As Filed with the Securities and Exchange
Commission on September 23 , 2016
Registration No. 333- 213456
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ARQULE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
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04-3221586
(IRS Employer Identification No.)
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One Wall Street
Burlington, Massachusetts 01803
(781) 994-0300
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
PAOLO PUCCI
Chief Executive Officer
ArQule, Inc.
One Wall Street
Burlington, Massachusetts 01803
(781) 994-0300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
PETER S. LAWRENCE
President and Chief Operating Officer
ArQule, Inc.
One Wall Street
Burlington, Massachusetts 01803
(781) 994-0300
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RICHARD E. BALTZ
Arnold & Porter LLP
601 Massachusetts Ave, N.W.
Washington, D.C. 20001
(202) 942-5000
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Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this Registration Statement.
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 of 1933, 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 of 1933, 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 registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following box:
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act of 1933, check the following box:
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Securities Exchange Act of 1934.
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Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer
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(Do not check if
smaller reporting company)
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Smaller reporting company
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The registrant hereby amends this registration
statement (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, or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not
complete and may be changed. We may not sell any of the securities described in this prospectus until the registration statement
that we have filed with the Securities and Exchange Commission to cover the securities is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is
not permitted.
Subject to Completion
Preliminary Prospectus Dated September 23 , 2016
PROSPECTUS
ARQULE, INC.
UP TO $100,000,000
OF OUR
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
UNITS
We may offer from time to time
up to $100,000,000 in total of:
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shares of our common stock,
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shares of our preferred stock,
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warrants to purchase shares of common stock or preferred
stock,
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units consisting of any combination of our common
stock, preferred stock, warrants or debt securities.
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We may offer the common stock, preferred
stock, warrants, debt securities, and units (collectively, the “securities”) separately or together, in separate series,
in amounts, at prices and on terms to be set forth in one or more supplements to this prospectus. When we decide to issue securities,
we will provide you with the specific terms and the public offering price of the securities in prospectus supplements. You should
read this prospectus and the prospectus supplements carefully before you invest. This prospectus may not be used to offer or sell
securities unless accompanied by a prospectus supplement.
Our common stock is quoted on the NASDAQ
Global Market and traded under the symbol “ARQL.” We may sell these securities to or through underwriters and also
to other purchasers or through agents. We will set forth the names of any underwriters or agents in the applicable prospectus supplement.
Our principal executive offices are located
at One Wall Street, Burlington, Massachusetts 01803 and our telephone number is (781) 994-0300.
An investment in our securities involves
a high degree of risk. See “Risk Factors” on page 2 for information regarding certain material factors that you
should consider in connection with an investment in our securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2016
TABLE OF CONTENTS
SUMMARY
This summary contains a general summary
of the information contained in this prospectus. It may not include all the information that is important to you. You should read
the entire prospectus, the prospectus supplement delivered with the prospectus, and the documents incorporated by reference before
making an investment decision.
We are a biopharmaceutical company engaged
in the research and development of innovative therapeutics to treat cancers and rare diseases. Our mission is to discover, develop
and commercialize novel small molecule drugs in areas of high unmet need that will dramatically extend and improve the lives of
our patients. These drugs target biological pathways implicated in a wide range of cancers and certain non-oncology indications.
Our discovery and development efforts are guided, when possible, by an understanding of the role of biomarkers, which are indicators
of a particular biological condition or process and may predict the clinical benefit of our compounds in defined patient populations.
Our clinical-stage pipeline consists of five drug candidates, all of which are in targeted patient populations making ArQule a
leader among companies our size in precision medicine.
Our lead product candidate is tivantinib
(ARQ 197), an orally administered, small molecule inhibitor of the c-Met receptor tyrosine kinase (“MET”) and its biological
pathway. MET is a promising target for cancer therapy, based on its multiple roles in cancerous cell proliferation, tumor spread,
new blood vessel formation and resistance to certain drug therapies. We and our partners, Daiichi Sankyo Co., Ltd. (“Daiichi
Sankyo”) and Kyowa Hakko Kirin Co., Ltd. (“Kyowa Hakko Kirin”), are implementing a worldwide clinical development
program with tivantinib. Our strategy is to focus on the most promising indications within our clinical programs based upon continually
generated and updated clinical and pre-clinical data. Our lead indication is liver cancer (“hepatocellular carcinoma”
or “HCC”), and we are currently conducting two Phase 3 trials with our partners. We have also completed earlier-stage
single agent and combination therapy trials and pre-clinical experiments with tivantinib and other anti-cancer agents that may
provide data to support trials in additional indications.
Our executive offices are located at One
Wall Street, Burlington, MA 01803.
The Securities We May Offer
We may offer any of the following
securities from time to time:
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shares of our common stock;
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shares of our preferred stock;
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warrants to purchase shares of our preferred stock or common stock;
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units consisting of any combination of our common stock, preferred
stock, warrants, or debt securities.
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When we use the term “securities”
in this prospectus, we mean any of the securities we may offer with this prospectus, unless we say otherwise. The total dollar
amount of all securities that we may issue will not exceed $100 million. This prospectus, including the following summary, describes
the general terms that may apply to the securities; the specific terms of any particular securities that we may offer will be described
in a separate supplement to this prospectus. If any securities are to be listed or quoted on a securities exchange or quotation
system, the applicable prospectus supplement will say so.
RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED DIVIDENDS
If we offer debt securities and/or preference
equity securities under this prospectus, then we will, if required at that time, provide a ratio of earnings to fixed charges and/or
a ratio of combined fixed charges and preference dividends to earnings, respectively, in the applicable prospectus supplement for
such offering.
RISK FACTORS
An investment in our securities involves
a high degree of risk. You should carefully consider the specific risks set forth under the caption “Risk Factors”
in the applicable prospectus supplement before making an investment decision. The risks and uncertainties described in the prospectus
supplement are not the only ones we face. Additional risks and uncertainties that we are unaware of or that we believe are not
material at the time could also materially adversely affect our business, financial condition or results of operations. In any
case, the value of our securities could decline, and you could lose all or part of your investment. You should also refer to the
other information contained in this prospectus or incorporated herein by reference, including our financial statements and the
notes to those statements and the risks and uncertainties described in Item 1A of our Annual Report on Form 10-K for
the fiscal year ended December 31, 2015. See also the information contained under the heading “Special Note Regarding
Forward Looking Statements” immediately below.
SPECIAL NOTE REGARDING FORWARD LOOKING
STATEMENTS
In addition to historical information, this
report contains forward-looking statements. You can identify these forward-looking statements by their use of words such as “anticipate,”
“assume,” “believe,” “estimate,” “expect,” “forecast,” “intend,”
“may,” “plan,” “project,” “target,” “will” and other words and terms
of similar meaning. You also can identify them by the fact that they do not relate strictly to historical or current facts. All
statements which address operating performance, events or developments that we expect or anticipate will occur in the future, such
as projections about our future results of operations, our financial condition, research, development and commercialization of
our product candidates and anticipated trends in our business are forward-looking statements.
