Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-3
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: From time to time 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.
CALCULATION OF REGISTRATION FEE
Title of Shares Amount Proposed Proposed Amount of
To Be Registered to be Maximum Maximum Registration
Registered Aggregate Aggregate Fee(2)
Price Per Offering
Unit(1) Price(1)
Common Stock, par
value $0.01
per share 250,000 $2.00 $500,000 $139.00
(1) Estimated solely for the purpose of computing the amount of
the registration fee pursuant to Rule 457(c) under the Securities Act of
1933, on the basis of the average of the high and low sale prices reported
on the NASDAQ National Market Automated Quotation System on May
27, 1999.
(2) Paid on June 4, 1999.
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
250,000 SHARES
AQUILA BIOPHARMACEUTICALS, INC.
COMMON STOCK
Selling Shareholders identified in this Prospectus may sell
up to 250,000 shares of Aquila common stock. Aquila will not receive
any of the proceeds from the sale of shares by the Selling Shareholders.
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 JUNE ___, 1998.
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 with the SEC
under the Securities Exchange Act of 1934.
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 250,000 shares for the
account of Selling Shareholders
Common Stock Outstanding 6,996,738 shares
as of June 2, 1999
Use of Proceeds Proceeds are solely for the account
of the Selling Shareholders, and
Aquila will not receive any proceeds.
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 development; 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 shareholders.
In addition, any future investors could demand (and we may have to grant)
rights superior to those of our existing shareholders.
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
circumvented. 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 noncompetitive.
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 shareholders the right to buy shares in either the
Company or any acquirer at a price that could cause massive dilution.
USE OF PROCEEDS
Aquila will not receive any proceeds from the sale of the shares of
common stock offered by the Selling Shareholders.
SELLING SHAREHOLDERS
In connection with our acquisition of VacTex, Inc. in April 1998,
we issued debentures to the former shareholders of VacTex in partial
payment for their stock in VacTex. These former VacTex shareholders
have the right to "put" the debentures back to Aquila in exchange for a
predetermined amount of cash after April 13, 1999. Some of those former
VacTex shareholders have agreed to exchange these debentures for
common stock of Aquila. Our registration of the shares of common stock
does not necessarily mean that the Selling Shareholders will sell all or any
of the shares. The following table sets forth certain information regarding
the beneficial ownership of our common stock as of June 2, 1999, by each
of the Selling Shareholders, on which date 6,996,738 shares of common
stock were outstanding (excluding all of the shares which are being
registered hereunder).
The information provided in the table below with respect to each
Selling Shareholder has been obtained from such Selling Shareholder.
Except as otherwise disclosed below, none of the Selling Shareholders
has, or within the past three (3) years has had, any position, office or other
material relationship with Aquila. Because the Selling Shareholders may
sell all or some of the shares of common stock beneficially owned by
them, we can only give an estimate (assuming each Selling Shareholder
sells all of his, her or its shares offered hereby) as to the number of shares
of common stock that will be beneficially owned by the Selling
Shareholders after this offering. In addition, the Selling Shareholders may
have sold, transferred or otherwise disposed of, or may sell, transfer or
otherwise dispose of, at any time or from time to time since the date on
which they provided the information regarding the shares of common
stock beneficially owned by them, all or a portion of the shares of
common stock beneficially owned by them in transactions exempt from
the registration requirements of the Securities Act of 1933.
Name Amount Of Amount to be Percentage
Securities Offered for Of Class to
Owned Prior Holders Account Be Owned
To Offering After The
The Security Offering
NEA Ventures 1996, L.P. 2,142 2,142 *
New Enterprise
Associates VI, L.P. 585,676 211,500 5.34%
*Less than 1%
PLAN OF DISTRIBUTION
The shares of common stock may be sold from time to time by the
Selling Shareholders in one or more transactions at fixed prices, at market
prices at the time of sale, at varying prices determined at the time of sale
or at negotiated prices. The Selling Shareholders may offer their shares of
common stock in one or more of the transactions:
- on any national securities exchange or quotation service on
which the common stock may be listed or quoted at the
time of sale, including the NASDAQ National Stock
Market,
- in the over-the-counter market,
- in private transactions,
- through options,
- by pledge to secure debts and other obligations, or
- a combination of any of the above transactions.
