Web Site at
"http:\\www.sec.gov".
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those other documents. The information incorporated by
reference is an important part of this Prospectus, and information that we file
later with the SEC will automatically update and supercede this information.
We incorporate by reference the documents listed below and any future filings
we will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the fiscal year ended December
31, 1998;
- Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1999; and
- Description of the common stock contained in Aquila's Registration
Statement on Form 8(a) filed the SEC under the Securities Exchange
Act of 1934.
We are delivering with this Prospectus a copy of the Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 and the Quarterly Report
on Form 10-Q for the fiscal quarter ended March 31, 1999. You may request a
copy of the other filings at no cost, by writing or telephoning us at the
following address:
Aquila Biopharmaceuticals, Inc.
175 Crossing Boulevard
Framingham, Massachusetts 01702
Attn: James L. Warren, CFO
(508) 628-0100
This Prospectus is part of a registration statement we have filed with
the SEC. You should rely only on the information incorporated by reference or
provided in this Prospectus. No one else is authorized to provide you with
different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this Prospectus is accurate as of any date other than the date
on the front of this document.
PROSPECTUS SUMMARY
The Company
We engage in discovery, development and commercialization of products
to prevent, treat or control infectious diseases, autoimmune disorders and
cancers. Our proprietary product development programs include Quilvax-M(tm)
for controlling bovine mastitis, Quilimmune-M(tm) for preventing malaria and
Quilimmune-P(tm) for preventing pneumococcal infections. CD1-TB to prevent
tuberculosis infections and CD1-CHL for preventing chlamydia infections are
in research. We have six corporate partners who are involved in product
development programs using our Stimulon(tm) adjuvants. A seventh corporate
partner markets our feline leukemia virus vaccine.
The Offering
Common Stock Offered 750,000 shares offered by Aquila
Common Stock Outstanding 6,996,738 shares
as of June 2, 1999
Use of Proceeds Proceeds will be used for research
and development activities, including
preclinical and clinical studies,
capital expenditures and other general
corporate purposes. See "Use of
Proceeds."
NASDAQ Symbol AQLA
FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated herein contain forward-
looking statements which involve a number of risks and uncertainties. Actual
results may differ materially from those anticipated in the forward-looking
statements. The following factors, among others, could effect our actual
results: general economic conditions; risks in product and technology develop-
ment; delays and difficulties in the regulatory approval process; difficulties
in obtaining raw materials and supplies for the Company's products; failure of
corporate partners to commercialize successfully products using the Company's
technology; competition from other companies; the costs of acquiring additional
technology; failure to obtain the funding necessary for the Company's planned
activities; and other risks and uncertainties identified in this Prospectus and
the Company's SEC filings and the exhibits thereto, including those set forth
under "Risk Factors" below.
RISK FACTORS
Investment in the shares offered hereby involves a high degree of risk.
Please consider carefully the following risk factors, among others, relating to
the Company.
HISTORY OF OPERATING LOSSES
Because of the nature of the business of developing and commercializing
drug products, our operating expenses from 1995 through 1998 have exceeded our
operating revenues for the same period by significant amounts. We expect to
incur additional operating losses over the next several years, and we expect
losses to increase as our research and development and clinical trial efforts
expand. We cannot guarantee that we will successfully develop, receive
regulatory approval for, commercialize, manufacture, market and sell any
additional products, or achieve or sustain future profitability.
EARLY STAGE OF TECHNOLOGY, UNCERTAINTY OF PRODUCT DEVELOPMENT AND
SUCCESSFUL COMMERCIALIZATION
Many of our research and development programs are at an early stage of
development. To date, the USDA has only approved one of our product candidates,
Quilvax-FeLV(tm), our feline leukemia vaccine. Neither the USDA(in the case of
our animal product candidate) nor the FDA (in the case of our human product
candidates) has approved any of our other product candidates. While our
development efforts are at different stages for different products, we cannot
assure you that we will successfully develop any additional products or that
we will not abandon some or all of our proposed research programs. We must
conduct time-consuming, extensive and costly clinical trials, in compliance
with FDA regulations to show the safety and effectiveness of each of our human
product candidates before the FDA can approve a product candidate for sale.
We must also conduct trials and comply with USDA regulations to show the safety
and effectiveness of our animal product candidate before it is approved.