In this prospectus and the reports that
we incorporate by reference herein, we make forward-looking statements regarding our drug development pipeline and our clinical
trials involving tivantinib. Additional forward-looking statements relate to our agreements with Kyowa Hakko Kirin and Daiichi
Sankyo, including potential future milestones and royalty payments that could result from the future development of tivantinib.
Drug development involves a high degree
of risk. Only a small number of research and development programs result in the commercialization of a product. Although we believe
that the expectations reflected in our forward looking statements are reasonable as of the date thereof, such expectations are
based on certain assumptions regarding the progress of product development efforts including clinical trials and preclinical activities
conducted by us and third parties, the prosecution of existing and efforts to execute new collaborative agreements, receipt of
potential milestones and royalties under our collaborative agreements, government regulations, reliance on third parties to conduct
clinical trials and perform research and analysis services, changes in economic and business conditions, and other factors relating
to our growth. Such expectations may not materialize if product development efforts, including any necessary trials of our potential
drug candidates, are delayed or suspended, if our compounds fail to demonstrate safety and efficiency, if positive early results
are not repeated in later studies or in humans, if the therapeutic value of our compounds is not realized, if planned acquisitions
or negotiations with potential collaborators are delayed or unsuccessful, if we are unsuccessful at integrating acquired assets
or technologies, or if other assumptions prove incorrect.
We also make forward-looking statements
regarding the adequacy of our financial resources. Our capital resources may not be adequate because our cash requirements may
vary materially from those now planned depending upon the results of our drug discovery and development strategies, the outcomes
of our clinical trials, our ability to enter into additional corporate collaborations in the future and the terms of such collaborations,
results of research and development, the need for currently unanticipated capital expenditures, competitive and technological advances,
acquisitions, financial market conditions, and other factors. Additionally, our corporate collaborators may terminate their agreements
with us, thereby eliminating that source of funding, because we may fail to satisfy the prescribed terms of the collaborations
or for other reasons.
We cannot guarantee that we will be able
to develop any of our drug candidates into a commercial product generating revenues. If we experience increased losses, we may
have to seek additional financing from public and private sales of our securities, including equity securities. There can be no
assurance that additional funding will be available when needed or on acceptable terms.
Additional important factors that could
cause actual results to differ materially from our current expectations are identified in our other filings with the Securities
and Exchange Commission. Our forward-looking statements are based on information available to us today, and we will not update
these statements, except as may be required by law.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) using
a “shelf” registration process. Under this shelf process, we may from time to time offer up to $100 million in total
of (a) shares of common stock, $0.01 par value per share, (b) shares of preferred stock, $0.01 par value per share, in
one or more series, (c) warrants to purchase shares of common stock or preferred stock, (d) debt securities, or (e) units
consisting of any combination of our common stock, preferred stock, warrants, or debt securities, either individually or as units
consisting of one or more of the foregoing, each at prices and on terms to be determined at the time of sale. The common stock,
preferred stock, warrants, debt securities, and units are collectively referred to in this prospectus as “securities.”
The securities offered pursuant to this prospectus may be one or more series of issuances and the total offering price of the securities
will not exceed $100 million (or its equivalent based on the applicable exchange rate at the time of the sale in one or more foreign
currencies, currency units or composite currencies that we may designate).
This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information
described below under the heading “Where You Can Find More Information.”
You should rely only on the information
provided in the registration statement, this prospectus and in any prospectus supplement, including the information incorporated
by reference. We have not authorized anyone to provide you with different information. You should not assume that the information
in this prospectus or any supplement to this prospectus is accurate at any date other than the date indicated on the cover page
of these documents. Neither the delivery of this prospectus nor any sale made hereunder shall, under any circumstances, create
an implication that there has not been any change of facts set forth in this prospectus or in our affairs since the date of this
prospectus.
USE OF PROCEEDS
Unless otherwise specified in a prospectus
supplement accompanying this prospectus, we currently intend to use the net proceeds received from the sale of the securities for
research and development of our product candidates including the conduct of clinical trials and related activities, working capital
and general corporate purposes, at the discretion of management.
DILUTION
We will set forth in a prospectus supplement
the following information regarding any material dilution of the equity interests of investors purchasing securities in an offering
under this prospectus:
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the net tangible book value per share of our equity securities before
and after the offering;
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the amount of the increase in such net tangible book value per share
attributable to the cash payments made by purchasers in the offering; and
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the amount of the immediate dilution from the public offering price which will be absorbed by such purchases.
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PLAN OF DISTRIBUTION
We may sell the securities being offered
by this prospectus separately or together through any of the following methods:
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directly to investors or purchasers;
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to investors through agents;
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to or through brokers or dealers;
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to the public through underwriting syndicates led by one or more managing
underwriters;
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to one or more underwriters acting alone for resale to investors or
to the public;
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through a block trade in which the broker or dealer engaged to handle
the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to
facilitate the transaction; or
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through a
combination
of any of these methods of sale.
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Securities may also be issued upon exercise
of warrants or as a dividend or distribution. We reserve the right to sell securities directly to investors on our own behalf in
those jurisdictions where we are authorized to do so.
We may distribute the securities
from time to time in one or more transactions:
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at a fixed price or prices, which may be changed from time to time;
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at market prices prevailing at the times of sale;
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at prices related to such prevailing market prices; or
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We will describe the method of distribution
of the securities in the applicable prospectus supplement.
Direct Sales and Sales through Agents
We may directly solicit offers to purchase the securities offered
by this prospectus. Agents designated by us from time to time may solicit offers to purchase the securities. We will name any agent
involved in the offer or sale of the securities and set forth any commissions payable by us to an agent in the applicable prospectus
supplement. Unless otherwise indicated in the applicable prospectus supplement, any agent will be acting on a best efforts basis
for the period of his or her appointment. Any agent may be deemed to be an “underwriter” of the securities as that
term is defined in the Securities Act of 1933, as amended (the “Securities Act”).
Sales Through Underwriters or Dealers
If we use an underwriter or underwriters
in the sale of securities, we will execute an underwriting agreement with the underwriter or underwriters at the time we reach
an agreement for sale. We will set forth in the applicable prospectus supplement the names of the specific managing underwriter
or underwriters, as well as any other underwriters, and the terms of the transactions, including compensation of the underwriters
and dealers. This compensation may be in the form of discounts, concessions or commissions. Underwriters and others participating
in any offering of the securities may engage in transactions that stabilize, maintain or otherwise affect the price of the securities.
We will describe any of these activities in the applicable prospectus supplement.
If a dealer is used in the sale of the securities,
we or an underwriter will sell securities to the dealer, as principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of resale. The applicable prospectus supplement will set forth the
name of the dealer and the terms of the transactions.
We may directly solicit offers to purchase
the securities, and we may sell directly to institutional investors or others. These persons may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale of the securities. The applicable prospectus supplement will describe
the terms of any direct sales, including the terms of any bidding or auction process.
Agreements we enter into with agents, underwriters
and dealers may entitle them to indemnification by us against specified liabilities, including liabilities under the Securities
Act, or to contribution by us to payments they may be required to make in respect of these liabilities. The applicable prospectus
supplement will describe the terms and conditions of indemnification or contribution.
