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As filed with the Securities and Exchange Commission on February 9, 1999.
Registration No. 333-69689
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARIAD PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-3106987
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
26 LANDSDOWNE STREET
CAMBRIDGE, MASSACHUSETTS 02139-4234
(617) 494-0400
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
JAY R. LAMARCHE
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ARIAD PHARMACEUTICALS, INC.
26 LANDSDOWNE STREET
CAMBRIDGE, MASSACHUSETTS 02139-4234
(617) 494-0400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
JONATHAN L. KRAVETZ, ESQUIRE
MINTZ, LEVIN COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
(617) 542-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practical 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, 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
<TABLE>
<CAPTION>
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered(1) Offering Price per Share Aggregate Offering Price(2) Registration Fee(3)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 5,933,362 $1.734375 $10,290,674.72 $2,860.81
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</TABLE>
(1) Includes shares of common stock to be issued upon conversion of the
Company's series C convertible preferred stock, par value $.01 per share and an
indeterminate number of additional shares of common stock as may from time to
time become issuable upon conversion of the series C convertible preferred stock
by reason of stock splits, stock dividends and other similar transactions, which
shares are registered hereunder pursuant to Rule 416, but does not cover an
indeterminate number of common shares based on the operation of the conversion
formula of the series C convertible preferred stock.
(2) The price of $ 1.734375 per share, which was the average of the high and low
prices of the common stock reported by the Nasdaq Stock Market on December 22,
1998, is set forth solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended.
(3) Previously paid to the Securities and Exchange Commission.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
Subject to Completion, dated February 9, 1999
ARIAD PHARMACEUTICALS, INC.
5,933,362 SHARES OF COMMON STOCK
- - We have registered up to 5,933,362 THIS INVESTMENT INVOLVES
shares of our common stock for sale A HIGH DEGREE OF RISK.
by the selling stockholders listed YOU SHOULD PURCHASE
on page 12 of this prospectus. SHARES ONLY IF
YOU CAN AFFORD
- - We will not receive any of the A COMPLETE LOSS.
proceeds from the selling SEE "RISK FACTORS"
stockholders' sale of their common BEGINNING ON PAGE 4.
stock.
OUR COMMON STOCK TRADES ON THE NASDAQ NATIONAL MARKET UNDER THE SYMBOL "ARIA."
ON FEBRUARY 8, 1999, THE CLOSING SALE PRICE OF ONE SHARE OF OUR COMMON STOCK AS
QUOTED ON THE NASDAQ NATIONAL MARKET WAS $1.78.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________ ____, 1999
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PROSPECTUS SUMMARY
You must also consult the more detailed financial statements, and notes to
financial statements, incorporated by reference in this prospectus. This
prospectus contains forward-looking statements and actual results could differ
materially from those projected in the forward-looking statements as a result of
certain of the risk factors as outlined in this prospectus. Investing in our
common stock is very risky. You should be able to bear a complete loss of your
investment. You should carefully consider the information set forth under the
heading "Risk Factors."
THE COMPANY
ARIAD is working to discover and develop novel and proprietary drugs based
on our understanding of the inner workings of the cells and the genes involved
in disease. Our approach includes a series of interrelated steps:
Functional Genomics
- - We identify genes that may cause, prevent or play a role in certain
diseases.
- - Based on our understanding of these genes, we identify a molecular target
that could be blocked or activated by a drug.
- - We confirm whether the molecular target, if blocked or activated by a
drug, would be beneficial in treating or preventing a disease.
Structure-Based Drug Design
- - We use high-resolution computerized images of the molecular target to help
us in our drug discovery efforts.
- - Based on our understanding of the molecular target, we design and
synthesize many chemical compounds that could be used as drugs.
- - We also use computer-automated synthesis to make large numbers of chemical
compounds in an effort to accelerate drug discovery.
High Throughput Screening and Pharmacology
- - We evaluate drug candidates in a series of biochemical and cellular tests
and animal models that we have developed.
Drug Optimization
- - Based on an analysis of our high resolution images and the data obtained
from our other experiments, we modify the chemical structure of our drug
candidates with the goal of making them as safe and effective as possible.
Clinical Trials
- - After extensive animal testing, we study drug candidates in humans to
determine whether the drug can be used to treat or prevent the relevant
disease.
We are currently focusing our research and development capabilities on
three areas:
Signal Transduction Inhibitors
We are developing and testing a series of novel and proprietary drugs
designed to block specific molecular targets in bone cells and white blood
cells. These drug candidates may be useful to treat diseases affecting the bones
(e.g., osteoporosis) and the immune system (e.g., rheumatoid arthritis and
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rejection following organ transplants). Beneficial effects of our drug
candidates have been shown in animal models of osteoporosis.
ARIAD Regulated Gene Expression Technology
Our regulated gene expression technology, also known as ARGENT(TM), is a
novel and proprietary system designed to control cellular activities using
drugs. ARGENT(TM) can potentially be applied in:
- - research for discovery of new drugs and new genes;
- - gene and cell therapy; and
- - manufacturing of biological products.
Our leading application of ARGENT(TM) technology is for the controlled
delivery of protein drugs by regulated gene therapy. Our regulated gene therapy
involves two components - needle injections and pills. The injections introduce
new genes into a target organ such as muscle. These genes carry information that
enables the target organ to produce new proteins. One protein is delivered to
the bloodstream to treat or prevent disease ("a therapeutic protein"). The other
proteins constitute a control system. When a patient takes an activating pill,
the production of the therapeutic protein switches on. Thus, the physician is
able to control the therapeutic treatment, both in its duration and its potency,
by varying the frequency and/or dosage of the pill taken by the patient. When
the physician wishes to terminate therapy, the patient stops taking the pill and
production of the therapeutic protein ceases. We have shown that our regulated
gene therapy system works in experiments with animals.