Clinical trials are lengthy and expensive and have a high risk of failure. In
addition, to compete effectively, our products must be easy to use, cost
effective and economical to manufacture on a commercial scale. We cannot assure
you that we can achieve any of these objectives. Any of our product candidates
may fail the testing phase or may not attain market acceptance. Also, third
parties may develop superior products or have proprietary rights that preclude
us from marketing our products. Some of our product candidates and those
products being developed by our collaborators and licensees have advanced to
human clinical trials. We have one animal product in clinical trials, one human
product has completed Phase I clinical trials and one human product is in Phase
II clinical trials.
Our product candidates are prone to the risks of failure inherent in
pharmaceutical product development, including the following:
- Our technical approach will not be successful;
- Any or all of our product candidates will not be safe and
effective;
- Product candidates will not otherwise meet applicable regulatory
standards or receive regulatory clearance;
- Our product candidates will not prove to be commercially viable
products;
- We will not be able to manufacture or produce economically or on a
large scale any or all of our product candidates;
- We will not be able to successfully market our product candidates;
- We will not be able to market such products because of the
proprietary rights of third-parties; and
- Our competitors will market superior or equivalent products.
FUTURE FUNDING NEEDS; UNCERTAINTY OF ADDITIONAL FINANCING
While we have some revenue sources, we do not think these sources will
generate sufficient funds to continue our operations until commercialization of
our product candidates. In addition, changes in our research and development
plans or other events affecting our operations may significantly increase our
capital requirements over current projections. We cannot be certain that
expected revenues will materialize, or that other financing will be available
on acceptable terms.
We will need to raise additional capital in order to continue our
research and development programs, conduct preclinical and clinical testing of
our product candidates and conduct full scale manufacturing of any products that
we may develop. The timing and degree of any future requirements will depend
on numerous factors, including:
- the progress of our research and development programs;
- the progress of preclinical and clinical testing;
- the time and costs involved in obtaining regulatory approvals;
- the cost of filing, prosecuting, defending and enforcing any patent
claims and other intellectual property rights;
- competing technological and market developments;
- changes in our existing research relationships;
- our ability to establish collaborative marketing arrangements; and
development of commercialization activities and arrangements.
Based on current projections, we estimate that our existing capital
resources, research revenue and revenue from product sales will be sufficient
to meet our cash requirements for approximately fifteen months. Whether we
can continue to operate beyond such period will depend upon our ability to
generate substantial operating revenue from license fees and other sources or
procure additional funding. We cannot be sure that our product candidates
will prove successful or generate significant sales or earnings in the future
or that, if needed, we will be able to obtain future funding on reasonable
terms, if at all, or at the appropriate time for our planned activities.
If adequate funds are not available, we may be required to delay,
reduce the scope of or eliminate one or more of our research or development
programs; to obtain funds through arrangements with collaborative partners or
others that may require us to relinquish rights to certain of our technologies,
product candidates or products that we would otherwise seek to develop or
commercialize ourselves; or to license the rights to such products on terms
that are less favorable to us than might otherwise be available. If we raise
additional funds by issuing equity securities, this may result in further
dilution to our existing stockholders. In addition, any future investors could
demand (and we may have to grant) rights superior to those of our existing
stockholders.
RISKS ASSOCIATED WITH COLLABORATIVE ARRANGEMENTS
Part of our strategy for the development, clinical testing and
commercialization of our products is to license certain companies to use our
technologies. The success of these third parties in performing their
responsibilities under the license agreements may affect the timing and amount
of license fee payments, royalties and revenues from product sales, and we
cannot assure you that such collaborations will be successful. We may not be
able to establish additional acceptable collaborative arrangements or license
agreements should we deem this necessary to develop and commercialize our
product candidates, nor can we assure you that such future arrangements will
be successful.
PATENTS AND PROPRIETARY RIGHTS
We cannot be sure that our current patents or patents that issue from
any of our pending applications will not be challenged, invalidated or circum-
vented. Although we are not aware of any issued third party patents which
would interfere with development of any of our products, we cannot be certain
that we will not infringe on existing or future patents owned by others or that
third parties will not bring suit against us for infringement of such patents.
CSL International ACN ("CSL") and Seed Capital Inc. filed an opposition with
the European Patent Office ("EPO")on the issuance of our QS-21 patent in Europe.
At a hearing before the EPO in October of 1998, we prevailed on all points
raised in the opposition. CSL may appeal the EPO's decision, and, though we
do not believe that CSL's claims have any merit or are likely to succeed,
there can be no assurance that we will prevail in any future actions taken to
attack the validity of our patents.
Patent litigation can be extremely costly and time consuming, but may
be necessary for us to enforce our patents or defend against claims by third-
parties.