Delayed Delivery Contracts
We may authorize underwriters, dealers and
agents to solicit offers by certain institutional investors to purchase offered securities under contracts providing for payment
and delivery on a future date specified in the applicable prospectus supplement. The applicable prospectus supplement will also
describe the public offering price for the securities and the commission payable for solicitation of these delayed delivery contracts.
Delayed delivery contracts will contain definite fixed price and quantity terms. The obligations of a purchaser under these delayed
delivery contracts will be subject to only two conditions:
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that the institution’s purchase of the securities at the time
of delivery of the securities is not prohibited under the law of any jurisdiction to which the institution is subject; and
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that we shall
have
sold to the underwriters the total principal
amount of the offered securities, less the principal amount covered by the delayed delivery contracts.
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“At the Market” Offerings
We may from time to time engage a firm to
act as our agent for one or more offerings of our securities. We sometimes refer to this agent as our “offering agent.”
If we reach agreement with an offering agent with respect to a specific offering, including the number of securities and any minimum
price below which sales may not be made, then the offering agent will try to sell such securities on the agreed terms. The offering
agent could make sales in privately negotiated transactions or using any other method permitted by law, including sales deemed
to be an “at the market” offering as defined in Rule 415 promulgated under the Securities Act, including sales
made directly on the NASDAQ Global Market, or sales made to or through a market maker other than on an exchange. The offering agent
will be deemed to be an “underwriter” within the meaning of the Securities Act with respect to any sales effected through
an “at the market” offering.
Market Making, Stabilization and Other Transactions
To the extent permitted by and in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with
an offering an underwriter may engage in over-allotments, stabilizing transactions, short covering transactions and penalty bids.
Over-allotments involve sales in excess of the offering size, which creates a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased
in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it
would be otherwise. If commenced, the underwriters may discontinue any of these activities at any time.
To the extent permitted by and in accordance
with Regulation M under the Exchange Act, any underwriters who are qualified market makers on the NASDAQ Global Market may
engage in passive market making transactions in the securities on the NASDAQ Global Market during the business day prior to the
pricing of an offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable
volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its
bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive
market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
No securities may be sold under this prospectus
without delivery, in paper format, in electronic format on the Internet, or both, of the applicable prospectus supplement describing
the method and terms of the offering.
DESCRIPTION OF THE SECURITIES
This prospectus contains a summary of the
common stock, the preferred stock, the warrants, the senior debt securities, the subordinated debt securities and the units that
we may offer from time to time. The following summaries are not meant to be a complete description of each security. However, this
prospectus, the accompanying prospectus supplement and the accompanying pricing supplement, if applicable, contain the material
terms and conditions for each security. You should read these documents as well as the documents filed as exhibits to or incorporated
by reference to this registration statement.
DESCRIPTION OF COMMON STOCK
Authorized and Outstanding Common Stock
As of August 25, 2016, we had 100,000,000
shares of common stock authorized, of which 71,115,109 shares were outstanding.
Listing
Our common stock is quoted on the NASDAQ
Global Market and traded under the symbol “ARQL.”
Dividends
Our Board of Directors may authorize, and
we may make, distributions to our common stockholders, subject to any restriction in our Restated Certificate of Incorporation
and to those limitations prescribed by law. However, we have never paid cash dividends on our common stock or any other securities,
and we do not anticipate paying any cash dividends in the foreseeable future. We currently intend to retain future earnings, if
any, for use in our business.
Fully Paid and Non-Assessable
All shares of our outstanding common stock
are fully paid and non-assessable. Any additional shares of common stock that we issue will be fully paid and non-assessable.
Voting Rights
Each share of our common stock is entitled
to one vote in each matter submitted to a vote at a meeting of stockholders including in all elections for directors; stockholders
are not entitled to cumulative voting in the election for directors. Our stockholders may vote either in person or by proxy.
Preemptive and Other Rights
Holders of our common stock have no preemptive
rights and have no other rights to subscribe for additional securities of our company under Delaware law. Nor does the common stock
have any conversion rights or rights of redemption. Upon liquidation, all holders of our common stock are entitled to participate
pro rata in our assets available for distribution, subject to the rights of any class of preferred stock then outstanding.
Meetings; Stockholder Action by Written Consent
Our Bylaws provide that we must hold an
annual meeting of stockholders. Special meetings of our stockholders may be called at any time only by a majority of our Board
of Directors or by our President.
All actions must be taken at an annual or
special meeting. Our Restated Certificate of Incorporation provides that stockholders may not take action by written consent without
a meeting.
Staggered Board of Directors
Our Board of Directors is divided into three
classes, the members of each of which serve for staggered three-year terms. Our stockholders may elect only one-third of the directors
each year; therefore, it is more difficult for a third party to gain control of our Board of Directors than if our Board were not
staggered.
Transfer Agent and Registrar
American Stock Transfer & Trust
Company is our transfer agent and registrar.
DESCRIPTION OF PREFERRED STOCK
Our Restated Certificate of Incorporation
authorizes our Board of Directors, without further stockholder action, to provide for the issuance of up to 1,000,000 shares of
preferred stock, in one or more classes or series and to fix the rights, preferences, privileges, and restrictions thereof, including
dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, redemption prices, liquidation preferences
and the number of shares constituting any series of the designation of such series, without further vote or action by the stockholders.
We may amend from time to time our Certificate of Incorporation to increase the number of authorized shares of preferred stock.
Any such amendment would require the approval of the holders of a majority of the voting power of the shares entitled to vote thereon.
As of the date of this prospectus, we have 1,000,000 shares of preferred shares authorized, but no shares of preferred stock outstanding.
The particular terms of any series of preferred
stock being offered by us under this shelf registration statement will be described in the prospectus supplement relating to that
series of preferred stock. Those terms may include:
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the title and liquidation preference per share of the preferred stock
and the number of shares offered;
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the purchase price of the preferred stock;
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the dividend rate (or method of calculation), the dates on which dividends
will be paid and the date from which dividends will begin to accumulate;
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any redemption or sinking fund provisions of the preferred stock;
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any conversion provisions of the preferred stock;
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the voting rights, if any, of the preferred stock; and
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any
additional
dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions of the preferred stock.
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The preferred stock will, when issued, be
fully paid and non-assessable.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of
shares of our common stock or preferred stock. Warrants may be issued independently or together with the shares of common stock
or preferred stock offered by any prospectus supplement to this prospectus and may be attached to or separate from such shares.
Further terms of the warrants will be set forth in the applicable prospectus supplement. As of the date of this prospectus, we
have no warrants outstanding.
The applicable prospectus supplement will
describe the terms of the warrants in respect of which this prospectus is being delivered, including, where applicable, the following:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the designation, terms and number of shares of common stock or preferred
stock purchasable upon exercise of such warrants;
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the designation and terms of the shares of common stock or preferred
stock with which such warrants are issued and the number of such warrants issued with such shares;
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the date on and after which such warrants and the related common stock
or preferred stock will be separately transferable, including any limitations on ownership and transfer of such warrants;
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the price at which each share of common stock or preferred stock purchasable
upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
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the minimum or maximum amount of such warrants that may be exercised
at any one time;
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information with respect to book-entry procedures, if any;
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a discussion of certain federal income tax consequences; and
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any other terms
of
such warrants, including terms, procedures
and limitations relating to the exchange and exercise of such warrants.