Another application of ARGENT(TM) technology is being developed to improve
the safety and effectiveness of certain types of bone marrow transplants. Bone
marrow transplants from a donor to a patient have proven effective against
certain cancers, especially leukemia, but sometimes result in a specific
complication known as graft-versus-host-disease, where cells from the bone
marrow transplant attack and destroy healthy tissues and organs in the patient.
Our therapy involves installing, prior to the transplant, a "suicide switch"
into the cells which are principally responsible for graft-versus-host-disease.
Should graft-versus-host-disease arise, the patient is given a drug that
activates the suicide switch, killing the cells responsible for
graft-versus-host-disease and ending their attack on healthy tissue. In December
1998, we initiated a Phase 1 clinical study of the activating drug for this
application.
Functional Genomics
We are working to discover new genes and molecular targets that could be
useful in the treatment of diseases of the bones (e.g., osteoporosis) and blood
vessels (e.g., atherosclerosis) and cancer. We anticipate that this information
may be helpful in the discovery of new drugs to treat these diseases. In March
1997, we established a joint venture with Hoechst Marion Roussel, named the
Hoechst - ARIAD Genomics Center, LLC, to identify genes that play a critical
role in these diseases.
Only our product to treat graft-versus-host-disease has progressed to
clinical studies (Phase 1 safety studies). None of our products have been
approved for marketing or sale. We have not received any product revenues to
date.
Our address is ARIAD Pharmaceuticals, Inc., 26 Landsdowne Street,
Cambridge, Massachusetts 02139, and our telephone number is (617) 494-0400.
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RISK FACTORS
Investing in our common stock is very risky. You should be able to bear a
complete loss of your investment. You should carefully consider the following
factors, in addition to other information in this prospectus.
WE MAY NEVER SUCCEED IN DEVELOPING MARKETABLE DRUGS. We are an early stage
company with no product revenues. We are still pursuing research to advance the
specialized technologies we are developing. Ultimately, we hope these
technologies will help us and the companies with whom we collaborate to develop
therapeutic drugs. However, we do not expect to have any drugs on the market for
several years. There is a risk that we may never succeed.
The technologies we are developing are extremely complex. We are exploring
human diseases at the cellular level. We seek to discover what genes within
cells malfunction to help cause disease, what signals are triggered within the
cells during the disease process to cause the cells to react in harmful ways,
and what chemicals (i.e., drugs) can be developed to halt or reverse those
activities within the cells. As with all discovery science, we face much trial
and error. We may fail at numerous stages along the way, including:
- We might not identify the most important signals within the cells;
- Since the signals are made up of a chain of chemical reactions
between proteins within the cell, we may fail to identify a good
intervention point to try to block the signal;
- We may not succeed in developing a chemical capable of blocking the
signal;
- A potential drug, even if it seems to work in animals, may not be
effective, or may even be harmful, when tested in humans;
- Even if we prove through human clinical trials that a drug is safe
and effective in humans, we may not be able to manufacture it
economically; and
- A drug may not be well accepted by doctors and patients, or may be
less effective or accepted than competing drugs made by others.
OUR GENOMICS CENTER MAY NOT SUCCEED. Neither we nor Hoechst Marion Roussel
have any experience in many of the research activities that are undertaken at
our Genomics Center. As a result, our success at the Genomics Center will depend
on whether we can recruit, hire and retain highly skilled scientific personnel
and acquire or license new technologies. Furthermore, as of September 30, 1998,
the Genomics Center had incurred aggregate operating losses of approximately
$9.5 million. Hoechst Marion Roussel has agreed to fund its share and to finance
our share of the costs associated with the Genomics Center through March 31,
2002; thereafter, we will likely need more money to sustain the Genomics Center.
Although Hoechst Marion Roussel has agreed to fund our share of costs in excess
of the amount required by our agreement if such expenditures are approved by
both of us, Hoechst Marion Roussel has no obligation to cover costs beyond what
is required under the agreement.
WE DEPEND ON HOECHST MARION ROUSSEL FOR A SUBSTANTIAL PORTION OF OUR
REVENUES. We rely on Hoechst Marion Roussel to provide significant funding for
our research operations. To finance our share of expenses in the Genomics Center
over the next three years, which is expected to exceed $30 million, we are
largely relying on Hoechst Marion Roussel's obligation to purchase our Series B
preferred stock. In November 1995, we entered into a five year research and
development agreement with Hoechst Marion Roussel under which Hoechst Marion
Roussel is required to make payments to us upon our achievement of certain
research milestones. We may fail to achieve future milestones for payment in a
timely manner, or at
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all. As of December 31, 1998, we had received an aggregate of $24.6 million in
research funding and milestone payments from Hoechst Marion Roussel. Hoechst
Marion Roussel recently announced that it intends to combine with Rhone-Poulenc
Rorer to form a new company called Aventis Pharmaceuticals. If Hoechst Marion
Roussel's combination with Rhone-Poulenc Rorer results in a significant
strategic shift in its business focus, Hoechst Marion Roussel may not perform
its obligations under its agreements with us.