We also rely extensively on trade secrets and other unpatented
proprietary technology. We attempt to protect our proprietary technology in
part by confidentiality agreements with our employees, consultants, advisors
and collaborators. We cannot assure you that the other parties will not
violate these agreements, that we will have adequate remedies, or that our
trade secrets will not otherwise become known or independently developed by
competitors.
COMPETITION AND TECHNOLOGICAL CHANGE
The biotechnology and pharmaceutical industries are subject to rapid
and significant technological change. Our competitors in the United States
and abroad are numerous. Our competitors include, among others, major
pharmaceutical companies, specialized biotechnology firms, universities and
other research institutions. Specifically, other adjuvants which could
compete with our Stimulon(tm) adjuvants are under development by Ribi
ImmunoChem Research, Inc., Corixa Corporation, AVANT Immunotherapeutics, Inc.
and Chiron Corporation. Our competitors may succeed in developing
technologies and products that are more effective than any which we are
developing or that would render our technology and products obsolete and non-
competitive.
Many of our competitors have substantially greater financial and
technical resources than we do in:
- production and marketing;
- conducting clinical trials; and
- obtaining regulatory approvals.
If we begin significant commercial sales of our products, we will also
be competing with respect to manufacturing and marketing capabilities, areas in
which we have limited experience.
GOVERNMENT REGULATION; NO ASSURANCE OF REGULATORY APPROVAL
Our research and development activities and products are subject to
extensive and rigorous regulation by the federal government, principally the FDA
and USDA, and by state and local governments. We intend to market our products
in other countries, and foreign governments may also impose stringent
regulations. We must complete all appropriate regulatory clearance processes
before commercializing any of our product candidates, which is lengthy and
expensive. We cannot be sure that we will obtain necessary regulatory approvals
on a timely basis, if at all, for any of our product candidates.
The current regulatory framework may change or additional regulations
may arise at any stage during our product development, which may affect our
ability to obtain approval as anticipated, delay the submission or review of an
application or require additional expenditures. Even if regulatory approval of
the drug is granted, the approval may limit the drug to certain uses or
"indications." Approved drugs, drug manufacturers and manufacturing facilities
are also subject to continual review and periodic inspections by the FDA or
foreign regulatory agencies, even after the drug is on the market. As a
manufacturer, we must spend considerable time, money and effort, especially in
the areas of production and quality control, to comply with FDA or foreign
manufacturing regulations. Later discovery of previously unknown problems with
a product or facility may result in restrictions being placed
on that product or us, including forcing a withdrawal of the product from the
market. Our failure to comply with applicable regulatory requirements could,
among other things, result in fines, suspensions of regulatory approvals,
product recalls, operating restrictions and criminal prosecution. We are
also subject to numerous environmental, health and workplace safety laws
and regulations, including those related to laboratory procedures, exposure
to blood-born pathogens, and the handling of bio-hazardous materials.
MANUFACTURING LIMITATIONS
We have limited capability to manufacture products for commercial use.
We may need to construct additional manufacturing facilities or to have another
company manufacture our products. We do not guarantee that we could do either
at a cost low enough to enable us to obtain an appropriate profit margin.
If we decide to manufacture additional products ourselves, we will be
subject to regulatory requirements and will require substantial additional
capital. The FDA or other regulatory agency may seek to subject these
products to more extensive regulation.
LIMITED SALES AND MARKETING EXPERIENCE
We have very limited experience in sales, marketing and distribution of
products. We currently do not sell any products directly. Instead, we sell our
feline leukemia vaccine through our partner Virbac which is responsible
for all sales and marketing of that product. In order to distribute our
products we will most likely have to enter into collaborations with third
parties. We may be unable to find a suitable marketing partner or to enter
into a marketing arrangement which would be economically advantageous to the
Company.
DEPENDENCE ON RETENTION AND ATTRACTION OF KEY EMPLOYEES
Our product development and marketing plans depend heavily on retaining
existing management and the ability to hire additional qualified management and
operating personnel. Recruiting and retaining qualified scientific personnel to
perform research and development work is critical to our success. Loss of our
key personnel would likely delay the achievement of development objectives and
will have a negative affect on our business. We do not maintain any key person
life insurance policies. We face serious competition for qualified individuals
from numerous pharmaceutical and biotechnology companies, and other research
institutions.