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DESCRIPTION OF DEBT SECURITIES
We may issue senior debt securities or subordinated
debt securities. Senior debt securities will be issued under an indenture, the “senior indenture,” between us and the
trustee named in the applicable prospectus supplement, as trustee. Subordinated debt securities will be issued under a separate
indenture, the “subordinated indenture,” between us and the trustee named in the applicable prospectus supplement,
as trustee. The senior indenture and the subordinated indenture are sometimes collectively referred to in this prospectus as the
“indentures.” The indentures will be subject to and governed by the Trust Indenture Act of 1939. A copy of the form
of each of these indentures is filed as an exhibit to the registration statement of which this prospectus is a part. This prospectus
describes the general terms and provisions of the debt securities. When we offer to sell a particular series of debt securities,
we will describe the specific terms of the securities in a supplement to this prospectus. The prospectus supplement will also indicate
whether the general terms and provisions described in this prospectus apply to a particular series of debt securities.
The following briefly describes the general
terms and provisions of the debt securities and the indentures governing them which may be offered. The particular terms of the
debt securities offered, and the extent, if any, to which these general provisions may apply to the debt securities so offered,
will be described in a prospectus supplement relating to those securities. The following descriptions of the indentures are not
complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the respective indentures.
General
The indentures permit us to issue the debt
securities from time to time, without limitation as to aggregate principal amount, and in one or more series. The indentures also
do not limit or otherwise restrict the amount of other indebtedness which we may incur or other securities which we or our subsidiaries
may issue, including indebtedness which may rank senior to the debt securities. Nothing in the subordinated indenture prohibits
the issuance of securities representing subordinated indebtedness that is senior or junior to the subordinated debt securities.
Unless we give you different information
in the prospectus supplement, the senior debt securities will be unsubordinated obligations and will rank equally with all of our
other unsecured and unsubordinated indebtedness. Payments on the subordinated debt securities will be subordinated to the prior
payment in full of all of our senior indebtedness, as described under
“Description of Debt Securities—Subordination”
and in the applicable prospectus supplement.
We may issue debt securities if the conditions
contained in the applicable indenture are satisfied. These conditions include the adoption of resolutions by our board of directors
that establish the terms of the debt securities being issued. Any resolution approving the issuance of any issue of debt securities
will include the terms of that issue of debt securities, which may include:
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the title and series designation;
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the aggregate principal amount and the limit, if any, on the aggregate
principal amount or initial issue price of the debt securities which may be issued under the applicable indenture;
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the principal amount payable, whether at maturity or upon earlier
acceleration;
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whether the principal amount payable will be determined with reference
to an index, formula or other method which may be based on one or more currencies, currency units, composite currencies, commodities,
equity indices or other indices;
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whether the debt securities will be issued as original issue discount
securities (as defined below);
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the date or dates on which the principal of the debt securities is
payable;
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any fixed or variable interest rate or rates per annum or the method
or formula for determining an interest rate;
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the date from which any interest will accrue;
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any interest payment dates;
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whether the debt securities are senior or subordinated, and if subordinated,
the terms of the subordination;
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the price or prices at which the debt securities will be issued, which
may be expressed as a percentage of the aggregate principal amount of those debt securities;
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the stated maturity date;
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whether the debt securities are to be issued in global form;
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any sinking fund requirements;
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any provisions for redemption, the redemption price and any remarketing
arrangements;
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the denominations of the securities or series of securities;
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whether the debt securities are denominated or payable in United States
dollars or a foreign currency or units of two or more foreign currencies;
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any restrictions on the offer, sale and delivery of the debt securities;
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the place or places where payments or deliveries on the debt securities
will be made and may be presented for registration of transfer or exchange;
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whether any of the debt securities will be subject to defeasance in
advance of the date for redemption or the stated maturity date;
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the terms, if any, upon which the debt securities are convertible
into other securities of ours or another issuer and the terms and conditions upon which any conversion will be effected, including
the initial conversion price or rate, the conversion period and any other provisions in addition to or instead of those described
in this prospectus;
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any other terms of the debt securities which are not inconsistent
with the provisions of the applicable indenture;
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a description of any documents or certificates that must be received
prior to the issuance of any definitive securities;
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whether and under what circumstances additional amounts will be paid
to non-U.S. citizens in connection with any tax, assessment or governmental charge and whether securities may be redeemed in lieu
of paying such additional fees;
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the identity of each security registrar or paying agent (if other
than trustee);
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any provisions granting special rights to securities holders upon
the occurrence of specified events;
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any deletions from, modifications of, or additions to any default
events or covenants set forth in the form of indenture;
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the portion of the principal amount payable upon the declaration of
acceleration of the maturity of any securities; and
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the date any bearer securities of or within the series and any temporary global security representing outstanding securities
shall be dated, if other than date of original issuance.
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The debt securities may be issued as “original
issue discount securities” which bear no interest or interest at a rate which at the time of issuance is below market rates
and which will be sold at a substantial discount below their principal amount. If the maturity of any original issue discount security
is accelerated, the amount payable to the holder of the security will be determined by the applicable prospectus supplement, the
terms of the security and the relevant indenture, but may be an amount less than the amount payable at the maturity of the principal
of that original issue discount security. Special federal income tax and other considerations relating to original issue discount
securities will be described in the applicable prospectus supplement.
Please see the prospectus supplement or
pricing supplement you have received or will receive for the terms of the specific debt securities we are offering.
You should be aware that special U.S. Federal income tax, accounting
and other considerations may apply to the debt securities. The prospectus supplement relating to an issue of debt securities will
describe these considerations.
Registration and Transfer
Holders may present debt securities in registered
form for transfer or exchange for other debt securities of the same series at the offices of the applicable indenture trustee according
to the terms of the applicable indenture and the debt securities.
Unless otherwise indicated in the applicable
prospectus supplement, the debt securities will be issued in fully registered form, and in denominations of $1,000 and any integral
multiple thereof and the bearer securities of such series other than bearer securities issued in global form shall be issuable
in denominations of $5,000.
No service charge will be required for any
transfer or exchange of the debt securities but we may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with any transfer or exchange.
Payment and Place of Payment
We will pay or deliver principal and any
premium and interest in the manner, at the places and subject to the restrictions set forth in the applicable indenture, the debt
securities and the applicable prospectus supplement. However, at our option, we may pay any interest by check mailed to the holders
of registered debt securities at their registered addresses.
Global Securities
Each indenture provides that we may issue
debt securities in global form. If any series of debt securities is issued in global form, the prospectus supplement will describe
any circumstances under which beneficial owners of interests in any of those global debt securities may exchange their interests
for debt securities of that series and of like tenor and principal amount in any authorized form and denomination.