WE DEPEND ON GENOVO FOR OUR GENE TRANSFER TECHNOLOGY. Our joint venture
agreement with Genovo, Inc. obligates Genovo to fund the costs associated with
the development of technology to transfer genes. Our ability to commercialize
certain of our products will depend upon the timing and ability of Genovo to
develop gene transfer technology, the ability of Genovo to acquire it from the
Trustees of the University of Pennsylvania, or our ability to obtain such
technology elsewhere. Furthermore, a potential conflict could arise with
Genovo's strategic partner who has provided most of the Genovo's funding to
date. This strategic partner competes in some of our markets, holds a
significant minority interest in Genovo, and has the ability to influence
certain actions taken by Genovo, including actions which may be adverse to our
joint venture.
OUR DEPENDENCE ON COLLABORATIONS. We depend on collaborations with major
pharmaceutical or biotechnology companies, as well as academic institutions,
licensors and licensees to enhance a number of our drug discovery and
development programs and to fund our capital requirements. These collaborations
may fail. Our success in each of these collaborations will depend on our ability
to enter into collaborations on commercially reasonable terms, the willingness
and ability of outside parties to perform their duties, and the collaborators'
continued motivation in and dedication to their respective programs.
Furthermore, we may not be able to manage existing and future strategic
alliances, maintain confidentiality among strategic partners or prevent the
occurrence of conflicts among strategic partners which could lead to disputes
resulting in significant strain on management resources, legal claims, loss of
reputation, loss of capital or a loss of revenues. In addition, our strategic
partners have a large number of other partners and affiliated and associated
entities, each of whom may be our competitors and may have agreements or
understandings with our partners that may be in conflict with our interests or
rights.
WE MAY NOT BE ABLE TO OBTAIN OR CONVEY NECESSARY LICENSES. Many of the
gene sequences or proteins encoded by those sequences we use in researching and
developing products are, or may become, patented by others. As a result, we may
be required to obtain licenses to technology in order to use or market our
products and some of our product programs may require the use of multiple
proprietary technologies. Obtaining such licenses would require us to make
cumulative royalty payments to several third-parties, potentially reducing
amounts paid to us or making it commercially prohibitive. In our efforts to
obtain proprietary technology rights, we may also have to convey our technology
rights to others. We may not be able to obtain or convey these necessary
licenses on reasonable terms, or at all, which would prevent us from developing
or commercializing our products
We, either directly or through one of our subsidiaries, have entered into
license agreements with Stanford University and Harvard University, Mochida
Pharmaceutical Co., Ltd. and Incyte as well as with others, and have options to
acquire licenses, for technology that we believe is or will be important to our
research and development programs. Each of these licenses obligates us to
exercise diligence in bringing product candidates to market, to make certain
milestone payments (some of which are substantial), and to provide for royalties
(which can be significant). In some instances, we are responsible for the costs
of filing and prosecuting patent applications. The licenses generally expire
upon the earlier of a fixed term of years after the date of the license or the
expiration of the applicable patents, but each license is also terminable by
either party upon a default in the obligations of the other party.
WE HAVE SIGNIFICANT LOSSES AND MAY NEVER BE PROFITABLE. We have incurred
significant operating losses in each year since our inception in 1991, and have
an accumulated deficit of approximately $86 million from our operations through
September 30, 1998. Losses have resulted principally from costs
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incurred in research and development of product candidates, and from general and
administrative costs associated with our operations, including expenses related
to the Genomics Center. We currently have no product revenue, may never be able
to earn such revenue, and may never have profitable operations, even if we are
able to commercialize any of our products. Over the next several years, we will
be required to conduct significant research, development, testing and regulatory
compliance activities that, together with projected general and administrative
expenses, are expected to result in substantial increasing operating losses. If
costs associated with the Genomics Center were to increase beyond what is
currently provided for in the 1997 agreement with Hoechst Marion Roussel, as is
likely, and we finance our share of such costs through a loan from Hoechst
Marion Roussel, our outstanding indebtedness would increase. If our losses
continue and we are unable to obtain required regulatory approvals, and
successfully develop, commercialize, manufacture and market product candidates,
we may never achieve product revenue or profitability.
WE MAY NEED TO RAISE ADDITIONAL FUNDING WHICH MAY NOT BE AVAILABLE. Our
operations to date have consumed substantial amounts of cash. Additional funding
will be needed to:
- continue our research, preclinical testing and clinical
investigation of our product candidates;
- further our pursuit of regulatory approvals;
- file, prosecute, defend and enforce any patent claims and other
intellectual property rights;
- establish manufacturing, marketing and sales capabilities;
- establish collaborative arrangements; and
- cover working capital and operating expenses.
In addition, because our technologies involve considerable uncertainty and we
have a limited history of conducting preclinical studies and have no history of
conducting clinical trials, it may take longer to complete these studies than
those involving more traditional pharmaceuticals. Extended studies may result in
costs substantially greater than anticipated. In addition, we have substantial
fixed commitments under research and licensing agreements, consulting and
employment agreements, lease agreements and long-term debt instruments which,
excluding our funding obligations related to the Genomics Center, currently
aggregate in excess of $8 million per year and may increase. It is uncertain
that we will be able to maintain payments of this capacity beyond 1999 and
changes in our research and development plans or other events affecting our
operating expenses may result in the earlier depletion of our funds.
If our funding is insufficient, we intend to seek additional funding from
collaborations or public or private financings, which may not be available on
terms acceptable to us, or obtainable at all. Insufficient funds may require us
to delay, scale back or eliminate one or more of our research and development
programs or to enter into license arrangements with third parties to
commercialize products or technologies that we would otherwise seek to develop
ourselves. To the extent we raise additional capital by issuing equity
securities, dilution to our holders of common stock may result.
