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. [X]
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
Proposed Proposed
Title of Shares Amount To Be Maximum Maximum Amount Of
To Be Registered Registered Aggregate Price Aggregate Registration
Per Unit(1) Offering Fee
Price(1)
Common 500,000 $3.90625 $1,953,125 $516
Stock, par
value $0.01
per share
(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 April
20, 2000.
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.
PROSPECTUS
500,000 SHARES
AQUILA BIOPHARMACEUTICALS, INC.
COMMON STOCK
State of Wisconsin Investment Board (the "Selling
Shareholder") may sell up to 500,000 shares of common
stock, $.01 par value per share, of Aquila
Biopharmaceuticals, Inc. ("Aquila" or the "Company").
Aquila will not receive any of the proceeds from the sale
of shares by the Selling Shareholder.
Aquila's common stock is traded on the NASDAQ National
Market System under the symbol "AQLA". On April 20, 2000,
the last reported sale price for the common stock on the
NASDAQ National Market was $3 15/16 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 APRIL 20, 2000.
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, 1999; and
- - Description of the common stock contained in Aquila's
Registration Statement on Form 8-A.
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
controlling 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 500,000 shares for the account
of the Selling Shareholder
Common Stock Outstanding 8,506,915 shares
as of March 29, 2000
Use of Proceeds Proceeds are solely for the
account of the
Selling Shareholder, 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 1999 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 United States
Department of Agriculture
("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 United States Food and Drug
Administration ("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 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 (15) 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.
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, we have
competition from other
adjuvants which could compete with our Stimulon(tm)
adjuvant. Adjuvants are under development by Corixa
Corporation, AVANT Immunotherapeutics, Inc., Chiron
Corporation, and Coley Pharmaceutical Corp.
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 S.A. 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. Although we maintain a key person
life insurance policy on our President and Chief Executive
Officer, Dr. Alison Taunton-Rigby, loss of our key
personnel would likely delay the achievement of development
objectives and will have a negative affect on our business.
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 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
Shareholder.
SELLING SHAREHOLDER
Our registration of the shares of common stock does not
necessarily mean that the Selling Shareholder 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 March 29, 2000, by the Selling
Shareholder, on which date 8,006, 915 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 the Selling Shareholder has been obtained from
the Selling Shareholder. The Selling Shareholder has been
an owner of more than five percent (5%) of Aquila's common
stock throughout the last three (3) years. Other than
through its ownership of Aquila common stock, the Selling
Shareholder does not have, or within the past three (3)
years has not had, any position, office or other material
relationship with Aquila. Because the Selling Shareholder
may sell all or some of the shares of common stock
beneficially owned by it, we can only give an estimate
(assuming the Selling Shareholder sells all of its shares
offered hereby) as to the number of shares of common stock
that will be beneficially owned by the Selling Shareholder
after this offering. In addition, the Selling Shareholder
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 it provided the
information regarding the shares of common stock
beneficially owned by it, all or a portion of the shares of
common stock beneficially owned by it in transactions
exempt from the registration requirements of the Securities
Act of 1933.
Amount Of Amount to be Percentage
Securities Offered for Of Class to
Owned Prior The Security Be Owned
Name To Offering Holders Account After
The Offering
State of Wisconsin [1,580,741] 500,000 [12.7%]
Investment Board
PLAN OF DISTRIBUTION
The shares of common stock may be sold from time to
time by the Selling Shareholder 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 Shareholder may offer its
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 Market System,
- - 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
Shareholder hereunder, will be sold from time to time
directly by the Selling Shareholder. Alternatively, the
Selling Shareholder may from time to time offer shares of
common stock to or through underwriters, brokers/dealers or
agents. The Selling Shareholder and any underwriters,
brokers/dealers or agents that participate in the
distribution of the shares of common stock may be deemed to
be an "underwriter" 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 underwriter 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 Shareholder may not sell all of
the shares. The Selling Shareholder 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, the
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 Shareholder 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 issuance
and registration of the shares hereunder. Such expenses
are estimated to be $10,516. The Selling Shareholder 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, 1999 have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, 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
Shareholder 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 Shareholder 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 $516
NASD listing fee $5,000
Legal Fees and expenses* $5,000
Accounting fees and expenses* $0
Total $10,516
_________
* Estimated
The Selling Shareholder 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
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 PricewaterhouseCoopers LLP
*24.1 Power of Attorney (included on signature page)
_____________________
* Filed herewith
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 Town of
Framingham, The Commonwealth of Massachusetts, on April 20,
2000.
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 April 20, 2000
Jeffrey T. Beaver, Director
/s/ Robert J. Carpenter April 20, 2000
Robert J. Carpenter, Director
/s/ Keith J. Dorrington April 20, 2000
Keith J. Dorrington, Director
/s/ Elliott D. Hillback, Jr. April 20, 2000
Elliott D. Hillback, Jr., Director
/s/ Alison Taunton-Rigby April 20, 2000
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 PricewaterhouseCoopers LLP
*24.1 Power of Attorney (included on signature page)
_____________________
* Filed herewith
EXHIBIT 5.1
April 24, 2000
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 April 24, 2000 by Aquila Biopharmaceuticals, Inc. (the
"Company") under the Securities Act of 1933, as amended, for
registration under said Act of 500,000 shares of the common stock,
$.01 par value, (the "Common Stock") of the Company for the
account of a selling shareholder.
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 covered by the
Registration Statement have been validly authorized for issuance
and are 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, LLP
BOWDITCH &
DEWEY, LLP
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-3 to register 500,000
shares of common stock of Aquila Biopharmaceuticals, Inc.
(the "Company") of our report dated February 8, 2000
(except for Note 19, as to which the date is March 24,
2000) relating to the financial statements, which appears
in the Company's Annual Report on Form 10-K for the year
ended December 31, 1999. We also consent to the reference
to us under the heading "Experts" in such Registration
Statement.
\s\ PricewaterhouseCoopers LLP
Boston, Massachusetts
April 20, 2000