Events of Default
Unless otherwise indicated in the applicable
prospectus supplement, the following are events of default under the senior indenture with respect to the senior debt securities
and under the subordinated indenture with respect to the subordinated debt securities:
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default in the payment of any principal or premium or make-whole amount,
if any, on the debt securities when due;
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default in the payment of any interest on the debt securities, or
of any coupon pertaining thereto, when due, which continues for 30 days;
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default in the performance or breach of any other obligation contained
in the applicable indenture for the benefit of that series of debt securities (other than defaults or breaches otherwise specifically
addressed), which continues for 90 days after written notice of the default or breach;
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specified events in bankruptcy, insolvency or reorganization of us
or any of our significant subsidiaries; and
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any other event of default provided with respect to the debt securities
of any series.
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If an event of default (other than an event
of default arising from specified events in bankruptcy of us or any of our significant subsidiaries) occurs and is continuing for
any series of debt securities, the indenture trustee or the holders of not less than 25% in aggregate principal amount or, under
certain circumstances, issue price of the outstanding debt securities of that series may declare all amounts, or any lesser amount
provided for in the debt securities of that series, to be immediately due and payable.
At any time after the applicable indenture
trustee or the holders have accelerated a series of debt securities, but before the applicable indenture trustee has obtained a
judgment or decree for payment of money due, the holders of a majority in aggregate principal amount of outstanding debt securities
of that series may rescind and annul that acceleration and its consequences, provided that all payments and/or deliveries due,
other than those due as a result of acceleration, have been made and all events of default have been remedied or waived.
The holders of a majority in principal amount
or aggregate issue price of the outstanding debt securities of any series may waive any default with respect to that series, except
a default:
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in the payment of any amounts due and payable or deliverable under
the debt securities of that series; or
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in an obligation contained in, or a provision of, an indenture which
cannot be modified under the terms of that indenture without the consent of each holder of each series of debt securities affected.
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The holders of a majority in principal amount
or, under certain circumstances, issue price of the outstanding debt securities of a series may direct the time, method and place
of conducting any proceeding for any remedy available to the applicable indenture trustee or exercising any trust or power conferred
on the indenture trustee with respect to debt securities of that series, provided that any direction is not in conflict with any
rule of law or the applicable indenture and the trustee may take other actions, other than those that might lead to personal liability,
not inconsistent with the direction. Subject to the provisions of the applicable indenture relating to the duties of the indenture
trustee, before proceeding to exercise any right or power under the indenture at the direction of the holders, the indenture trustee
is entitled to receive from those holders reasonable security or indemnity against the costs, expenses and liabilities which it
might incur in complying with any direction.
A holder of any debt security of any series
will have the right to institute a proceeding with respect to the applicable indenture or for any remedy under the indenture, if:
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that holder previously gives to the indenture trustee written notice
of a continuing event of default with respect to debt securities of that series;
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the holders of not less than 25% in principal amount of the outstanding
securities of that series have made written request and offered the indenture trustee indemnity satisfactory to the indenture trustee
to institute that proceeding as indenture trustee;
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the indenture trustee will not have received from the holders of a
majority in principal amount or, under certain circumstances, issue price of the outstanding debt securities of that series a direction
inconsistent with the request; and
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the indenture trustee fails to institute the proceeding within 60
days.
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However, the holder of any debt security
or coupon has the right to receive payment of the principal of (and premium or make-whole amount, if any) and interest on, and
any additional amounts in respect of, such debt security or payment of such coupon on the respective due dates (or, in the case
of redemption, on the redemption date) and to institute suit for the enforcement of any such payment.
We are required to furnish to the indenture
trustees annually a statement as to the performance of our obligations under the indentures and as to any default in that performance.
Modification and Waiver
Unless otherwise indicated in the applicable
indenture supplement, we and the applicable indenture trustee may amend and modify each indenture or debt securities under that
indenture with the consent of holders of at least a majority in principal amount or, under certain circumstances, issue price of
each series of all outstanding debt securities then outstanding under the indenture affected. However, without the consent of each
holder of any debt security issued under the applicable indenture, we may not amend or modify that indenture to:
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change the stated maturity date of the principal of (or premium or
make-whole amount, if any, on), or any installment of principal or interest on, any debt security issued under that indenture;
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reduce the principal amount of or any make-whole amount, the rate
of interest on or any additional amounts payable in respect thereof, or any premium payable upon the redemption of any debt security
issued under that indenture;
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reduce the amount of principal of an original issue discount security
or make-whole amount, if any, issued under that indenture payable upon acceleration of its maturity; or provable in bankruptcy
or adversely affect any right of repayment of a debt security;
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change the place or currency of payment of principal or any premium
or any make-whole amount or interest on, any debt security issued under that indenture;
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impair the right to institute suit for the enforcement of any payment
or delivery on or with respect to any debt security issued under that indenture;
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reduce the percentage in principal amount of debt securities of any
series issued under that indenture, the consent of whose holders is required to modify or amend the indenture or to waive compliance
with certain provisions of the indenture; or
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match any change that adversely affects the right to convert or exchange
any security or decrease the conversion/exchange rate or increase the conversion/exchange price.
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The holders of at least a majority in principal
amount of the outstanding debt securities of any series issued under that indenture may, with respect to that series, waive past
defaults under the indenture, except as described under “—Events of Default.”
Unless otherwise indicated in the applicable
prospectus supplement, we and the applicable indenture trustee may also amend and modify each indenture without the consent of
any holder for any of the following purposes:
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to evidence the succession of another person to our company;
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to add to our covenants for the benefit of the holders of all or any
series of debt securities;
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to add events of default for the benefit of the holders of all or
any series of debt securities;
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to add or change any provisions of the indentures to facilitate the
issuance of bearer securities;
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to change or eliminate any of the provisions of the applicable indenture
in respect of any series of debt securities, so long as any such change or elimination will become effective only in respect of
any series of securities when there is no outstanding security of that series which is entitled to the benefit of that provision;
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to establish the form or terms of debt securities of any series;
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to evidence and provide for the acceptance of appointment by a successor
indenture trustee;
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to cure any ambiguity, to correct or supplement any provision in the
applicable indenture, or to make any other provisions with respect to matters or questions arising under that indenture, so long
as the interests of holders of debt securities of any series are not adversely affected in any material respect by the actions
taken to cure, correct or supplement a provision in an indenture;
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to provide for conversion rights of the holders of the debt securities
of any series to enable those holders to convert those securities into other securities;
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to close the indenture with respect to the authentication and delivery
of additional series of securities or to qualify or maintain qualifications of the applicable indenture under the Trust Indenture
Act; or
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to supplement any of the provisions of an indenture as is necessary
to permit or facilitate the defeasance or discharge of any series of securities under specified provisions of the indenture, provided
that any such action shall not adversely affect the interests of the holders of securities of such series or any other series of
securities under the indenture in any material respect.
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Consolidation, Merger and Sale of Assets
Unless otherwise indicated in the applicable
prospectus supplement, we may consolidate or merge with or into any other corporation, and we may sell, lease or convey all or
substantially all of our assets to any corporation, provided that the resulting corporation, if other than our company, is a corporation
organized and existing under the laws of the United States of America or any U.S. state and assumes all of our obligations to:
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pay or deliver the principal and any premium or make-whole amount,
if any, and any interest on, the debt securities;
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perform and observe all of our other obligations under the indentures
and supplemental indentures; and
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we are not, or any successor corporation, as the case may be, is not,
immediately after any consolidation or merger, in default under the indentures.