WE DEPEND ON OUR CHIEF EXECUTIVE OFFICER, CHIEF SCIENTIFIC OFFICER AND
OTHER KEY PERSONNEL. Key members of our scientific and management staff,
especially the services of the Chief Executive Officer and Chief Scientific
Officer, are essential to our specialized scientific business. The loss of any
one would significantly delay and may prevent the achievement of research,
development and business objectives. While we have entered into employment
agreements with certain of our key employees, they may not remain with us. We
are also dependent upon consultants, including our scientific advisors, to
assist in formulating our research and development strategy. Substantially all
of the members of our Board of Scientific and Medical Advisors are employed on a
full-time basis by others, primarily by academic or research institutions, and
may have commitments to or consulting or advisory contracts with others that may
limit their availability to us. Any inventions or processes discovered
independently by any such advisor may not become our property and could remain
the property of such person or of such person's employer.
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COMPETITION IN OUR FIELD IS INTENSE AND LIKELY TO INCREASE. Many
well-known pharmaceutical, chemical and specialized biotechnology companies,
academic and research institutions and government agencies, who have
substantially greater capital, research and development capabilities and
experience than us, are presently engaged in:
- developing products based on signal transduction,
- exploring the field of gene therapy,
- pursuing functional genomics, and
- conducting research and development programs for the treatment
of all the disease areas in which we are focused.
Some of these institutions already have drug candidates in clinical trials or in
further advanced preclinical studies than our product candidates, which may
result in effective, commercially successful products. Competing technologies
may render some or all of our programs or future products noncompetitive or
obsolete and we may not be able to make the enhancements to our technology
necessary to compete successfully with newly emerging technologies.
PROTECTION OF PATENTS AND PROPRIETARY RIGHTS IS UNCERTAIN. Our patent
applications and those of our licensors may never issue as patents. In addition,
patents issued to us or our licensors may be challenged and subsequently
narrowed, invalidated or circumvented and may never afford meaningful protection
for our technologies or products. Certain technologies utilized in our research
and development programs are already in the public domain. Moreover, a number of
our competitors have developed technologies, filed patent applications or
obtained patents on technologies that are related to our business and may cover
or conflict with our patent applications. Such conflicts could limit the scope
of the patents that we may be able to obtain or may result in the denial of our
patent applications. If a third-party were to obtain patent or other proprietary
protection for any of these technologies, we may be required to challenge such
protections, terminate or modify our programs that rely on such technologies or
obtain licenses for use of these technologies.
EXTENSIVE GOVERNMENT REGULATION WILL BE REQUIRED FOR OUR PRODUCT
CANDIDATES PRIOR TO MARKETING. To date, we have not submitted an application for
any product candidate to the U.S. Food and Drug Administration, and none of our
product candidates have been approved for commercialization in the United States
or elsewhere. Any product candidate ready for commercialization, would be
subject to an extensive and lengthy governmental regulatory approval process in
the United States and in other countries. We have no history of conducting and
managing the clinical testing necessary to obtain such regulatory approval.
Satisfaction of these regulatory requirements, which includes satisfying the FDA
and foreign regulatory authorities that the product is both safe and effective,
typically takes several years or more depending upon the type, complexity and
novelty of the product and requires the expenditure of substantial resources.
Furthermore, the regulatory requirements governing the Company's potential
products are uncertain. This uncertainty may result in excessive costs or
extensive delays in the regulatory approval process, adding to the already
lengthy review process. Even after such time and expenditures, we may not be
able to obtain regulatory approval for any products we develop. If regulatory
approval of a product is granted, such approval will be limited to those disease
states and conditions for which the product is proven useful, as demonstrated by
clinical trials, and our products will be subject to ongoing regulatory reviews.
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OUR MANAGEMENT AND PRINCIPAL STOCKHOLDERS HAVE A CONCENTRATION OF
OWNERSHIP IN THE COMMON STOCK. Our directors and officers and several five
percent stockholders and their affiliates beneficially own in the aggregate,
shares representing approximately 25% of the outstanding shares of common stock,
series B preferred stock and series C preferred stock. As a result, these
stockholders, acting together, will be able to influence significantly and
possibly control most matters requiring approval by our stockholders. In
addition, our Certificate of Incorporation does not provide for cumulative
voting with respect to the election of directors. Consequently, the present
executive officers, directors and affiliated individuals and entities may be
able to control the election of the members of our Board of Directors. Such a
concentration of ownership could affect the liquidity and have an adverse effect
on the price of the common stock, and may have the effect of delaying or
preventing ARIAD's change in control, including transactions in which
stockholders might otherwise receive a premium for their shares over then
current market prices.
OUR STOCK PRICE IS HIGHLY VOLATILE. As a biopharmaceutical company, we
have experienced significant volatility in our common stock. Factors
contributing to such volatility include:
- results of preclinical studies and clinical trials,
- evidence of the safety or efficacy of pharmaceutical products,
- announcements of new collaborations,
- announcements of technological innovations or new therapeutic
products,
- governmental regulation,
- healthcare legislation and
- developments in patent or other proprietary rights, including
litigation.
Fluctuations in our operating results and general market conditions for
biotechnology stocks could have a significant impact on the volatility of our
common stock price.
OUR COMMON STOCK MAY BE DELISTED FROM THE NASDAQ STOCK MARKET. In order
for our common stock to continue to be listed on the Nasdaq Stock Market, its
minimum bid price must be $1.00 or more per share. Our bid price is currently
approximately $1.75 per share. If the Series C convertible preferred stock is
converted at its current discount price and the common stock issued upon
conversion is subsequently sold in the public market, the bid price of our
common stock may be reduced to less than $1.00 per share and our common stock
may be delisted from the Nasdaq Stock Market.