PRODUCT LIABILITY AND AVAILABILITY OF INSURANCE
Drugs used in clinical trials and drugs sold on the market may expose
us to damages claims and adverse publicity resulting from the use of such
products. We have limited product liability coverage for clinical research
use of product candidates such as the Stimulon(tm) adjuvants and Quilvax(tm)
and Quilimmune(tm) products. We also maintain product liability insurance for
the commercial sale of our feline leukemia vaccine, and we intend to obtain
similar coverage for new products if and when they are commercialized. We
may not be able to afford to buy enough liability insurance to protect us
against all of the product liability losses that could possibly occur, and we
cannot guarantee that any such insurance would provide us with sufficient
protection against a product liability claim.
HAZARDOUS MATERIALS; ENVIRONMENTAL MATTERS
Our research and development activities and manufacturing processes
involve the controlled use of hazardous, controlled and radioactive materials.
Although we believe that our safety procedures for handling and disposing of
such materials comply with the standards required under local, state and
federal regulations, there is still a risk of accidental contamination or
injury, or negligent disposal by third parties. If there was such an
accident, we could be held liable for any damages that result. Those
liabilities may exceed our resources. Although we believe that we are in
compliance with applicable and environmental laws and regulations and
currently do not expect to have to spend significant amounts of money
for environmental control facilities, we may be required to do so to
comply with environmental laws and regulations in the future.
UNCERTAINTY RELATED TO PRICING OF HEALTH CARE PRODUCTS AND REIMBURSEMENT
Our ability to successfully sell our products depends in part on the
extent to which reimbursement for the cost of such products and related
treatments will be available from government, health administration
authorities, private health coverage insurers, HMOs and other organizations.
Adequate third-party coverage may not be available to allow us to obtain
satisfactory price levels for third-party payor reimbursements. Government
and other third-party payors are increasingly attempting to contain health
care costs by limiting both coverage and the level of reimbursement for new
products. If adequate coverage and reimbursement levels are not provided by
government and third-party payors for uses of our product, the market
acceptance of these products will be more difficult. We cannot guarantee
that our corporate partners' products, if any, will be considered cost-
effective or that adequate reimbursement will be available to enable us
or our corporate partners to make a profit.
VOLATILITY OF STOCK PRICE; LIMITED TRADING VOLUME
The market price of our common stock has been and is likely to continue
to be volatile. The market price can be influenced by factors such as
announcements by us or our competitors of technological innovations, new
commercial products, major financing agreements, patent or proprietary right
developments, public concern as to the safety of biotechnology, and period to
period fluctuations in financial results.
There is limited trading volume in our common stock and limited
liquidity. We cannot guarantee that greater trading volume or a more
active market for the common stock will develop.
POTENTIAL ANTI-TAKEOVER DEVICES
Certain provisions of our charter documents, our Shareholder Rights
Plan and Delaware General Corporation law may have the effect of delaying,
discouraging, inhibiting or preventing an attempt by a third party to obtain
control of Aquila by means of a tender offer, business combination, proxy
contest or otherwise. The terms of the members of our board expire in
different years, thus making it more difficult for a party waging a proxy
contest to obtain control of a majority of the board. In addition,
our Shareholder Rights Plan discourages any hostile takeover by giving
existing stockholders the right to buy shares in either the Company or
any acquirer at a price that could cause massive dilution.
USE OF PROCEEDS
Assuming a sale price of $2.00 and the sale of 750,000 shares, we
estimate that the net proceeds received from the sale of shares offered will be
approximately $1,475,000. The Company currently expects to use the net
proceeds for general corporate purposes that may include funding repayment of
debt or operations. Until applied to any use, the net proceeds of this
offering will be invested in high quality interest bearing investments or
deposit accounts.
PLAN OF DISTRIBUTION
We are offering up to 750,000 shares of our Common Stock directly to a
limited number of investors. Simultaneously with the filing of the
Registration Statement and in accordance with the provisions of Rule 134 under
the Securities Act of 1933, as amended, we made a public announcement of the
filing of the Registration Statement. After the filing, officers of Aquila
discussed the offering with our largest shareholders. It is anticipated
that an agreement to purchase the shares will be negotiated by our officers
and entered into with at least one of our large shareholders promptly upon
the Registration Statement becoming effective and that the shares will be
delivered shortly thereafter.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 30,500,000 shares of common
stock, $0.01 par value per share, and 5,000,000 shares of preferred stock, $0.01
par value per share. As of June 2, 1999, there were 6,996,738 shares of
common stock outstanding held of record by 4,847 record holders. We have not
issued any shares of preferred stock.