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The indentures do not provide for any right
of acceleration in the event of a consolidation, merger, sale of all or substantially all of the assets, recapitalization or change
in our stock ownership. In addition, the indentures do not contain any provision which would protect the holders of debt securities
against a sudden and dramatic decline in credit quality resulting from takeovers, recapitalizations or similar restructurings.
Regarding the Indenture Trustee
The indenture trustee provides trust services
to us and our affiliates in connection with certain trust preferred securities and related junior subordinated debentures that
we currently have outstanding.
The occurrence of any default under either
the senior indenture, the subordinated indenture or the indenture between us and the indenture trustee relating to our junior subordinated
debentures could create a conflicting interest for the indenture trustee under the Trust Indenture Act. If that default has not
been cured or waived within 90 days after the indenture trustee has or acquired a conflicting interest, the indenture trustee would
generally be required by the Trust Indenture Act to eliminate that conflicting interest or resign as indenture trustee with respect
to the debt securities issued under the senior indenture or the subordinated indenture, or with respect to the junior subordinated
debentures issued to certain Delaware statutory trusts of ours under a separate indenture. If the indenture trustee resigns, we
are required to promptly appoint a successor trustee with respect to the affected securities.
The Trust Indenture Act also imposes certain
limitations on the right of the indenture trustee, as a creditor of ours, to obtain payment of claims in certain cases, or to realize
on certain property received in respect to any cash claim or otherwise. The indenture trustee will be permitted to engage in other
transactions with us, provided that, if it acquires a conflicting interest within the meaning of Section 310 of the Trust
Indenture Act, it must generally either eliminate that conflict or resign.
International Offering
If specified in the applicable prospectus
supplement, we may issue debt securities outside the United States. Those debt securities will be described in the applicable prospectus
supplement. In connection with any offering outside the United States, we will designate paying agents, registrars or other agents
with respect to the debt securities, as specified in the applicable prospectus supplement.
We will describe in the applicable prospectus
supplement whether our debt securities issued outside the United States: (1) may be subject to certain selling restrictions;
(2) may be listed on one or more foreign stock exchanges; and (3) may have special United States tax and other considerations
applicable to an offering outside the United States.
Defeasance
We may terminate or “defease”
our obligations under the senior indenture with respect to the senior debt securities of any series by taking the following steps:
(1) depositing irrevocably with the senior
indenture trustee an amount, which through the payment of interest, principal or premium, if any, will provide an amount sufficient
to pay the entire amount of the senior debt securities:
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in the case of senior debt securities denominated in U.S. dollars, U.S. dollars or U.S. government obligations;
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in the case of senior debt securities denominated in a foreign currency, of money in that foreign currency or foreign government
obligations of the foreign government or governments issuing that foreign currency; or
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a combination of money and U.S. government obligations or foreign government obligations, as applicable;
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(2) delivering:
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an opinion of independent counsel that the holders of the senior debt securities of that series will have no federal income
tax consequences as a result of that deposit and termination;
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an opinion of independent counsel that registration is not required under Investment Company Act of 1940;
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an opinion of counsel as to certain other matters;
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officers’ certificates certifying as to compliance with the senior indenture and other matters; and
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(3) paying all amounts due under the senior
indenture.
Further, the defeasance cannot cause an
event of default under the senior indenture or any other agreement or instrument and no default under the senior indenture or any
such other agreement or instrument can exist at the time the defeasance occurs.
Subordination
The subordinated debt securities will be
subordinated in right of payment to all “senior debt,” as defined in the subordinated indenture. In certain circumstances
relating to our liquidation, dissolution, receivership, reorganization, insolvency or similar proceedings, the holders of all senior
debt will first be entitled to receive payment in full before the holders of the subordinated debt securities will be entitled
to receive any payment on the subordinated debt securities.
If the maturity of any subordinated debt
securities is accelerated, we will have to repay all senior debt before we can make any payment on the subordinated debt securities.
In addition, we may make no payment
on the subordinated debt securities in the event:
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there is an event of default with respect to any senior indebtedness
which permits the holders of that senior indebtedness to accelerate the maturity of the senior indebtedness; and
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the default is the subject of judicial proceedings or we receive notice
of the default from an authorized person under the subordinated indenture.
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By reason of this subordination in favor
of the holders of senior indebtedness, in the event of an insolvency our creditors who are not holders of senior indebtedness or
the subordinated debt securities may recover less, proportionately, than holders of senior indebtedness and may recover more, proportionately,
than holders of the subordinated debt securities. Unless otherwise specified in the prospectus supplement relating to the particular
series of subordinated debt securities, “senior debt” is defined in the subordinated indenture as:
the principal, premium, if any, unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to us whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations,
and all other amounts payable under or in respect of the following indebtedness of us for money borrowed, whether any such indebtedness
exists as of the date of the indenture or is created, incurred, assumed or guaranteed after such date:
(i) any debt (a) for money
borrowed by us, or (b) evidenced by a bond, note, debenture, or similar instrument (including purchase money obligations)
given in connection with the acquisition of any business, property or assets, whether by purchase, merger, consolidation or otherwise,
but shall not include any account payable or other obligation created or assumed in the ordinary course of business in connection
with the obtaining of materials or services, or (c) which is a direct or indirect obligation which arises as a result of banker’s
acceptances or bank letters of credit issued to secure obligations of us, or to secure the payment of revenue bonds issued for
the benefit of us whether contingent or otherwise;
(ii) any debt of others described
in the preceding clause (i) which we have guaranteed or for which it is otherwise liable;
(iii) the obligation of us as
lessee under any lease of property which is reflected on our balance sheet as a capitalized lease; and
(iv) any deferral, amendment,
renewal, extension, supplement or refunding of any liability of the kind described in any of the preceding clauses (i), (ii) and
(iii).
“Senior debt” does not include:
(1) any such indebtedness, obligation or
liability referred to in clauses (i) through (iv) above as to which, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such indebtedness, obligation or liability is not superior in
right of payment to the subordinated debt securities, or ranks pari passu with the subordinated debt securities, (2) any such
indebtedness, obligation or liability which is subordinated to indebtedness of us to substantially the same extent as or to a greater
extent than the subordinated debt securities are subordinated, (3) any indebtedness to one of our subsidiaries and (4) the
subordinated debt securities.
The subordinated indenture does not limit
or prohibit the incurrence of additional senior indebtedness, which may include indebtedness that is senior to the subordinated
debt securities, but subordinate to our other obligations. Any prospectus supplement relating to a particular series of subordinated
debt securities will set forth the aggregate amount of our indebtedness senior to the subordinated debt securities as of a recent
practicable date.
The prospectus supplement may further describe
the provisions, if any, which may apply to the subordination of the subordinated debt securities of a particular series.
Restrictive Covenants
The subordinated indenture does not contain
any significant restrictive covenants. The prospectus supplement relating to a series of subordinated debt securities may describe
certain restrictive covenants, if any, to which we may be bound under the subordinated indenture.