YEAR 2000 COMPLIANCE. Many computer systems will not properly recognize
date-sensitive information when the year changes to 2000. Computers which refer
to years in terms of their final two digits only may interpret the year 2000 to
mean the year 1900. Systems that do not properly recognize such information
could generate erroneous data or fail.
Currently, we have inventoried our information technology infrastructure
hardware and software and have commenced an assessment of our year 2000
compliance. We are in the process of working with our software vendors to ensure
that the software that we have licensed from third parties will operate properly
in the year 2000 and beyond. In addition, we are working with our external
suppliers and service providers to ensure that they and their systems will be
able to support our needs and, where necessary, interact with our server and
networking hardware and software infrastructure in preparation for the year
2000. To date, our costs of becoming year 2000 compliant have not been material.
We expect to have contingency plans in place by November 30, 1999 in the event
any of our key suppliers and providers are not year 2000 compliant. We do not
anticipate incurring significant operating expenses or being required to invest
heavily in computer systems improvements to be year 2000 compliant. However,
significant uncertainty exists concerning the potential costs and effects
associated with any year 2000 compliance.
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WE MAY BE EXPOSED TO PRODUCT LIABILITY. Our business exposes us to
potential product liability risks inherent in the testing, manufacturing and
marketing of human therapeutic products, and we may not be able to avoid
significant product liability exposure. Except for insurance covering product
use in our clinical trial, we do not currently have any product liability
insurance, and we may not be able to obtain or maintain such insurance on
acceptable terms and we may not be able to obtain any insurance to provide
adequate coverage against potential liabilities. Our inability to obtain
sufficient insurance coverage at an acceptable cost or otherwise to protect
against potential product liability claims could prevent or limit the
commercialization of any products we develop. Furthermore, a product
liability-related claim or recall could be detrimental to our business.
EFFORTS TO CONTAIN OR REDUCE THE COST OF HEALTH CARE WILL HURT OUR
REVENUES AND EARNINGS. As a biopharmaceutical company, we expect that our
business will be effected by the efforts of governmental and third-party payors
to contain or reduce the costs of health care. In the near term, our ability to
raise capital could be adversely effected by governmental efforts to assert
greater control over pricing or profitability or prescription pharmaceuticals.
Such efforts could adversely effect the profitability of our existing and
potential collaborators, reduce their cash resources, and discourage them from
investing in our research and development programs. In the longer term, if we
and our collaborators are successful in developing human therapeutic drugs, the
efforts of the government and third party payors to contain or reduce health
care costs could adversely effect our revenues and earnings from such products.
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WHERE TO FIND MORE INFORMATION
We are a public company and file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
request copies of these documents by writing to the SEC and paying a copying
fee. Please call the SEC at 1-800-SEC-0330 for more information about the public
reference room operations. Our SEC filings are also available at the SEC's web
site at "http://www.sec.gov." In addition, you can read and copy our SEC filings
at the office of the National Association of Securities Dealers, Inc. at 1735 K
Street, Washington, DC, 20006.
This prospectus is only part of a Registration Statement on Form S-3 that
we have filed with the SEC under the Securities Act of 1933 and therefore omits
certain information contained in the Registration Statement. We have also filed
exhibits and schedules with the Registration Statement that are excluded from
this prospectus, and you should refer to the applicable exhibit or schedule for
a complete description of any statement referring to any contract or other
document. You may:
- inspect a copy of the Registration Statement, including the
exhibits and schedules, without charge at the public reference
room or
- obtain a copy from the SEC upon payment of the fees prescribed
by the SEC.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus and information we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until the selling stockholders sell all of their shares of common stock. The
documents we are incorporating by reference are:
- Annual Report on Form 10-K for the year ended December 31,
1997, filed on March 10, 1998;
- Definitive Proxy Statement, filed on April 16, 1998;
- Current Report on Form 8-K, filed on April 29, 1998;
- Current Report on Form 8-K, filed on November 12, 1998;
- Quarterly Report on Form 10-Q, for the quarter ended March 31,
1998, filed on May 12, 1998;
- Quarterly Report on Form 10-Q, for the quarter ended June 30,
1998, filed on August 6, 1998;
- Quarterly Report on Form 10-Q, for the quarter ended September
30, 1998, filed on November 13, 1998; and
- The description of the common stock contained in our
Registration Statement on Form 10 filed with the SEC on June
25, 1993, including any amendments or reports filed for the
purpose of updating such description.
You may request a copy of these filings at no cost by writing or
telephoning our Chief Financial Officer at the following address and number:
ARIAD Pharmaceuticals, Inc.
26 Landsdowne Street
Cambridge, Massachusetts 02139
(617) 494-0400
This prospectus is part of a Registration Statement we filed with the SEC.
You should rely on the information incorporated by reference provided in this
prospectus and the Registration Statement.
10
<PAGE> 12
FORWARD LOOKING STATEMENTS
We also caution you that this prospectus contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. These statements are based
on management's beliefs and assumptions and on information currently available
to management. Forward-looking statements include the information concerning
possible or assumed future results of operations and embody statements in which
we use words such as "expect," "anticipate, " "intend," "plan," "believe,"
"estimate," or similar expressions.