If required, we will distribute a supplement to this Prospectus to
describe material changes in the terms of the offering.
The shares of common stock to be offered by the Selling
Shareholders hereunder, will be sold from time to time directly by the
Selling Shareholders. Alternatively, the Selling Shareholders may from
time to time offer shares of common stock to or through underwriters,
brokers/dealers or agents. The Selling Shareholders and any underwriters,
brokers/dealers or agents that participate in the distribution of the shares of
common stock may be deemed to be "underwriters" within the meaning of
the Securities Act of 1933. Any profits on the resale of shares of common
stock and any compensation received by any underwriter, broker/dealer or
agent may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933. Also, any underwriters will be subject to
prospectus delivery requirements of the Securities Act.
Any shares covered by this Prospectus which qualify for sale
pursuant to Rule 144 of the Securities Act of 1933 may be sold under Rule
144 rather than pursuant to this Prospectus. The Selling Shareholders may
not sell all of the shares. The Selling Shareholders may transfer, devise or
gift such shares by other means not described in this Prospectus.
To comply with the securities laws of certain jurisdictions, the
common stock must be offered or sold only through registered or licensed
brokers or dealers. In addition, in certain jurisdictions, the common stock
may not be offered or sold unless they have been registered or qualify for
sale or an exemption is available and complied with.
Under the Securities Exchange Act of 1934, any person engaged in
a distribution of the common stock may not simultaneously engage in
market-making activities with respect to the common stock for nine (9)
business days prior to the start of the distribution. In addition, each
Selling Shareholder and any other person participating in a distribution
will be subject to the Securities Exchange Act of 1934 which may limit the
timing of purchases and sales of common stock by the Selling
Shareholders or any such other person. These factors may affect the
marketability of the common stock and the ability of brokers or dealers to
engage in market-making activities.
We will pay all the expenses incident to the offering and sale of
common stock to the public. Such expenses are estimated to be $18,139.
The Selling Shareholders will pay all underwriting discounts and selling
commissions, if any.
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 by the Selling Shareholders
and purchased by the purchasers 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
Selling Shareholders 7
Plan of Distribution 8
Experts 9
Legal Matters 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an itemized statement of all expenses
in connection with the issuance and distribution of the securities being
registered, to be borne by the registrant:
Registration fee $139
NASD filing fee $5,000
Legal Fees and expenses* $10,000
Accounting fees and expenses* $3,000
Total $18,139
_________
* Estimated
The Selling Shareholders will be responsible for any additional
fees incurred as a result of the distribution of these securities.
Item 15. 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
Delaware Court of Chancery or the court in which such action is brought
shall deem proper.
Article THIRD of the Company's By-laws provides for
indemnification of its directors, officers, employees or agents to the fullest
extent provided by laws.
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 his or her fiduciary duty as a director to the extent
provided either (i) in the order of the United States Bankruptcy Court for
the District of Massachusetts confirming the Reorganization Plan of the
Company's predecessor Cambridge Biotech Corporation, but in any event,
to no greater extent that is permitted by Section 102(b)(7) or any successor
similar provision in the Delaware General Corporation Law, or (ii) by the
Delaware General Corporation Law.
The Company maintains an executive liability indemnification
policy. Subject to the policy conditions, the insurance provides coverage
for an amount payable by the Company to its directors and officers
pursuant to the Company's By-laws.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, the
registrant has been informed 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.
Item 16. Exhibits.
3.1 Amended and Restated Certificate of Incorporation,
effective July 25, 1996 (incorporated by reference to
Exhibit 2 to Form 8-K, dated July 18, 1996, File No. 0-
12081).