DESCRIPTION OF UNITS
The following description, together with
the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the units that we may offer under this prospectus and any related unit agreements and unit certificates. While the terms summarized
below will apply generally to any units that we may offer, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any units offered under
that prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the Commission, any
form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before
the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject
to, and qualified in their entirety by reference to, all the provisions of such unit agreements and any supplemental agreements
applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we may offer under this prospectus and the complete unit agreement and any supplemental agreements that contain
the terms of the units.
We may issue, in one more series, units
comprised of shares of our common stock or preferred stock, warrants to purchase common stock or preferred stock, debt securities
or any combination of those securities. Each unit will be issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The
unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified date.
We may evidence units by unit certificates
that we issue under a separate agreement. We may issue the units under a unit agreement between us and one or more unit agents.
If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in connection with the
units and will not assume any obligation or relationship of agency or trust for or with any registered holders of units or beneficial
owners of units. We will indicate the name and address and other information regarding the unit agent in the applicable prospectus
supplement relating to a particular series of units if we elect to use a unit agent.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
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the designation and terms of the units and of the securities comprising
the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those
described below; and
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any
provisions
for the issuance, payment, settlement, transfer
or exchange of the units or of the securities comprising the units.
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The other provisions regarding our common
stock, preferred stock, warrants and debt securities as described in this section will apply to each unit to the extent such unit
consists of shares of our common stock, preferred stock, warrants and debt securities.
LEGAL MATTERS
Arnold & Porter LLP has rendered
an opinion that the securities offered hereby, when sold, will be legally issued, fully paid and non-assessable. Any underwriters
will also be advised about the validity of the securities and other legal matters by their own counsel, which will be named in
the prospectus supplement.
EXPERTS
The financial statements and management’s
assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on
Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K
for the year ended December 31, 2015 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us to incorporate by reference
the information that we file with the SEC, 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. These documents may include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as Proxy Statements. Any documents that we subsequently file with the SEC will automatically update and replace the information
previously filed with the SEC. Thus, for example, in the case of a conflict or inconsistency between information set forth in this
prospectus and information incorporated by reference into this prospectus, you should rely on the information contained in the
document that was filed later. Any documents that we file with the SEC after the date of this Registration Statement and prior
to the effectiveness of this Registration Statement shall be deemed to be incorporated by reference into this prospectus.
This prospectus incorporates by reference
the documents listed below that we previously have filed with the SEC and any additional documents that we may file with the SEC
(File No.000-21429) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding portions thereof deemed to be
“furnished” to the SEC pursuant to Item 2.02, Item 7.01 or Item 9.01 of a Current Report on Form 8-K)
between the date of this prospectus and the termination of the offering of the securities:
1. Our Annual Report on Form 10-K
for the year ended December 31, 2015 filed with the Commission on February 29, 2016;
2. Our
Current Reports on Form 8-K filed with the Commission on February 29, 2016, March 4, 2016, March 22, 2016, April 14,
2016 and May 26, 2016;
3. Our Quarterly Reports on
Form 10-Q for the quarters ending March 31, 2016 and June 30, 2016 and filed with the Commission on May 4, 2016 and August 3, 2016,
respectively;
4. Our definitive Proxy Statement
on Schedule 14A, filed with the Commission on April 14, 2016; and
5. The description of our common
stock contained in our Registration Statement on Form 8-A filed with the SEC on September 25, 1996, including any amendment
or report filed for the purpose of updating such description.
You can obtain a copy of any or all of the
documents, at no cost, by requesting them in writing, by email or by telephone at the following address:
Dawn Schottlandt
Senior Director, Investor Relations/Corporate
Communications
ArQule, Inc.
One Wall Street
Burlington, MA 01803
(781) 994-0300
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration
statement under the Securities Act that registers the distribution of the securities offered under this prospectus. The registration
statement, including the attached exhibits and schedules and the information incorporated by reference, contains additional relevant
information about us and the securities. The rules and regulations of the SEC allow us to omit from this prospectus certain information
included in the registration statement.
In addition, we file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may read and copy this information and the registration
statement at the SEC public reference room located at 100 F Street, N.E., Washington D.C. 20549. Please call the SEC at 1-800-SEC-0330
for more information about the operation of the public reference room.
In addition, any information we file with
the SEC, including the documents incorporated by reference into this prospectus, is also available on the SEC’s website at
http://www.sec.gov. We also maintain a web site at http://www.arqule.com, which provides additional information about our company
and through which you can also access our SEC filings. The information set forth on our web site is not part of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance
and Distribution.
The following table sets forth the estimated
costs and expenses in connection with the sale and distribution of the securities being registered, all of which will be paid by
ArQule. All amounts are estimated, except the SEC registration fee.
|
SEC Registration
|
|
$
|
1,536
|
|
|
|
|
|
|
|
|
Accounting fees and expenses*
|
|
$
|
10,000
|
|
|
|
|
|
|
|
|
Printing fees and expenses*
|
|
$
|
5,000
|
|
|
|
|
|
|
|
|
Legal fees and expenses*
|
|
$
|
15,000
|
|
|
|
|
|
|
|
|
Miscellaneous expenses*
|
|
$
|
5,000
|
|
|
|
|
|
|
|
|
Total*
|
|
$
|
36,536
|
|
*Estimated
The expenses set forth above relate solely
to the preparation and filing of this Registration Statement. We may incur additional expenses in connection with any offering
of the securities registered hereunder.
ITEM 15. Indemnification of Directors
and Officers.
Section 145 of the Delaware General
Corporation Law (“DGCL”), permits, under certain circumstances, the indemnification of 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 in a similar capacity for another enterprise
at the request of the corporation. To the extent that a present or former director or officer of the corporation has been successful
in defending any such proceeding, the DGCL provides that he shall be indemnified against expenses (including attorneys’ fees),
actually and reasonably incurred by him in connection therewith. With respect to a proceeding by or in the right of the corporation,
such person may be indemnified against expenses (including attorneys’ fees), actually and reasonably incurred, 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. The DGCL
provides, however, that indemnification shall not be permitted in such a proceeding if such person is adjudged liable to the corporation
unless, and only to the extent that, the court, upon application, determines that he is entitled to indemnification under the circumstances.
With respect to proceedings other than those brought by or in the right of the corporation, notwithstanding the outcome of such
a proceeding, such person may be indemnified against judgments, fines and amounts paid in settlement, as well as expenses, 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, had no reason to believe his conduct was unlawful. Except with respect to mandatory indemnification
of expenses to successful defendants as described in the preceding paragraph or pursuant to a court order, the indemnification
described in this paragraph may be made only upon a determination in each specific case (1) by majority vote of the directors
that are not parties to the proceeding, even though less than a quorum, or (2) by a committee of the directors that are not
a party to the proceeding who have been appointed by a majority vote of directors who are not party to the proceeding, even though
less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (4) by the stockholders.