Forward-looking statements necessarily involve risks and uncertainties,
including those set forth in the Risk Factors section and elsewhere in this
prospectus. Our actual results could differ materially from those anticipated in
the forward-looking statements. The factors set forth in the Risk Factors
sections and other cautionary statements made in this prospectus should be read
and understood as being applicable to all related forward-looking statements
wherever they appear in this prospectus.
USE OF PROCEEDS
All net proceeds from the sale of our common stock will go to the selling
stockholders who offer and sell their shares. Accordingly, we will not receive
any proceeds from the selling stockholders' sale of their common stock.
DIVIDEND POLICY
We have not declared or paid dividends on our common stock in the past and
do not intend to declare or pay such dividends in the foreseeable future. Our
current long-term debt agreements prohibit the payment of cash dividends.
11
<PAGE> 13
SELLING STOCKHOLDERS
The table below lists the selling stockholders and other information
regarding the beneficial ownership of the common stock by each of the selling
stockholders as of December 22, 1998. The second column lists the number of each
selling stockholder's shares (based on its ownership of series C convertible
preferred stock) which would be issuable to the selling stockholder on December
23, 1998 upon conversion of all of the series C preferred stock then held by
such selling stockholder, including an amount of shares equal to the accrual
amount provided in the Certificate of Designations for the series C preferred
stock, accrued to December 23, 1998 from the date of issuance. The third column
lists each selling stockholder's pro rata portion (based on its ownership of
series C convertible preferred stock) of the 5,933,362 shares of common stock
being registered hereby. The 5,933,362 shares of common stock shown in the table
represent 200% of the shares that would be issuable to the selling stockholders
on December 23, 1998 upon conversion of all of the series C preferred stock. Our
conversion calculations assume a conversion price for the series C preferred
stock of $1.6953125 (which represents the average of the four lowest closing bid
prices during the twenty-two consecutive trading days prior to and including
December 22, 1998). The numbers listed in the second column are subject to
fluctuations from time to time based on changes in the closing bid price of our
common stock.
Pursuant to the Company's Certificate of Designations of the series C
preferred stock, no selling stockholder can convert series C preferred stock to
the extent such conversion would cause such selling stockholder's beneficial
ownership of the common stock (other than shares deemed beneficially owned
through ownership of unconverted shares of the series C preferred stock) to
exceed 4.9% of the outstanding shares of common stock. The information provided
in the table below has been obtained from the selling stockholders. The selling
stockholders may sell all, some or none of their shares in this offering. See
"Plan of Distribution."
<TABLE>
<CAPTION> Shares Beneficially
Names Number of Shares Maximum Number Owned After Offering
of Selling Owned Prior to of Shares Being -------------------------
Stockholders Offering Offered(1) Number(2) Percent
- ----------------------- ---------------- --------------- ------------ ---------
<S> <C> <C> <C> <C>
HFTP Investment, 1,780,009 3,560,018 0 *
L.L.C.(3)
Brown Simpson Strategic 771,337 1,542,674 0 *
Growth Fund, Ltd.(4)
Brown Simpson Strategic 415,335 830,670 0 *
Growth Fund, L.P.(5)
</TABLE>
* Less than one percent of the outstanding shares of common stock.
(1) Does not include an indeterminate number of additional shares of common
stock as may from time to time become issuable upon conversion of the
series C preferred stock by reason of stock splits, stock dividends and
other similar transactions, which shares are registered hereunder pursuant
to Rule 416 under the Securities Act, but such registration pursuant to
Rule 416 does not cover an indeterminate number of common shares based on
the operation of the conversion formula of the series C convertible
preferred stock.
(2) Assumes the sale of all of the shares offered by each selling stockholder.
(3) Promethean Investment Group, LLC, a New York limited liability company
("Promethean"), serves as investment advisor to HFTP Investment, L.L.C.
("HFTP") and may be deemed to share beneficial ownership of the shares
beneficially owned by HFTP by reason of shared power to vote and to
dispose of the shares beneficially owned by HFTP. Promethean disclaims
beneficial ownership of the shares beneficially owned by HFTP. Mr. James
F. O'Brien, Jr. indirectly controls Promethean. Mr. O'Brien disclaims
beneficial ownership of the shares beneficially owned by Promethean and
HFTP.
(4) Brown Simpson Asset Management, L.L.C. serves as the investment manager to
Brown Simpson Strategic Growth Fund, Ltd. pursuant to an investment
management contract. The members of Brown Simpson Asset Management, L.L.C.
are Mitchell Kaye, Evan Levine, James Simpson and Matthew Brown. Such
persons may be deemed to have beneficial ownership of the shares owned by
Brown Simpson Strategic Growth Fund Ltd.
(5) The general partner of Brown Simpson Strategic Growth Fund, L.P. is Brown
Simpson Capital, L.L.C., the members of which are Mitchell Kaye, Evan
Levine, James Simpson and Matthew Brown. Such members may be deemed to
have beneficial ownership of the shares owned by Brown Simpson Strategic
Growth Fund, L.P.
12
<PAGE> 14
PLAN OF DISTRIBUTION
The selling stockholders are offering shares of common stock, $.001 par
value per share, which are issuable to them upon conversion of the series C
convertible preferred stock, $.01 par value per share, they acquired from us in
a private placement transaction, pursuant to Stock Purchase Agreements, dated as
of November 9, 1998. This prospectus covers the selling stockholders' resale of
up to 5,933,362 acquired shares of common stock and an indeterminate number of
additional shares as may from time to time become issuable upon conversion of
the series C preferred stock by reason of stock splits, stock dividends and
other similar transactions, but does not cover an indeterminate number of common
shares based on the operation of the conversion formula of the series C
convertible preferred stock.