3.2 Certificate of Amendment of Amended and Restated
Certificate of Incorporation, effective March 24, 1997 (
incorporated by reference to Exhibit 3.2 to Annual Report
on Form 10-K for fiscal year ended December 31, 1996,
File No. 0-12081).
3.3 By-laws (incorporated by reference to Exhibit 2 to Form 8-K,
dated July 18, 1996, File No. 0-12081).
4.1 Specimen Certificate representing common stock of the
Company (incorporated by reference to Exhibit 4.1 to From
8-K, dated October 21, 1996, File No. 0-12081).
5.1 Opinion of Bowditch & Dewey, LLP
23.1 Consent of Bowditch & Dewey, LLP (included in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (included on signature page)
Item 17. Undertakings.
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 the 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 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include
any financial statements required by Rule 3-19 of this
chapter at the start of any delayed offering or throughout a
continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Act need not
be furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as
the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form
F-3, a post-effective amendment need not be filed to
include financial statements and information required by
Section 10(a)(3) of the Act or Rule 3-19 of this chapter if
such financial statements and information are contained in
periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
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.
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-3 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 June 4, 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 date indicated. The persons whose signatures appear
below do hereby make, constitute and appoint Alison Taunton-Rigby and
Jane V. Hawkes and each of them their true and lawful attorneys and
agents with full power and authority on their 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 they do ratify
and confirm all said agents and attorneys may do or cause to be done by
virtue hereof.
/s/ Jeffrey T. Beaver May 27, 1999
Jeffrey T. Beaver, Director
/s/ Robert J. Carpenter June 4, 1999
Robert J. Carpenter, Director
/s/ Keith J. Dorrington May 28, 1999
Keith J. Dorrington, Director
/s/ Elliott D. Hillback, Jr. June 4, 1999
Elliott D. Hillback, Jr., Director
/s/ Alison Taunton-Rigby June 4, 1999
Alison Taunton-Rigby, Director
Exhibit Index
3.1 Amended and Restated Certificate of Incorporation, effective July
25, 1996 (incorporated by reference to Exhibit 2 to Form 8-K, dated July
18, 1996, File No. 0-12081).
3.2 Certificate of Amendment of Amended and Restated Certificate of
Incorporation, effective March 24, 1997 ( incorporated by reference to
Exhibit 3.2 to Annual Report on Form 10-K for fiscal year ended
December 31, 1996, File No. 0-12081).
3.3 By-laws (incorporated by reference to Exhibit 2 to Form 8-K,
dated July 18, 1996, File No. 0-12081).
4.1 Specimen Certificate representing common stock of the Company
(incorporated by reference to Exhibit 4.1 to Form 8-K, dated October 21,
1996, File No. 0-12081).
5.1 Opinion of Bowditch & Dewey, LLP
23.1 Consent of Bowditch & Dewey, LLP (included in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (included on signature page)
Exhibit 5.1
Aquila Biopharmaceuticals, Inc.
175 Crossing Boulevard
Framingham, Massachusetts 01702
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-3 (the "Registration Statement") filed on June 4, 1999 by
Aquila Biopharmaceuticals, Inc. (the "Company") under the Securities Act of
1933, as amended, for registration under said Act of 250,000 shares of the
common stock, $.01 par value (the "Common Stock"), of the Company for the
account of selling shareholders.
We are familiar with the Restated Certificate of Incorporation of the
Company, as amended, the corporate minute book and the by-laws of the Company,
as amended, 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 of the Company covered by the Registration Statement
have been validly authorized for issuance and will be, upon issuance, 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 prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
/s/ Bowditch & Dewey
BOWDITCH & DEWEY, LLP
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 to register 250,000 share of common stock of our report
dated February 11, 1999 relating to the consolidated financial statements,
which appears in Aquila Biopharmaceuticals Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1998. We also consent to the reference to us
under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
June 4, 1999