The DGCL permits a corporation to advance
expenses incurred by a proposed indemnitee in advance of final disposition of the proceeding, provided that the indemnitee undertakes
to repay such advanced expenses if it is ultimately determined that he is not entitled to indemnification. Also, a corporation
may purchase insurance on behalf of an indemnitee against any liability asserted against him in his designated capacity, whether
or not the corporation itself would be empowered to indemnify him against such liability. ArQule has adopted provisions in its
bylaws that provide for indemnification of its officers and directors to the maximum extent permitted under the DGCL. As authorized
by the DGCL, ArQule’s Restated Certificate of Incorporation limits the liability of directors of ArQule for monetary damages.
The effect of this provision is to eliminate the rights of ArQule and its stockholders to recover monetary damages against a director
for breach of the fiduciary duty of care as a director except in certain limited situations. This provision does not limit or eliminate
the rights of ArQule or any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach
of a director’s duty of care. This provision will not alter the liability of directors under federal securities laws. ArQule
has purchased an insurance policy that purports to insure the officers and directors of ArQule against certain liabilities incurred
by them in the discharge of their functions as such officers and directors. The foregoing descriptions are only general summaries.
For additional information we refer you to the full text of our Restated Certification of Incorporation, filed as Exhibit 3.1
to our Annual Report on Form 10-K filed on March 2, 2011 and our Amended and Restated Bylaws, filed as Exhibit 3.1 to
our Form 8-K filed on November 19, 2007.
ITEM 16. Exhibits
The exhibits to this Registration Statement are described in
the Exhibit Index below.
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, as amended;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
Provided, however, that
paragraphs (A)(1)(i), (A)(1)(ii) and (A)(1)(iii) of this section do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) (§230.424(b) of this
chapter) that is part of 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) That, for
the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the Registrant
is relying on Rule 430B (§230.430B of this chapter):
(A) Each prospectus
filed by the Registrant pursuant to Rule 424(b)(3) (§230.424(b)(3) of this chapter) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) (§230.424(b)(2), (b)(5), or (b)(7) of this chapter)
as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) (§230.415(a)(1)(i), (vii), or (x) of this chapter) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii) If the Registrant
is subject to Rule 430C (§230.430C of this chapter), each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A (§230.430A of this chapter), shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for
the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The undersigned Registrant undertakes
that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424
(§230.424 of this chapter);
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The portion of
any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or
its securities provided by or on behalf of the undersigned Registrant; and
B. 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 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, 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 amendment to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Burlington, Commonwealth of Massachusetts, on September 23 , 2016.
|
|
ARQULE, INC.
|
|
|
|
|
|
|
|
By:
|
/s/ Paolo Pucci
|
|
|
|
Paolo Pucci
|
|
|
|
Chief Executive Officer
|
|
|
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
|
|
/s/ Paolo Pucci
|
|
Chief Executive Officer and Director
|
|
September 23 , 2016
|
|
Paolo Pucci
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Peter S. Lawrence
|
|
President and Chief Operating Officer
|
|
September 23 , 2016
|
|
Peter S. Lawrence
|
|
(Principal Financial Officer)
|
|
|
|
|
|
|
|
|
|
/s/Robert J. Weiskopf
|
|
Chief Financial Officer
|
|
September 23 , 2016
|
|
Robert. J. Weiskopf
|
|
and Treasurer
|
|
|
|
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
*
|
|
Director — Chairman of the Board
|
|
September 23 , 2016
|
|
Patrick J. Zenner
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 23 , 2016
|
|
Timothy C. Barabe
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 23 , 2016
|
|
Susan L. Kelley
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 23 , 2016
|
|
Ronald M. Lindsay
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 23 , 2016
|
|
Michael D. Loberg
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 23 , 2016
|
|
William G. Messenger
|
|
|
|
|
|
* By:
|
/s/ Peter S. Lawrence
|
|
|
|
Peter S. Lawrence, Attorney-in-Fact
|
|
INDEX TO EXHIBITS
The following documents are filed herewith
(unless otherwise indicated) and made a part of this registration statement:
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
Exhibit 1.1
|
|
Form of Underwriting Agreement for Common Stock*
|
|
|
|
|
|
Exhibit 1.2
|
|
Form of Underwriting Agreement for Preferred Stock*
|
|
|
|
|
|
Exhibit 1.3
|
|
Form of Underwriting Agreement for Warrants*
|
|
|
|
|
|
Exhibit 1.4
|
|
Form of Underwriting Agreement for Debt Securities*
|
|
|
|
|
|
Exhibit 1.5
|
|
Form of Underwriting Agreement for Units*
|
|
|
|
|
|
Exhibit 3.1
|
|
Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company’s Annual Report on Form 10-K filed on March 2, 2011 (File No. 000-21429) and incorporated by reference herein)
|
|
|
|
|
|
Exhibit 3.2
|
|
Amended and Restated Bylaws of the Company (filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on January 27, 2014 and incorporated by reference herein)
|
|
|
|
|
|
Exhibit 4.1
|
|
Form of Warrant Agreement for Common Stock, including form of Warrant*
|
|
|
|
|
|
Exhibit 4.2
|
|
Form of Warrant Agreement for Preferred Stock, including form of Warrant*
|
|
|
|
|
|
Exhibit 4.3
|
|
Form of Indenture for Senior Debt Securities
( previously filed)**
|
|
|
|
|
|
Exhibit 4.4
|
|
Form of Note for Senior Debt Securities*
|
|
|
|
|
|
Exhibit 4.5
|
|
Form of Indenture for Subordinated Debt Securities
( previously filed)**
|
|
|
|
|
|
Exhibit 4.6
|
|
Form of Note for Subordinated Debt Securities*
|
|
|
|
|
|
Exhibit 4.7
|
|
Form of Unit Agreement*
|
|
|
|
|
|
Exhibit 4.8
|
|
Form of Certificate of Designations*
|
|
|
|
|
|
Exhibit 5.1
|
|
Opinion of Arnold & Porter LLP (filed herewith)
|
|
|
|
|
|
Exhibit 12
|
|
Computation of Ratio of Earnings to Fixed Charges***
|
|
|
|
|
|
Exhibit 23.1
|
|
Consent of PricewaterhouseCoopers LLP,
an Independent Registered Public Accounting Firm ( previously filed)
|
|
|
|
|
|
Exhibit 23.2
|
|
Consent of Arnold & Porter LLP (contained in opinion of Arnold & Porter LLP filed as Exhibit 5.1)
|
|
|
|
|
|
Exhibit 24.1
|
|
Powers of Attorney of certain directors of the
Company ( previously filed )
|
|
|
|
|
|
Exhibit 25.1
|
|
Form T-1 Statement of Eligibility of Trustee to act as Trustee under the Indenture for Senior Debt Securities*
|
|
Exhibit 25.2
|
|
Form T-1 Statement of Eligibility of Trustee to act as Trustee under the Indenture for Subordinated Debt Securities*
|
*To be filed by amendment or by a Current Report
on Form 8-K, or where applicable, incorporated by reference from a subsequent filing, if the Company enters into any such
agreement or issues any such instrument in connection with the offer of any securities registered hereunder.
** If applicable, any specific Indenture executed
by the Trustee thereunder and the Company will be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
***To be filed by amendment or by a Current Report
on Form 8-K, or where applicable, incorporated by reference from a subsequent filing, if we offer debt securities and/or preference
equity securities in the future.
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