In accordance with the selling stockholders' registration rights provided
in the Purchase Agreements, we have filed a Registration Statement on Form S-3
with the SEC. The Registration Statement covers the resale of the common stock
from time to time on the Nasdaq National Market or in privately-negotiated
transactions. This prospectus forms a part of the Registration Statement. We
have also agreed to prepare and file such amendments and supplements to the
Registration Statement as may be necessary to keep such Registration Statement
effective until the shares are no longer required for the selling stockholders
to sell their shares.
The shares of common stock described in this prospectus may be sold
directly by the selling stockholders, or through underwriters, broker-dealers or
agents. The selling stockholders may also transfer, devise or gift their shares
by other means not described in this prospectus. Accordingly, shares of common
stock may be offered by pledgees, donees, transferees or other successors in
interest that receive such shares as a gift, partnership distribution or other
non-sale related transfer. In addition, any selling stockholders' shares covered
by this prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
The shares of common stock may be sold from time to time by the selling
stockholders in one or more transactions:
- at fixed prices that may be changed,
- at market prices prevailing at the time of sale, or
- at prices related to such prevailing market prices or at negotiated
prices.
The selling stockholders may offer their shares of common stock in one or
more of the following 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,
- in the over-the-counter market,
- in privately negotiated transactions,
- through options,
- by pledge to secure debts and other obligations,
- by a combination of the above methods of sale, or
- to cover short sales made pursuant to this prospectus.
In order to comply with the securities laws of certain states, the shares
must be offered or sold only through registered or licensed brokers or dealers.
In addition, in certain states, the shares may not be offered or sold unless
they have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and is
complied with.
13
<PAGE> 15
The selling stockholders and any underwriters, broker-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 the shares of common stock and any compensation
received by any underwriter, broker-dealer or agent may be deemed to be
underwriting discounts and commission under the Securities Act.
Under the Securities Exchange Act of 1934, any person engaged in the
distribution of the shares may not simultaneously engage in market-making
activities with respect to the common stock for five business days prior to the
start of the distribution. In addition, each selling stockholder and any other
person participating in a distribution will be subject to the Exchange Act,
which may limit the timing of purchases and sales of common stock by the selling
stockholder 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.
These shares were originally issued to the selling stockholders pursuant
to an exemption from the registration requirements under Sections 4(2) or
3(a)(9) of the Securities Act or otherwise. We have agreed to register the
shares under the Securities Act and to indemnify and hold the selling
stockholders harmless against certain liabilities under the Securities Act that
could arise in connection with the selling stockholders' sale of their shares.
We have agreed to pay all reasonable fees and expenses incident to the filing of
the Registration Statement.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston,
Massachusetts, will deliver its opinion that the shares of common stock offered
in this prospectus have been validly issued and are fully paid and
non-assessable.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
14
<PAGE> 16
================================================================================
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. The selling stockholders are offering to sell and
seeking offers to buy shares of our common stock only in jurisdictions where
offers and sales are permitted. The information contained in this prospectus is
accurate only as of February 9, 1999. You should not assume that this prospectus
is accurate as of any other date.
TABLE OF CONTENTS
PAGE
Prospectus Summary........................................................ 2
The Company............................................................... 2
Risk Factors.............................................................. 4
Where to Find More Information............................................ 10
Incorporation of Documents by Reference................................... 10
Forward Looking Statements................................................ 11
Use of Proceeds........................................................... 11
Dividend Policy........................................................... 11
Selling Stockholders...................................................... 12
Plan of Distribution...................................................... 13
Legal Matters............................................................. 14
Experts................................................................... 14
================================================================================
================================================================================
5,933,362 SHARES
ARIAD PHARMACEUTICALS, INC.
COMMON STOCK
($.001 PAR VALUE PER SHARE)
----------------
PROSPECTUS
----------------
, 1999
================================================================================
<PAGE> 17
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the Company's estimates (other than the SEC
and Nasdaq registration fees) of the expenses in connection with the issuance
and distribution of the shares of common stock being registered. None of the
following expenses are being paid by the selling stockholders.
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---- ------
<S> <C>
SEC registration fee.............................................. $ 2,860.81
Nasdaq listing fee................................................ 17,500.00
Legal fees and expenses........................................... 10,000.00
Accounting fees and expenses...................................... 5,000.00
Miscellaneous fees and expenses................................... 639.19
------------
Total............................................................. $ 36,000.00
============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no cause to believe his conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation may purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under such Section 145.
The Certificate of Incorporation, as amended, and By-laws of the Company
provide for indemnification of the Company's directors and officers to the
fullest extent permitted by law. The By-laws also permit the Board of Directors
to authorize the Company to purchase and maintain insurance against any
liability asserted against
1
<PAGE> 18
any director, officer, employee or agent of the Company arising out of his
capacity as such. Insofar as indemnification for liabilities under the
Securities Act may be permitted to directors, officers, or controlling persons
of the Company pursuant to the Company's Certificate of Incorporation, as
amended, its By-laws and the Delaware General Corporation Law, the Company has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Company's Certificate of Incorporation, as amended, provides that directors
of the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, relating to prohibited dividends or
distributions or the repurchase or redemption of stock or (iv) for any
transaction from which the director derives an improper personal benefit. As a
result of this provision, the Company and its stockholders may be unable to
obtain monetary damages from a director for breach of his or her duty of care.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
4.1 Certificate of Incorporation of the Company, as amended.
(Filed as Exhibit 3.1 to the Registrant's Registration
Statement on Form 10 filed with the Securities and Exchange
Commission on June 25, 1993 and incorporated herein by
reference.)