COMMON STOCK
Each common stockholder is entitled to one vote per share on all matters to be
voted upon by the stockholders. Subject to preferences that may be applicable
to any outstanding preferred stock, the common stockholders are entitled to
receive ratably any dividends that are declared from time to time by the Board
of Directors out of legally available funds. In the event of liquidation,
dissolution or winding up, the holders of our common stock are entitled to
share ratably in all assets remaining after payment of liabilities, subject
to prior rights of preferred stock, if any, then outstanding. The common
stock has no pre-emptive or conversion rights or other subscription rights,
other than those associated with the Shareholder Rights Agreement described
below. All outstanding shares of common stock are fully paid and
nonassessable.
CERTAIN PROVISIONS TO DISCOURAGE OR PREVENT COERCIVE TAKEOVERS
Certain provisions of our charter documents could make the acquisition
of Aquila and the removal of incumbent officers and directors more difficult.
These provisions are expected to discourage coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control
of us to first negotiate with us. We believe that the benefits of increased
protection of our potential ability to negotiate with the proponent of an
unfriendly or unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging these proposals, because, among other things,
negotiation of these proposals could result in an improvement of their terms.
Our bylaws provide for a classified board of directors divided into
three classes, with staggered three-year terms. As a result, only one class
of directors will be elected at each annual meeting of stockholders with the
other classes continuing for the remainder of their respective three-year
terms. The classification of the board of directors may make it more
difficult for existing stockholders to replace the board of directors as
well as for another party to obtain control of us by replacing the board
of directors. Since the board of directors has the power to retain and
discharge officers, the provisions could also make it more difficult for
existing stockholders or another party to effect a change in management.
We are subject to the provisions of Section 203 of the Delaware
law. In general, the statute prohibits a publicly held Delaware corporation
from engaging in a "business combination" with an "interested stockholder"
for a period of three years after the date that the person became an
interested stockholder. These transactions may be permitted if the
business combination or the transaction in which the person became an
interested stockholder occurs after the interested stockholder owns 85% of
the voting stock of the corporation or if the stockholders or directors
approve the transaction. Generally, a "business combination" includes a
merger, asset or stock sale, or other transaction resulting in a financial
benefit to the stockholder. Generally, an "interested stockholder is a person
who, together with affiliates and associates, owns (or within three years
prior, did own) 15% or more of the corporation's voting stock. These
provisions may have the effect of delaying, deferring or preventing a change
in control of us without further action by the stockholders.
Aquila has in place a shareholder rights plan which is designed to distribute
common stock purchase rights to holders of Aquila's common stock if a person
or group:
- acquires beneficial ownership of fifteen percent or more of Aquila's
outstanding stock; or
- acquires beneficial ownership of ten percent or more of Aquila's
outstanding stock and is deemed by our board of directors to be a
person or group whose ownership could have material adverse
consequences for Aquila, our property or our stockholders; or
- commences a tender offer which would result in ownership as
described in the two situations above.
The plan expires June 2, 2008 and provides for the issuance of common
stock in Aquila or the acquiring company equal in value to twice the exercise
price for each right. The dilutive effect of this transaction is intended
to deter inadequate takeover bids.
EXPERTS
The consolidated financial statements of Aquila Biopharmaceuticals Inc.
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
for the year ended December 31, 1998 have been incorporated herein in reliance
on the report of PricewaterhouseCoopers LLP given on the authority of said firm
as experts in accounting and auditing.
LEGAL MATTERS
The legality of the shares to be sold hereunder will be passed upon by
Bowditch & Dewey, LLP, Worcester, Massachusetts.
TABLE OF CONTENTS
Where You Can Find More Information 1
Information Incorporated By Reference 1
Prospectus Summary 2
Forward-Looking Statements 2
Risk Factors 3
Use of Proceeds 7
Plan of Distribution 7
Description of Capital Stock 7
Experts 9
Legal Matters 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 17. Undertakings.
The undersigned registrant 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 15(d) of the Securities and Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan's
Annual Report pursuant to Section 15(d) of the Securities and 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.
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 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.
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-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Framingham, The Commonwealth of Massachusetts, on
July 12, 1999.
AQUILA BIOPHARMACEUTICALS, INC.
By: /s/ Alison Taunton-Rigby
Alison Taunton-Rigby
President and Chief
Executive Officer
By: /s/ James L. Warren
James L. Warren
Treasurer, Chief Financial
Officer and Chief 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.
Alison Taunton-Rigby, Director
Jeffrey T. Beaver, Director
Keith J. Dorrington, Director
Elliott D. Hillback, Jr., Director
Robert J. Carpenter, Director
By: /s/ Alison Taunton-Rigby July 12, 1999
(Alison Taunton-Rigby as attorney-in-fact for each of
the persons indicated pursuant to a power of attorney
previously filed with the Securities and Exchange Commission)