4.2 By-laws of the Company, as amended. (Filed as Exhibit 3.2 to
the Registrant's Registration Statement on Form 10 filed with
the Securities and Exchange Commission on June 25, 1993 and
incorporated herein by reference.)
4.3 Amendment of Certificate of Incorporation of the Company,
dated April 8, 1994. (Filed as Exhibit 3.3 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December
31, 1993 filed with the Securities and Exchange Commission on
April 15, 1994 and incorporated herein by reference.)
4.4 Amendment of Certificate of Incorporation of the Company,
dated October 4, 1994. (Filed as Exhibit 3.4 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994 filed with the Securities and Exchange
Commission on March 30, 1995 and incorporated herein by
reference.)
4.5 Amendment of By-laws of the Company, adopted September 16,
1994. (Filed as Exhibit 3.5 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 filed
with the Securities and Exchange Commission on March 30, 1995
and incorporated herein by reference.)
4.6 Certificate of Designations for the Series B Convertible
Preferred Stock. (Filed as Exhibit 3.5 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal period ended
March 31, 1997 filed with the Securities and Exchange
Commission on May 13, 1997 and incorporated herein by
reference.)
4.7 Certificate of Designations for the Series C Convertible
Preferred Stock. (Filed as Exhibit 4.3 to the Registrant's
Current Report on Form 8-K for the November 12, 1998 Event and
incorporated herein by reference.)
2
<PAGE> 19
5.1* Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
regarding legality
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(see Exhibit 5.1)
24.1* Power of Attorney (included on signature page)
* Previously filed with the Securities and Exchange Commission on December 24,
1998.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or any decrease in volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any derivation from the low end 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% change in
the maximum aggregate offering price set forth the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, 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 Section 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.
(b) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
3
<PAGE> 20
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) 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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(d) The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
4
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Cambridge and Commonwealth of Massachusetts on the 9th day of February, 1999.
ARIAD PHARMACEUTICALS, INC.
By: /s/ Jay R. LaMarche
---------------------------
Jay R. LaMarche
Executive Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons and in the capacities indicated on the 9th day of February, 1999.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board of Directors, President
- ----------------------------- and Chief Executive Officer (Principal Executive Officer) February 9, 1999
Harvey J. Berger, M.D.
/s/ Jay R. LaMarche Executive Vice President, Chief Financial Officer, Treasurer and
- ----------------------------- Director (Principal Financial and Accounting Officer) February 9, 1999
Jay R. LaMarche
* Director February 9, 1999
- -----------------------------
Joan S. Brugge, Ph.D.
* Director February 9, 1999
- -----------------------------
Vaughn D. Bryson
* Director February 9, 1999
- -----------------------------
Philip Felig, M.D.
* Director February 9, 1999
- -----------------------------
John M. Deutch, Ph.D.
* Director February 9, 1999
- -----------------------------
Joel S. Marcus
* Director February 9, 1999
- -----------------------------
Sandford D. Smith
* Director February 9, 1999
- -----------------------------
Ralph Snyderman, M.D.
* Director February 9, 1999
- -----------------------------
Raymond S. Troubh
</TABLE>
* By executing his name hereto, Jay R. LaMarche is signing this document on
behalf of the persons indicated above pursuant to powers of attorney duly
executed by such persons and filed with the SEC.
By: /s/ Jay R. LaMarche
-----------------------
Jay R. LaMarche
(Attorney-in-Fact)
5
<PAGE> 22
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------ -------
4.1 Certificate of Incorporation of the Company, as amended. (Filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form 10 filed
with the Securities and Exchange Commission on June 25, 1993 and
incorporated herein by reference.)
4.2 By-laws of the Company, as amended. (Filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form 10 filed with the
Securities and Exchange Commission on June 25, 1993 and incorporated
herein by reference.)
4.3 Amendment of Certificate of Incorporation of the Company, dated April
8, 1994. (Filed as Exhibit 3.3 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993 filed with the
Securities and Exchange Commission on April 15, 1994 and incorporated
herein by reference.)
4.4 Amendment of Certificate of Incorporation of the Company, dated October
4, 1994. (Filed as Exhibit 3.4 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1994 filed with the
Securities and Exchange Commission on March 30, 1995 and incorporated
herein by reference.)
4.5 Amendment of By-laws of the Company, adopted September 16, 1994. (Filed
as Exhibit 3.5 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 filed with the Securities and
Exchange Commission on March 30, 1995 and incorporated herein by
reference.)
4.6 Certificate of Designations for the Series B Convertible Preferred
Stock. (Filed as Exhibit 3.5 to the Registrant's Quarterly Report on
Form 10-Q for the fiscal period ended March 31, 1997 filed with the
Securities and Exchange Commission on May 13, 1997 and incorporated
herein by reference.)
4.7 Certificate of Designations for the Series C Convertible Preferred
Stock. (Filed as Exhibit 4.3 to the Registrant's Current Report on Form
8-K for the November 12, 1998 Event and incorporated herein by
reference.)
5.1* Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
regarding legality
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (see
Exhibit 5.1)
24.1* Power of Attorney (included on signature page)
* Previously filed with the Securities and Exchange Commission on December 24,
1998.
6
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-69689 of ARIAD Pharmaceuticals, Inc. of our
report dated January 30, 1998, appearing in the Annual Report on Form 10-K of
ARIAD Pharmaceuticals, Inc. for the year ended December 31, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
February 9, 1999
